Wigg v Racing Integrity Board
[2023] NZHC 2219
•16 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-769
[2023] NZHC 2219
UNDER the Racing Industry Act 2020 IN THE MATTER
of a review of a decision of the Racing Integrity Board dated 10 May 2022
BETWEEN
SHERYL LOUISE WIGG
Applicant
AND
RACING INTEGRITY BOARD
Respondent
Hearing: On the papers Counsel:
P J Dale KC for Applicant D B Dow for Respondent
Judgment:
16 August 2023
COSTS JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 16 August 2023 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: KooTelle Lawyers, Auckland
Meredith Connell, Auckland
Counsel: P J Dale KC, Auckland
WIGG v RACING INTEGRITY BOARD [2023] NZHC 2219 [16 August 2023]
Introduction
[1]I issued a judgment in this matter on 14 March 2023.1
[2] The parties have been unable to agree on costs. The applicant now seeks an award of costs on a 2B basis and any necessary disbursements:
(a)on her application for stay, which Woolford J granted on 30 May 2022; and
(b)in the substantive proceeding which I determined.
The costs sought under these two heads total $23,541.50.
[4]The applicant also seeks costs of $1,500 on her application for costs.
Application for stay
[5] The applicant commenced this proceeding on 13 May 2022. By her proceeding, the applicant sought review of a penalty that had been imposed on her by the respondent, the Racing Integrity Board (“RIB”). The penalty included a substantial period of disqualification.
[6] The applicant applied for a stay of the penalty pending determination of her proceeding. The RIB opposed the application for stay, which Woolford J granted on 30 May 2022.
Substantive proceeding
[7] As counsel for the applicant, Mr Dale KC, submits, the applicant was also the successful party on the substantive proceeding. The RIB does not dispute this.
[8] Given that, and on usual principles, the applicant is thus entitled to costs and disbursements on both her application and the substantive proceeding.
1 Wigg v Racing Integrity Board [2023] NZHC 497.
Submission for the RIB
[9] Counsel for the RIB, Mr Dow, submits that I ought to reduce the costs the applicant claims by approximately 50 per cent, to a round sum of $10,000.
[10] Mr Dow submits that I may do so pursuant to any or all of High Court Rules 2016, rr 14.7(d), (e), and (g), which provide:
14.7 Refusal of, or reduction in, costs
Despite rules 14.2 to 14.5, the court may ... reduce the costs otherwise payable under those rules if—
...
(d)although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or
(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or
...
(g) some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.
Rule 14.7(d)
[11]The basis on which the RIB seeks a reduction under r 14.7(d) is as follows.
[12] The applicant advanced two alternative contentions in her statement of claim. First, the applicant contended there was procedural impropriety in the proceedings before the RIB. The applicant’s second contention was that the penalty imposed on her, and which an RIB Appeals Tribunal had upheld, was disproportionately severe or, in sentencing parlance, manifestly excessive.
[13] As it turned out, I was not required to determine the applicant’s first ground, because she succeeded on the second.2
2 That said, I understand the RIB is now looking to alter the manner in which it appoints members to the committees and tribunals, so that any risk of apparent bias is avoided.
Rule 14.7(e)
[14] The RIB also contends that I should reduce the costs payable to the applicant because the proceeding concerned a matter of public interest in the sense of r 14.7(e), and also that the RIB acted reasonably in its conduct of the case and in the interests of certainty for those involved in the racing industry.
Rule 14.7(g)
[15] As to r 14.7(g), it is said that any award of costs will be funded by “industry participants” and that this constitutes “some other reason” which would justify a reduction of costs.
[16] The RIB is funded by the TAB. The TAB derives its revenue from betting and gaming. I assume that those who bet and game are the “industry participants” to whom Mr Dow refers.
Discussion
[17] Rule 14.7(d) does not apply in this case. There is a difference between it being unnecessary for the Court to determine an issue or cause of action (as in this case) and a litigant “failing” on that issue.
[18] I have reservations as to whether r 14.7(e) even applies in principle. That rule is usually relied on by a public spirited or interested plaintiff, not a defendant. Whatever the precise position may be, I am not persuaded that r 14.7(e) has any application in this case. The issue in the proceeding said to have been of public interest is the composition of the RIB’s Appeals Tribunal. I do not consider that a matter of “public” interest in the required sense and certainly not one warranting a reduction in the costs payable to an individual plaintiff. Nor, with respect, am I persuaded that the RIB acted reasonably in its conduct of the proceeding. The RIB adopted an adversarial position throughout. As far as I could ascertain, it opposed the applicant at every turn. In those circumstances, it must meet the cost consequences of doing so.
[19] Nor do I accept that the reason advanced for reducing costs under r 14.7(g) has any merit in this case. The costs to be awarded fall to the RIB. How the RIB’s funder derives its revenue does not bring the case within r 14.7(g).
[20] Thus, the applicant is entitled to her costs on a 2B basis (which I understand to be $23,541.50), and disbursements.
Costs on costs
[21] The applicant also seeks an award of costs of $1,500 on her application for costs. There is no dispute that such an award may be made in principle.
[22] Mr Dale wrote to the RIB’s solicitors on 4 May 2023. In that letter he sought costs on the application for stay and in the substantive proceeding totalling
$28,321.50, plus disbursements. Mr Dale also sought costs in respect of an application for a stay before the Appeals Tribunal, a matter I need not consider.
[23] Mr Dale’s letter was an “open” one, to which no open response was made. When I enquired of counsel whether the RIB’s solicitors had responded, I was informed there was no open response but that the RIB’s solicitors had responded on 7 July 2023 “without prejudice save as to costs”. Quite why such a letter would be sent post-judgment is not immediately apparent to me but, in any event, Mr Dale has advised that he has no objection to me considering it.3
[24] In any event, the 7 July 2023 letter adds nothing to the issues I am required to decide. It also refers to another letter from Mr Dale of 26 June 2023 which I do not have. I shall put the 7 July letter to put it to one side accordingly.
[25] As it turns out, however, there were some errors in Mr Dale’s 4 May calculation of costs, i.e. in the $28,321.50. Mr Dow identified these in his memorandum to the Court of 19 July 2023. The effect of these errors, which Mr Dale readily accepted in his memorandum in response of 21 July 2023, is to reduce the costs sought to the
$23,541.50 referred to above.
3 For what it is worth, counsel may wish to refresh their memories on the purpose of a letter marked “without prejudice save as to costs”, and particularly rr 14.10 and 14.11.
[26] In the circumstances to which I have referred, I consider the applicant is entitled to the $1,500 contribution she has claimed. She has been asking for her costs and disbursements since early May 2023 and, in the absence of payment or some very good reason as to why she should not be paid, she was put to the expense of filing memoranda on the subject. This should not have been necessary.
Result
[27] I make an award of costs in favour of the applicant against the respondent on a 2B basis on the application for stay and the substantive proceeding, plus all usual disbursements.
[28] I also make an award of $1,500 in favour of the applicant on her application for costs.
[29] I reserve leave to apply to the Registrar in the unlikely event of any further dispute.
Peters J
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