Harris v The Racing Integrity Board

[2023] NZHC 3361

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-307

[2023] NZHC 3361

BETWEEN

PAUL DAVID JOSEPH HARRIS

Applicant

AND

THE RACING INTEGRITY BOARD

Respondent

Hearing:	26 September 2023
Appearances:	S M Grieve KC and S J Bird for Applicant B H Dickey and D B Dow for Respondent
Judgment:	24 November 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 24 November 2023 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HARRIS v THE RACING INTEGRITY BOARD [2023] NZHC 3361 [24 November 2023]

Introduction

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

[2]                 On 8 December 2021, the Racing Integrity Board (the Board) instituted proceedings against Paul Harris, a Canterbury-based horse trainer, and Rebecca Rae, a licensed stable hand employed by Mr Harris, in relation to Riverfalls’ death.

[3]                 The charge,1 which was brought under r 801(1)(s)(i) of the New Zealand Thoroughbred Racing Inc Rules of Racing 2021 (the Rules),2  alleged that between   6 June 2021 and 12 October 2021, Mr Harris and Ms Rae 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”.

[4]                 The Board convened an adjudicative committee (the Committee) to hear the charge. It sat over five days in April and May 2022.

[5]                 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).

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

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

1      Although it is also referred to as “the information” by some participants in the process, I use the more commonly understood term “charge” throughout this judgment.

2      The Rules were made pursuant to s 37 of the Racing Industry Act 2020.

The grounds of review

[8]                 Mr Harris advances three grounds of review, having abandoned one ground when the Committee accepted that the Board could not lead further evidence in support of the amended charge.

[9]The remaining grounds are as follows:

(a)the charge is ultra vires the Rules and the Racing Industry Act 2020 (the Act) because;

(i)the charge as amended does not allege conduct  contrary to     r 801(1)(s)(i) as it fails to identify a positive act as that rule requires and, instead, focuses on omissions;

(ii)the statement that Mr Harris “failed to take all reasonable steps” was not particularised and so denied Mr Harris the right, under s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA), to know the case against him; and

(iii)the proceedings before the Committee cannot be salvaged by amending the charge to allege a breach of r 1402 (which proscribes failures to “take all reasonable steps to ensure that the physical … needs of the horse are met … in accordance with

… good practice; and … scientific knowledge”) as the Board neither particularised the charge to specify the reasonable steps either defendant failed to take, nor did it lead evidence about these;

(b)the Tribunal in this case was not independent of the Committee whose decision it was required to review; and

(c)the Committee’s amendment of the charge to add seven particulars after closing submissions breached s 27(1) of NZBORA.

Background

[10]             Before going on to discuss the grounds of review, it is necessary to set out more of the background to this matter. While I accept that it is not for me to determine the factual disputes which are before the Committee, there are a range of uncontested facts which provide important context to the issues raised by Mr Harris.

[11]             Mr Harris has been a licensed thoroughbred trainer since 1998.3 He runs a training establishment in Swannanoa, training around 25 horses in work and employing three fulltime and one casual employees. Ms Rae has fulltime employment with Mr Harris’ business as its stable manager. She has been a licensed jockey and has worked as a track rider and stable hand for a number of years.

[12]             Mr Harris leased the horse Riverfalls from 4 August 2020.   After a race on   6 June 2021, he decided she would benefit from a period of “spelling”, that is, a break from racing. Riverfalls and two other horses were sent to Ms Rae’s property in Loburn to spell on 23 June 2021. All three horses were treated for worms prior to the shift. Given it was winter, a cover was placed on Riverfalls. She was also supplied with supplementary feed in addition to hay and grass.

[13]             On 15 August 2021, Ms Rae took Riverfalls’ cover off. She then sent a photograph of Riverfalls to Mr Harris saying she “looks like shit” and “needs a really good worm”. It was agreed that Riverfalls should be wormed and her feed increased, both of which occurred.

[14]             In early September, Ms Rae noticed that Riverfalls had lost condition. Following discussion with Mr Harris, the horse’s diet was supplemented with a protein-based feed.

[15]             Ms Rae decided that Riverfalls needed to see a vet, and, with Mr Harris’ approval, Dr Lillian Bonner (a vet who specialised in musculoskeletal issues), was contacted on  14  September  2021.  An  appointment  was  initially  scheduled  for 22 September 2021, but because of both Dr Bonner’s and Ms Rae’s work

3      Although Mr Harris points out that there were periods he did not have his license as his career was not continuous.

commitments the appointment was deferred to 30 September 2021. On that date, Riverfalls was taken back to Mr Harris’ stables where she was seen by Dr Bonner. Dr Bonner, Mr Harris and Ms Rae were all very concerned at her condition. Dr Bonner observed that the horse was emaciated and had a low body condition score (1–2/10). She took samples for diagnostic analysis and prescribed a feeding plan and a course of worm treatment.

[16]             On 6 October 2021, Ms Rae texted Dr Bonner saying that Riverfalls was “picking up”. However, on 11 October, the horse had diarrhoea. On noticing this,  Mr Harris sent a text to Dr Ranken, another vet, saying he had “one really sick horse”. Dr Ranken could not attend on the next two days but arranged for another vet to attend on 12 October. However, a senior racing investigator for the Board, having received a confidential tip-off about the state of Riverfalls, visited the property on that date and, as already noted, determined the horse had to be euthanised.

[17]             A post-mortem investigation was conducted. While the first histology report on the post-mortem slides identified encysted (hibernating) worm larvae only, a second histology report identified encysted and free worm larvae. The only diagnosed cause of the horse’s emaciation was “heavy strongyle parasitism and associated mucosal pathology in the large intestine … severe enough to at least partially explain the reported emaciation”. There was no evidence of any other cause of the emaciation.

The proceedings before the Committee

[18]             The charging document which was served on Mr Harris and Ms Rae alleged that:

Between 06th of June 2021 and the 12th October 2021 at North Canterbury, Paul David Joseph Harris, together with Rebecca Claire Rae, 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.

[19] While the accompanying summary of facts referred, in passing, to s 4 of the Animal Welfare Act 1999 and to the New Zealand Thoroughbred Racing guidelines for “nutrition, husbandry and health”, which it said “were not met in this case”, the allegation was not otherwise elaborated on.

[20]             Before the hearing, Ms Grieve KC, counsel for Mr Harris, requested that the Board particularise the standards it  alleged he  needed  to meet  but  had  not.  On  18 March 2022, counsel for the Board declined to do so, saying “[i]t is not necessary (nor will it often be possible) for the [Board] to particularise exactly which of these reasonable steps the defendant failed to take; rather, inferences are drawn from the state of the horse when observed by a veterinarian that at least some of those reasonable steps were not taken”.

[21]             In opening submissions, however, the Board suggested that the reasonable steps which Mr Harris and Ms Rae failed to take were:

(a)to seek veterinarian advice before 30 September 2021; and

(b)to   seek    further    assistance    when    Riverfalls    deteriorated   after Dr Bonner’s visit.

[22]             Ms Grieve notes that during the hearing the Board called three veterinarians: Dr Bonner, Dr Corser and Dr Ranken. She says none of their written statements contained opinion evidence about reasonable steps which should have been taken by either Mr Harris or Ms Rae. Their evidence traversed the factual circumstances of their involvement. In response to questions from counsel for the Board, Dr Bonner initially said a vet should have been called two weeks before 14 September, but then, in re-examination, said a vet should have been called between mid-August and early September.

[23]             Closing submissions were filed and presented on 23 May 2022. Counsel for Mr Harris submitted the charge was fatally deficient because it failed to disclose the particular steps which the Board alleged Mr Harris ought to have taken and there was no evidence which could establish those failures.

[24]             In the Ruling, the Committee, while not accepting that Mr Harris was prejudiced by the charge not being particularised, nevertheless, amended the charge in reliance on r 915(4) of the Rules to add seven particulars  of the reasonable steps   Mr Harris and Ms Rae failed to take. Those particulars were:

(a)They failed to have “RIVERFALLS” seen by a veterinary surgeon between mid August and 30 September 2021.

(b)They failed to have “RIVERFALLS” seen by a veterinary surgeon at the stable after 30 September 2021 and prior to 12 October 2021.

(c)Mr Harris failed to attend and inspect the horse “RIVERFALLS” at any time it was spelling from June 2021 until 30 September 2021.

(d)Ms Rae failed to inspect “RIVERFALLS” physical condition without a rug cover, for 5 weeks from early July until mid August 2021.

(e)They each failed to provide adequate sufficient medication to treat or remedy the severe worms burden of “RIVERFALLS”.

(f)They each neglected to provide adequate and timely treatment for a severe wither sore.

(g)They failed to remove the overgrown shoes of “RIVERFALLS” in a timely manner.

[25]             The Committee then explained that “any party if they wish, may adduce further evidence from themselves and/or other witnesses for further examination, for completeness”. The suggestion that “any party” might call further evidence (or recall a witness) formed part of Mr Harris’ appeal to the Tribunal, although it is now accepted by the Board that it is not entitled to adduce further evidence.

[26]             On 31 May 2022, Mr Harris appealed the Ruling. A Tribunal was formally appointed  on   13   June   2022   and   comprised   Mr Murray   McKechnie   and   Mr Alan Harper, both senior lawyers. The appeal challenged the Ruling amending the charge to include seven particulars and directing a new hearing with further evidence on the amended charge, saying to do so caused prejudice to Mr Harris and Ms Rae by requiring them to answer “a materially different charge based on further evidence which the [Board] may choose to call”, and requiring the respondents to incur significant further cost and stress.

[27]             The Tribunal dismissed the appeal on the papers on 26 June 2022, saying that the Committee amended the charge “to assist Mr Harris and his counsel” and he was not prejudiced by it, noting he and Ms Rae were “given the opportunity to adduce further evidence” in response. It also noted it had no jurisdiction to dismiss the charge.

[28]             Despite the Tribunal upholding the Ruling, on 3 August 2022 the Committee issued a minute in which it recalled its earlier statement that any party could call evidence, saying that was an error and, under the Rules, only the persons charged were entitled to call further evidence.

[29]In light of that background narrative, I now turn to the three grounds of review.

Are the proceedings against Mr Harris ultra vires the Act and the Rules?

Submissions for the applicant

[30]             As Ms Grieve points out, the Board’s powers derive from, and are circumscribed by, the Act. The Board can appoint adjudicative committees which can hear and adjudicate matters, and impose penalties, “in accordance with racing rules”.4 The corollary is that conduct which does not constitute an offence under the Rules cannot be the subject of proceedings before an adjudicative committee.

[31]             In the present case, Ms Grieve argues that the Board was required to, but failed to, identify any positive act for which Mr Harris was liable under r 801(1)(s)(i). That rule provides that:

(1)A person commits a Serious Racing Offence … who:

…

(s)either by himself or in conjunction with any other person:

(i)does or permits or suffers to be done any act which an Adjudicative Committee deems fraudulent, corrupt or detrimental to the interests of racing ...

[32]             Ms Grieve submits that the rule requires a positive “act”, noting that the Rules are precisely drafted and where they create a liability for omissions, they do so expressly.  For example, r 801(1)(u) uses the phrase “does or omits” any act as does  r 802(1)(e) and (f). Ms Grieve says that throughout the hearing, the Board’s case was clearly about omissions, not acts. She says the Board only alleges that Mr Harris ought to have done things which he did not, using words such as “failed” or “neglected”

4 Racing Industry Act 2020, s 44(1)(e).

when formulating its case. Ms Grieve also says that the Board’s attempt to address this by arguing that the omissions were not identified in a vacuum, but arose during “the act” of Mr Harris being the trainer of the horse and, in Ms Rae’s case, in the act of her spelling the horse, does not disguise the fact that the Board’s case was squarely about omissions.

[33]             Ms Grieve makes five points for why Mr Harris being a trainer is not an “act” that, could breach the Rules. First, if the “act” is being a horse trainer, that clearly does not contravene the Rules. Second, possessing a Class A licence to train horses is not an “act”, but is a status created by the Rules and says nothing about whether the Rules have been breached. Third, having identified Mr Harris as being a trainer, the Board has still not identified which of his acts breach r 801(1)(s)(i). Indeed, the Board’s case does not identify any positive act by Mr Harris for criticism. Fourth, if the Board is right, then whenever the word “omits” is expressly included in the Rules, it is, on the Board’s analysis, redundant. Finally, if a failure to take all reasonable steps to ensure that the physical health needs of a horse are met can be prosecuted under    s 801(1)(s)(i), then r 1402 would have no independent application. Rule 1402(1) requires persons to whom that rules applies to:

… take all reasonable steps to ensure that the physical, health, and behavioural needs of the horse are met in a manner that is in accordance with both:

(a)good practice; and

(b)scientific knowledge.

Rule 1402(8) deems any breach of r 1402 to be a serious racing offence.

[34]             The second aspect of the applicant’s argument that the charge was ultra vires the Act and the Rules was that the Committee wrongly permitted Mr Harris to be prosecuted on a charge which lacked particulars and failed to inform him of the substance or the pith of the allegations against him. For that reason, both the Committee and the Tribunal on appeal ought to have dismissed the charge.

[35]             Ms Grieve points to the well-accepted principle that a fundamental aspect of natural justice is the accused’s right to know the case against them.5 Furthermore, where an offence alleges a failure to take all reasonable steps, it has never been sufficient for the prosecutor to simply make a bald allegation that the defendant failed to take all reasonable steps. The charge should identify the steps the defendant did not take but which the prosecutor says should have been taken.6 Ms Grieve argues these are not peripheral details which can be left to emerge as the case unfolds. Rather, they are essential to the defendant’s decision about what evidence he or she could call to address those allegations. Ms Grieve is also critical of the failure in the charge to discriminate between Mr Harris and Ms Rae and to identify which acts each was reasonably responsible for.

[36] Ms Grieve adds that the summary of facts did not address any deficiencies in the charge. It simply directed attention to the animal welfare guidelines published by New Zealand Thoroughbred Racing and to the Animal Welfare Act, without identifying what was relevant in those documents to the charge Mr Harris faced.

[37]             Finally, Ms Grieve argues the deficiencies in the charge are incapable of rectification by reframing the charge as a breach of r 1402(1). First, Ms Grieve says the Board led no evidence about what Mr Harris ought to have done. The vets simply gave evidence about their factual observation of the horse’s condition and their opinion on when the horse would have likely started to visibly deteriorate. They did not identify what was reasonable for each defendant to do and what they unreasonably failed to do at the relevant times. Ms Grieve says this is important because the vets agreed the diagnosed cause of the horse’s emaciation, being parasitic worms, was appropriately treated. There was no evidence that the consecutive worming treatments given in June and August 2021, and again following Dr Bonner’s visit, were inadequate. Despite this treatment and proper nutrition, the horse became emaciated in a short period of time. This made it particularly important in these circumstances to say what a reasonable person in Mr Harris’ shoes should have done.

5      Kanda v Government of the Federation of Malaya [1962] AC 322 (PC) at 337–338.

6      Talley’s Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198 at [41].

[38]             Ms Grieve then critiques the particulars of the amended charge, observing, variously, that there was no evidence given to support certain particulars and that some of the particulars did not appear to have anything to do with the deterioration in the horse’s condition which led to the euthanasia. However, in my view, these are factual matters which go to the merits of the prosecution case and are not appropriately addressed on an application for review. It is for the Committee to determine whether there is sufficient evidence to prove the charge it is hearing.

Submissions for the respondent

[39]             Before addressing the grounds of review, Mr Dickey makes two general observations. The first is that the Court should be cautious about making any determination in relation to decisions of a specialist tribunal such as the Committee that operates with specialist knowledge. Second, he notes that this Court is being invited to dismiss a charge that has not yet been determined. The applicant has appeal rights should the charge be found proved and the High Court should only intervene where it is “imperative” to do so and where an alternative remedy does not exist.7

[40]             In addressing the ground of  review that the proceedings  were ultra vires,   Mr Dickey does not accept that the allegations fall outside the scope of r 801(1)(s)(i). He accepts the core element of the charge is an omission but says it does not occur in a vacuum. The act the Board says was detrimental to the interests of racing was the manner in which Mr Harris carried out his role as trainer of Riverfalls. This engages his actions in fulfilling this role, not the status of the role, and there is no requirement to identify a single act for the purposes of the charge. If similar failures were committed by people who did not hold such roles in the racing industry, their conduct (while raising animal welfare concerns) would not be an act detrimental to the interests of racing.

[41]             Mr Dickey also does not accept the distinction between Ms Rae’s responsibility and Mr Harris’ responsibility, saying “[a]s trainer of Riverfalls, he remained ultimately responsible for ensuring her welfare needs were met” and he could not “subcontract others” to take on that responsibility.

7      Angus v District Court at Wellington [2017] NZHC 2879, [2018] NZAR 1804 at [23].

[42]             Mr Dickey disputes the allegation that the charge was not adequately particularised, saying the inferences to be drawn from the factual background were clear indicators that all reasonable steps had not been taken regarding the horse’s welfare. Mr Dickey further notes that while s 17(4) of the Criminal Procedure Act 2011 requires a charge to contain “sufficient particulars to fully and fairly inform the defendant of the substance of the offence that it is alleged that the defendant has committed”, there is no analogous requirement under the Rules. Furthermore, the Court should be hesitant to read this requirement into the Rules, noting these are not criminal proceedings but are disciplinary proceedings before a specialist sport tribunal. That context must be considered before reading in criminal standards to such proceedings.

[43]While Mr Dickey acknowledges the Court of Appeal endorsed the approach in

Police v Wyatt, where it was said that “the substance, the essence or pith, of the charge

… must be revealed by the particulars, not the details relied upon to establish the charge”,8 he says that consideration of whether a charge conveys the substance of the charge will always be contextual. Here, the Board’s case was that it could be inferred from the state of Riverfalls at the time she was euthanised that all reasonable steps had not been taken as, if they had, the horse would not have been in the state where it needed to be immediately euthanised. Mr Dickey says that there were a myriad of ways in which Mr Harris could have taken steps to ensure the horse’s welfare needs were met, and it was not necessary or practical for the Board to specify which of these steps he should have taken, as different combinations could have achieved the same outcome.

[44]             The real issue is whether Mr Harris was unfairly prejudiced by the way the charge was drafted. Mr Dickey says he was not because:

(a)the summary of facts made clear that the core failing was a failing to obtain adequate and timely veterinary care for the horse;

8      Police v Wyatt [1966] NZLR 1118 (CA) at 1133; cited in Talley’s  Group  Ltd  v  WorkSafe New Zealand, above n 6, at [39].

(b)the summary of facts referred to the Animal Welfare Act and industry guidelines regarding the health and welfare of needs of thoroughbred horses;

(c)the formal witness statements were served on Mr Harris before the hearing;

(d)in any event, Mr Harris, as a licensed thoroughbred trainer for 25 years, would have been well aware of the minimum standards for nutrition and health of the animals;

(e)the Board made opening statements which were consistent with the allegations contained in the summary of facts; and

(f)the applicant clearly understood the pith or essence of the allegation as he advanced a fulsome defence to the charge.

[45]             Mr Dickey disputes the assertion that the evidence was insufficient to support the charge. Mr Dickey cautions against this Court effectively trying to determine the sufficiency of the evidence. He submits that an inference is clearly available from the evidence that the applicant failed to take all reasonable steps, saying:

(a)it is inexplicable that Mr Harris did not arrange for a vet to see Riverfalls when she was continuing to deteriorate;

(b)although he knew Riverfalls’ condition was still sufficiently troubling that vet care was required by mid-September, he did not even see the horse until it arrived back at his stables on 30 September; and

(c)despite the horse’s poor condition on 30 September, she was not seen by a vet again for the next 12 days, at which point the horse was described by Dr Ranken as being “the worst [he] had seen”.

Accordingly, the applicant cannot establish that the charge was ultra vires the Rules and this ground of review must fail.

Discussion

[46]             I begin by considering Mr Dickey’s overarching submissions that it is both premature to intervene in the adjudicative process by way of judicial review and that the Court should be hesitant to make a determination in relation to decisions of a specialist tribunal such as the Committee.

[47]             I accept that this Court should show deference to specialist bodies such as professional disciplinary bodies on matters within their sphere of expertise. However, where the issues involve pure questions of law, I see no need to be so hesitant. If, for example, there is no jurisdiction to proceed, the participants should not have to wait until the end of the adjudicative process to find that out.

[48]             I also accept, as Mr Dickey says, that the scope for judicial review proceedings to challenge a decision to proceed with a charge is “extremely narrow”. However, I do not accept the analogy with reviewing or seeking to review decisions in respect of criminal charges under the Criminal Procedure Act is applicable here. The Criminal Procedure Act provides “carefully crafted appeal rights” which the courts are reluctant to allow judicial review to interrupt.9 Here, the issue is whether there is jurisdiction to bring the particular charge under the Board’s own rules. This is not one court intervening in the process of another court, but rather, the High Court intervening to ensure there is jurisdiction for a statutory body to proceed with the charge proposed under its own rules.

[49]             Furthermore, there is clearly jurisdiction to intervene prior to the charge being determined. The Judicial Review Procedure Act 2016 specifically provides for the judicial review of a “proposed” exercise of a statutory power.10 This permits the Court to intervene before a charge is heard.

[50]             By way of example, in Cropp v Judicial Committee, the court heard an application for judicial review as to the lawfulness of a rule which required Ms Cropp

9      DGN v Auckland District Court [2015] NZHC 3338, [2018] NZAR 137 at [28] and [29]; and

Angus v District Court at Wellington, above n 7, at [29].

10     Judicial Review Procedure Act 2016 s 3(1)(c).

to provide a urine sample after riding in a race.11 The argument as to whether the rule breached NZBORA, and thus was unlawful, was heard before the hearing of the charge was completed.

[51]             Similarly, in Duncan v Medical Practitioners Disciplinary Committee, the Court was prepared to intervene in the framing of a disciplinary charge against a medical practitioner.12 In Duncan, the applicant for review faced a charge of disgraceful conduct in a professional respect containing multiple particulars. At issue was whether it was permissible to present such an omnibus charge. While the Court said that a charge of such unusual width and form was not to be encouraged, it held it was appropriate in an unusual case such as the one in question.13 However, the Court gave guidance on how the Council should set out its findings on the charge.14

[52]             While in the end the challenge to the charge was not upheld, the Court rejected a submission that the High Court had no jurisdiction on the review application to make any order in relation to the form of the charge.15 The Court held the availability (in that case) of a right of appeal to the High Court could not exclude judicial review of the preliminary proceedings at an earlier stage. Furthermore, while the ultimate right of appeal may tell against the exercise of a discretion to grant earlier relief, where there was a serious issue as to whether the charge was in order “it may obviously be convenient to have that issue determined before embarking on a hearing of the charge”.16

[53]             In the present case, the primary issue is whether the allegations contained in the charge can be brought under a rule which requires the commission of an “act”. In my view, the applicant is correct to draw the distinction between rules which address acts and those which address acts or omissions. Despite the semantic exercise engaged in by the respondent, I am unpersuaded that the alleged omissions of Mr Harris and Ms Rae can be cast as an “act”. While Mr Dickey says that the act which was allegedly

11     Cropp v Judicial Committee [2007] NZAR 465 (HC); Cropp v A Judicial Committee [2007] NZCA 423, [2008] NZAR 50; and Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774.

12     Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513 (CA).

13     At 548.

14     At 547.

15     At 539.

16     At 539.

detrimental to the interests of racing was the manner in which the applicant carried out his role as trainer of Riverfalls, that can only be particularised by reference to omissions. If an act can include an omission or sequence of omissions by a member of the racing industry, then I agree with the applicant that the inclusion of the word “omits” in some of the rules giving rise to serious racing offences would be redundant. The decision to exclude the word “omission” from r 801(1)(s)(i) is deliberate and must be respected when bringing a charge under that rule. Furthermore, the language of “fraudulent, corrupt or detrimental” to the interests of racing colours the type of act envisaged to be captured by the rule. It suggests deliberate or intentional misconduct as opposed to an omission or a failure to act.

[54]             In other words, it is clear that having regard to the language of r 801(1)(s)(i), and reading it in the context of the Rules as a whole, it is designed to proscribe positive acts which are fraudulent, corrupt or detrimental to the interests of racing and which are not otherwise specifically addressed in the Rules.

[55]             The charge, as particularised, does not identify an act by either Mr Harris or Ms Rae, although it does allege omissions. There is, therefore, no scope or jurisdiction to bring a charge in respect of the alleged facts pursuant to r 801(1)(s)(i). The proposed charge is, therefore, ultra vires the Rules.

[56]             However, this finding does not end the matter. Under the Rules I accept that the Committee is able to amend the charge, including by substituting one alleged breach of the Rules for another.17 The parties have already alluded to the fact that the allegations could have been brought under r 1402(1) and there is no obvious barrier to an amendment of the charge by substituting an alleged breach of that rule, as opposed to a breach of r 801(1)(s)(i).

[57]             The conclusion I have just reached links to the submission that the proceeding cannot be saved by amending the charge to alleged breach of r 1402. This is said to be because the Board has neither particularised the charge to specify the reasonable steps Mr Harris or Ms Rae failed to take, nor led evidence about, first, what good

17     New Zealand Thoroughbred Racing Inc Rules of Racing 2021, r 915(4) and (5).

practice or scientific knowledge required and, second, what was reasonable for someone in Mr Harris’ position to do.

[58]             However, I consider these submissions go beyond the scope of judicial review and require me to undertake an assessment of the evidence, not all of which I have before me as the witnesses were cross-examined. There may well be some merit to Ms Grieve’s submissions that the Board has failed to adduce evidence on matters which are central to the charge, no matter which rule it is brought under. However, that is a matter for the Committee (and, if necessary, the Tribunal) to assess. It is not the function of this Court, on review, to determine the evidence is insufficient to support a charge.

[59]             I agree the charge should be particularised. While Mr Dickey says that is not required under the Rules, the seriousness of the penalties which can be imposed under r 801(2), including disqualification from racing for life, clearly engages the right to know, with precision, the case against an individual. I do not consider that it can be inferred from the fact the horse was euthanised that all reasonable steps were not taken to meet the horse’s welfare needs. Animals can require euthanasia even when all reasonable steps were taken to address their health issues.

[60]             However, the charge has now been particularised. Whether or not those particulars can be established and can assist in proving the charge, is for the Committee to determine. The submissions Ms Grieve made to this Court can readily be made in that forum.

[61]             The same observations apply to the complaint about the Committee’s amendment of the charge to provide particulars. It clearly had jurisdiction to do so under the Rules. I do not accept that there is prejudice in particularising the charge at that juncture when the particulars:

(a)arose out of the evidence;18 and

18     Which is not to say they are proved on the evidence, as that is for the Committee to determine.

(b)Mr Harris and Ms Rae have been given the opportunity to adduce further evidence on those issues if they choose to do so.

[62]             This is not a case where Mr Harris can show he would have defended the charge in some other way had he been provided these particulars from the outset so that he is now compromised or prejudiced in his ability to respond to these particulars. On the contrary, he has been, and continues to be, able to contest that there is evidence to show a reasonable person holding his responsibilities would have avoided the alleged omissions or that the omissions led to the horse being euthanised, which is the outcome that gave rise to the charge. As long as the particulars are given at a stage of the proceedings where Mr Harris still has an opportunity to address them, and where their late provision has not otherwise compromised his ability to defend the charge, then his rights under s 27(1) of NZBORA have not been breached.

[63]             In conclusion, the charge does not allege conduct contrary to r 801(1)(s)(i) because the rule proscribes only positive acts not omissions and the charge focuses solely on omissions. Accordingly, the charge is ultra vires r 801(1)(s)(i).

[64]             There is no breach of s 27(1) of NZBORA either by the Ruling which further particularised the charge, nor would there be by an amendment of the charge to allege a breach of r 1402, given Mr Harris will have an opportunity to adduce further evidence in either situation.

Was the Tribunal lawfully constituted?

[65]             The second ground of review advanced by Ms Grieve is that the Tribunal, comprising Mr McKechnie and Mr Harper, was unlawfully constituted and consequently the appeal decision should be set aside and the applicant’s appeal reheard before a properly constituted Tribunal. The basis of this complaint is that the Tribunal was not  independent  of the Committee whose decision was appealed, contrary to    s 27(1) of NZBORA and contrary to s 41(1) of the Act, which requires the Rules to comply with the provisions of any other Act and the general law of New Zealand.

Submissions for the applicant

[66]             The specific allegation which Ms Grieve raises here is that the Tribunal’s chairman, Mr McKechnie, was being asked to overrule a decision of his colleague, Mr Noel McCutcheon, in circumstances where Mr McKechnie and Mr McCutcheon have sat as Judges alongside each other and may well continue to do so. In addition, both Mr McKechnie and Mr Harper may, in future, sit on a committee whose decision is reviewed by a tribunal on which the Hon Warwick Gendall KC or Mr McCutcheon would sit. Ms Grieve submits that the reasonable informed observer would consider that these dynamics might well unconsciously influence the Tribunal members to conform to the decision of their colleagues, rather than to deliver opinions solely on the merits of the case.

[67]             In support of this submission, Ms Grieve places  reliance on the decision  in  R (Chief Constable of the Lancashire Constabulary) v Crown Court at Preston, which considered challenges which had been made to the independence of particular constitutions of the Crown Court when hearing appeals against a refusal to grant certain alcohol licences.19

[68]             The Court held that the practice of having appeals heard by a single judge and four justices who were members of licensing committees, two of whom were drawn from the same licensing committee from which the members who made the challenged decision were drawn,20 was contrary to art 6(1) of the European Convention on Human Rights, which protected the right to “an independent and impartial tribunal” in the determination of “civil rights and obligations”.21

[69]             The second criticism Ms Grieve has of the structure is that it allows for the judicial hierarchy to be “inverted” in a future case. Person A may hear an appeal from person B’s decision on one case but, in another, person B may hear an appeal from

19 R (Chief Constable of the Lancashire Constabulary) v Crown Court at Preston [2001] EWHC Admin 928, [2002] 1 WLR 1332.

20 At [1].

21 Convention for the Protection of Human Rights and Fundamental Freedoms 213  UNTS  221(opened for signature 4 November 1950, entered into force 3 September 1953) [European Convention on Human Rights].

person A’s decision. This, too, corrodes the Tribunal’s claim to independence from the adjudicative committees it scrutinises.

[70]             Ms Grieve goes on to say there is nothing in the surrounding circumstances which cures these problems. First, no member appointed to the Board’s panel of judges enjoys security of tenure. A reasonable observer might think that the Board would be inclined to select judges for the Tribunal who did not rule too often against the Board.

[71]             In addition, there risks being an “inverted seniority” where, as here, two barristers are asked to overrule the decision of a former High Court Judge. Ms Grieve rejects the suggestion that a similar situation occurs on the divisional Court of Appeal (where two High Court judges and a permanent Court of Appeal judge may hear appeals from the High  Court  judges’  colleagues).  She  points  out  that  at  least one member of the divisional Court of Appeal is a judge more senior than the judge whose decision is appealed and who is not inhibited by the possibility they will have decisions in other cases overruled by the lower court judge. In addition, she points out that senior courts judges have security of tenure, unlike members of the Board’s panels.

[72]             Finally, Ms Grieve notes that the practical constraints for the Board to maintain two completely independent panels from which the committees and tribunals are drawn is not a relevant consideration. Issues of costs cannot suspend the operation of s 27(1) of NZBORA, nor is there evidence that this would be completely impracticable as it was done between March and July 2023.

Submissions for the respondent

[73]             Mr Dickey, for the Board, denies the Tribunal was not properly constituted and, in responding to that submission, refers to the affidavit of Mr Michael Clement, the Chief Executive of the Board, who sets out relevant background matters including the appointment process for adjudicative committees and appeals tribunals.

[74] Mr Dickey outlines the statutory framework governing how the Board is to carry out its adjudicative functions. Relevantly, under s 44(1)(e) it is required to

appoint adjudicative committees to hear and adjudicate on matters in accordance with the Rules and to impose penalties and award costs in accordance with the Rules. Under s 44(1)(f) the Board is empowered to appoint appeals tribunals to hear and adjudicate on appeals brought against decisions of adjudicative committees.

[75]             Mr Clement’s evidence explains how the Board manages these appointments in practice. He says that adjudicative committee and appeals tribunal members are drawn from two panels of adjudicators. The adjudicative committee panel consists of a combination of lay persons with experience in the racing industry and legally qualified persons, while the appeals tribunal panel consists of legally qualified adjudicators. Members of the adjudicative committee panel are appointed to preside over charges whether they originate from a race-day incident or are unrelated to a race day. From time to time some members of the adjudicative committee panel are appointed to an appeal hearing alongside an appeals tribunal panel member or another member of the adjudicative committee where it would assist to have a member with the appropriate level of racing knowledge. Occasionally, a member of the appeals tribunal panel would be assigned to a non-race day hearing of an adjudicative committee. Decisions on appointments would be made on the basis of the seriousness, complexity, knowledge, availability and locality. That approach continues at present, albeit under a more formal policy which includes express consideration of whether there is a disqualifying conflict of interest.

[76]             Mr Clement provided statistics that show, on average over the past decade, adjudicators have been required  to  hear  and  determine  560  race-day  hearings,  72 non-race-day hearings and 14 appeals per year. He also says that the difficulty in recruiting and retaining suitably qualified persons with both a legal and industry experience means that an appointment model whereby adjudicators can sit on both adjudicative committees and appeals tribunals from time to time is necessary and critical to the success of the adjudication model.

[77]             In the present case, the Committee was chaired by the Hon Warwick Gendall KC, a retired High Court Judge, and Mr Noel McCutcheon, a former chief stipendiary steward of New Zealand Thoroughbred Racing Inc, was the other member. The Tribunal was chaired by Mr Murray McKechnie, a senior barrister who is one of the

Board’s  most  experienced  adjudicators,  and   the  other  Tribunal   member  was Mr Alan Harper, another senior lawyer.

[78]             Mr Dickey argues the applicant’s view that adjudicative committees and appeals tribunals must be drawn from separate pools of adjudicators is not stated anywhere in the Act. Similarly, the Act’s predecessor, the Racing Act 2003, did not stipulate, expressly or impliedly, that the panels of persons from which adjudicative committees and appeals tribunals could be drawn had to be comprised of entirely different adjudicators. He says Parliament could have made that an express requirement in either Act, but it did not. The appointment model was also not the subject of any recommendations for change following a thorough review of the racing industry in 2018,22 preceding the enactment of the Racing Industry Act.

[79]             Mr Dickey says that analogous appointment models can be seen in both   New Zealand’s divisional Court of Appeal and in the courts structure in the  Northern Territory of Australia. In the divisional Court of Appeal, the panel includes two High Court judges who are regularly asked to consider appeals against decisions made by other High Court judges. The Supreme Court of Northern Territory, which comprises eight judges only, will have appeals from that Court heard by three Supreme Court judges sitting as a Court of Appeal, but not including the judge whose decision or order is being appealed. Mr Dickey says this is directly analogous to the appointment model operated by the Board.

[80]             In terms of the allegation that the model gives rise to issues of apparent bias in this case, Mr Dickey argues that the accepted test for such an allegation is not met.23 This is because:

(a)The Tribunal was comprised of two senior lawyers with significant experience in racing adjudication, and there has been no credible

22 John Messara Review of the New Zealand Racing Industry (31 July 2018); and Malcolm Burgess Special Review of the Structure and Efficacy of the Racing Integrity Unit (RIU) and Allied Integrity Bodies (June 2019).

23  Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].

evidence advanced to suggest they would not bring an impartial mind to the resolution of the appeal.

(b)The fact that these adjudicators are being asked to consider a decision of a retired High Court Judge is irrelevant. If that were correct, then no retired judge could sit on committees as otherwise there would always be a risk of deference by appeals tribunals based on seniority in the profession.

(c)Adjudicators are guided by the Board’s code of conduct and the expectations outlined in the notice of appointment to the panels.

(d)All decisions are published with full reasons required.

(e)The appointment of two adjudicators mitigates any risk that one might approach the matter impacted by the risk of bias.

(f)There are appeal procedures in relation to adjudicative committee decisions and there is oversight of appeals tribunal decisions through judicial review.

Discussion

[81]             The question of whether an appeals tribunal was lawfully constituted was raised for the first time in the racing industry’s history by the parties to the case in Wigg v Racing Integrity Board.24 However, Peters J found it unnecessary to determine this issue given she was prepared to allow the application on another ground.

[82]             I, too, have considered whether I should refrain from considering this issue given:

(a)I have essentially upheld the Tribunal’s decision by finding there was no impediment to the Committee issuing the Ruling; and

24     Wigg v Racing Integrity Board [2023] NZHC 497.

(b)the Committee has conceded the other issue addressed in the appeal to the Tribunal, which is whether the Board itself is entitled to call further evidence.

[83]             However, it was clear to me that at least some observations should be made on the appointment process. The starting point is, as Mr Dickey pointed out, the test for apparent bias which was confirmed by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, being whether a fair-minded lay observer would reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case.25 However, in assessing bias, a context-specific approach must be taken. As was said in Man O’War Station Ltd v Auckland City Council (No 1), “[t]his is a corner of the law in which the context, and the particular circumstances, are of supreme importance”.26

[84]             Here, the panels are required to be appointed by the Board by statute. The suggestion that decisions would be inclined to favour the Board for this reason alone cannot be sustained. Parliament envisaged that a fair hearing process could be sustained notwithstanding that connection.

[85]             The next issue is whether the potential for exchange between the two panels gives rise to a risk of apparent bias. While the applicant suggests the facts in the present case are analogous to those in the Chief Constable of Lancashire case, I do not agree. The particular concern in that case was that the appeal court was partly made up of justices on the same licensing committee as the justices being appealed against for the very purpose of ensuring the Court on appeal was informed as to local policies and other prevailing relevant local circumstances.27 In addition, members of the licensing committee were elected annually by ballot of all the licensing justices for the petty sessional area in question. Furthermore, the licensing justices who heard the first instance hearing were, under the relevant statutory provision, respondents to any

25     Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 23, at [3].

26     Man O’War Station Ltd v Auckland City Council (No 1) [2002] UKPC 28, [2002] 3 NZLR 577 at [11].

27     R (Chief Constable of the Lancashire Constabulary) v Crown Court at Preston, above n 19, at [27].

appeal against a refusal to grant a licence and could appear and claim costs on the appeal.28

[86]             In the Chief Constable of Lancashire case, an unsuccessful applicant for a licence had challenged the lawfulness of the constitution of the Crown Court. His complaint had been upheld, with the Judge noting that it was “the common experience among circuit judges hearing such appeals that the two justices from the local bench, perhaps out of an unconscious sense of loyalty to their colleagues, take upon themselves a responsibility for defending and justifying the original decision” and, anecdotally, it was said that “appellants and their advisors … [approach] licensing appeals fearing that they are or may be ‘two down’ before they start”.29 The remedy in that case, which was upheld on review in the Chief Constable of Lancashire decision, was simply to determine that the appeal should be heard by a judge sitting with four licensing justices and removing the requirement that two of them should be appointed from the local committee whose decision was under appeal.

[87]             It can be seen, therefore, that the constitution of the Court discussed in the Chief Constable of Lancashire decision involved a combination of circumstances which, in totality, told against the independence of the Court. These included appointment to the Court from a homogenous local bench whose very purpose when sitting on appeal was to ensure that local policies informing the decision were taken account of on appeal. The Court could also be asked to hear submissions made on behalf of their immediate colleagues who made the decision while knowing that their tenure in the following year depended on a vote of their colleagues.

[88]             I do not see such an egregious combination of circumstances at play here. In my view, the possibility that members of a national adjudicative committee panel might from time to time be appointed to a panel to an appeals tribunal, does not, without more, mean the constitution of the appeals tribunal breaches s 27(1) of NZBORA. Indeed, the outcome which was confirmed in the Chief Constable of Lancashire case, which was that such appeals could be heard by a judge sitting with

28 At [26].

29 At [33].

four licensing justices, but removing the requirement that they be from the local licensing committee, effectively permits an analogous situation to the present.

[89]             As long as there are no specific circumstances which would give the appointed appeals tribunal members allegiance to the adjudicative committee being appealed from, and there are no other circumstances which would give rise to a situation of apparent bias, I do not consider the possibility of cross-appointments between the adjudicative committee panel and the appeals tribunal panel, in and of itself, gives rise to apparent bias.

[90]             I also consider the “inverted hierarchy” issue does not give rise to circumstances where a fair-minded lay observer would reasonably apprehend that the Tribunal in this case might not bring an impartial mind to the resolution of the case before it. The mere possibility that person A may sit in judgement of person B’s decision in one case, and, in another, person B may sit in judgement of person A’s decision is insufficient to meet this threshold. As Mr Dickey points out, High Court judges may sit on appeals of their peers in the divisional Court of Appeal and will know that it is possible that those peers will, in due course, sit in judgement on them, whether through those peers being appointed to a divisional Court of Appeal or to the permanent Court of Appeal.

[91]This ground of review fails.

Did the Committee’s Ruling breach natural justice?

Submissions for the applicant

[92]             Finally, counsel for Mr Harris argue that the Ruling which particularised the charge, breached s 27(1) of NZBORA  and  was  therefore  ultra  vires  the  Rules. Ms Grieve reiterated that while particulars were sought prior to the hearing, none were provided. The only particulars provided in opening submissions were that Mr Harris and Ms Rae failed to seek veterinary advice at some point before 30 September 2021 and failed to seek further assistance when Riverfalls deteriorated after Dr Bonner’s visit.

[93]             Ms Grieve was then critical of the particulars that were provided by the Committee, saying particulars (a) and (b) failed to enlighten Mr Harris and Ms Rae to the steps which each of them personally failed to take but ought to have taken.30 Particulars (c)–(g) were not causative of the deterioration and, therefore, cannot contribute to liability. She also notes that particular (e) (failing to provide sufficient worming medication) and (f) (failure to provide adequate nutrition) were not even allegations made by the Board and there is no explanation for the Committee’s decision to include these. She says particular (c) describes an accepted fact, which is that Mr Harris did not visit the horse at Ms Rae’s property, but says that was never advanced by the Board as a relevant omission.

Submissions for the respondent

[94]             In responding to this ground, Mr Dickey says, first, the decision to amend the charge was made in direct response to the applicant’s submission that he had been prejudiced. The Committee considered that in making the amendment, it was taking appropriate steps to alleviate, as opposed to create, prejudice to the applicant. The Committee’s decision allowed the applicant to adduce further evidence if he wished to, and a further hearing was set down for this purpose.

[95]Furthermore, the amendment was permitted by the Rules. Rules 915(4) and

(5)  state:

(4)In any case where an information has been filed alleging that a person or horse has committed a breach of these Rules the Adjudicative Committee may, at any time before it gives its decision in respect of the information, amend the information in such respect or respects as it thinks fit.

(5)Without limiting the generality of the powers confirmed by sub-Rules

(3) and (4) of this Rule an information may be amended by substituting one alleged breach of these Rules for another.

[96]             Mr Dickey submits that this is a wide-ranging power and, here, the particularisation did not fundamentally alter the allegation or result in a substantially different charge. It also did not change the elements of the offence which had to be proved, and the applicant does not face any unfair prejudice as a consequence.

30     The particulars are set out at [24] of this judgment.

Mr Dickey also notes that the applicant does not point to any different way that he would have run his defence had the information been particularised before the hearing. As such, the Ruling is not procedurally unfair or in breach of natural justice and so it is not a breach of s 27(1) of the NZBORA.

Discussion

[97]In my view, this ground of review is not made out.

[98]             I start by observing that an assessment of the merits of the particulars which have been identified as an aid to proving the charge is beyond the scope of an application for judicial review. It may well be that some of the allegations set out in the particulars are not supported by evidence or cannot be shown to have contributed to the horse’s deterioration. That is not a decision for this Court to make on review. The only live issue is whether, by issuing the Ruling amending the charge to particularise it, Mr Harris’ ability to respond to the case was prejudiced and his rights under s 27(1) of NZBORA breached. The possibility that it will lengthen the proceedings because he may wish to adduce further evidence is not, in and of itself, prejudicial. That evidence would have had to have been called in any event if the charge had been particularised that way from the outset. The only prejudice would be if his ability to defend the proceedings has been compromised by the late amendment.

[99]             In my view, it is significant that the Rules provide for the amendment of the charge at any point up until the issuing of a decision.31 Here, none of the matters raised in the Ruling are new in the sense of not being addressed in some way in the evidence, although their alleged relevance to proving the charge has not previously been identified.

[100]         However, I do not see that this prejudices Mr Harris’ fair trial rights. He can either make the submissions to the Committee that he has made to this Court in respect of the relevance of the particulars or in respect of the lack of evidence to support them. If any of the particulars do require further evidence to be adduced by him to address them, he has been given the opportunity to do so.

31     New Zealand Thoroughbred Racing Inc Rules of Racing, r 915(4).

[101]         He does not identify any prejudice to his defence by the late particularisation of the charge. For example, he does not suggest he has committed to running a defence which is now undermined or compromised by the further particularisation of the charge.

[102]         For all these reasons, I accept the Board’s submissions that the decision to amend the information is not procedurally unfair or a breach of natural justice and is not a breach of s 27(1) of NZBORA.

Result

[103]         The decision to charge the applicant under r 801(1)(s)(i) 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.

Costs

[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.

Solicitors:

Hatherly Loughnan, Christchurch Meredith Connell, Auckland

Copy to:

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