Wigg v Racing Integrity Board

[2023] NZHC 497

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-769

[2023] NZHC 497

UNDER

the Racing Industry Act 2020

IN THE MATTER

of a review of a decision of the Racing Integrity Broad dated 10 May 2022

BETWEEN

SHERYL LOUISE WIGG

Applicant

AND

RACING INTEGRITY BOARD

Respondent

Hearing:

15 August 2022

Appearances:

P J Dale KC for Applicant

B H Dickey and D B Dow for Respondent

Judgment:

14 March 2023

REASONS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 14 March 2023 at 2 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 497 [14 March 2023]

[1]        I issued a results judgment in this matter on 28 February 2023.1 These are my reasons.

Introduction

[2]        The applicant, Ms Sheryl Wigg, seeks judicial review of the exercise of a statutory power of the respondent, the Racing Integrity Board (“RIB”). In particular, the applicant seeks review of a decision by the RIB’s Appeals Tribunal (“Tribunal”) to uphold a decision disqualifying the applicant from holding or obtaining a licence under the New Zealand  Rules of Harness Racing (“rules of harness racing”)  for    19 months. The applicant was also ordered to pay costs of $10,000, being $6,000 to the RIB in its capacity as informant, and $4,000 in its capacity as adjudicator.

[3]        The applicant brought her application for review on two grounds. The first, which was pressed with the greatest force, is that of procedural impropriety. The second is that the penalty imposed on the applicant and upheld by the Tribunal was disproportionately severe. As it turns out, I am satisfied as to the second ground and need not determine the first.

[4]        I record also that Mr Dale KC, for the applicant, did not pursue two further pleaded grounds of review, being a failure to grant a rehearing and an alleged breach of natural justice.

Background

[5]        The RIB was established by the Racing Industry Act 2020 (“the Act”), as the successor body to the Racing Integrity Unit (“RIU”) and the Judicial Control Authority (“JCA”).2

[6]        The RIB is responsible for administering three codes of racing: thoroughbred racing, harness racing, and greyhound racing. Its functions include ensuring compliance with each code’s rules of racing, and adjudication in respect of alleged

1      Wigg v Racing Integrity Board [2023] NZHC 353.

2      Racing Industry Act 2020, s 42.

breaches of those rules. These functions were previously carried out by the RIU and the JCA respectively.

[7]        Because it is relevant to what follows, insofar as concerns adjudication, the RIB is required to appoint Adjudicative Committees to “hear and adjudicate on any matters … in accordance with racing rules and to impose penalties…in accordance with those rules”. The RIB is also required “to appoint appeals tribunals to hear and adjudicate on appeals (including penalties imposed or costs awarded)”.3

[8]        On 16 July 2021, the applicant, a licensed trainer of harness racing horses and a licensed (and successful) trials and amateur driver, was at her training premises in Kumeu preparing three horses for racing later that day. Also present, although unbeknown to the applicant, were RIB racing investigators (“investigators”) undertaking surveillance of the applicant’s stables. The investigators observed the applicant mix up a paste, and administer it to one horse with an oral syringe.

[9]        The applicant’s actions constituted a breach of what is referred to as the “one clear day rule”, being rule 1004C(1)(b) of the rules of harness racing, which provides:

One Clear Day Rule

1004C(1) No person shall administer to a horse entered in a race in the period one clear day before racing (except under the direction or supervision of a club veterinarian, Racing Investigator, or Stipendiary Steward) any substance by:

(a)gastric tube or nasal gastric tube;

(b)injection, hypodermic needle, or oral syringe;

(c)aerosol, ventilator, nebulizer, atomiser, or face mask;

(d)topical treatment to the skin or tissues that contains or claims to contain medication, or has or claims to have a therapeutic effect, including analgesia or anti- inflammatory actions; or

(e)by any similar method.

(2)A breach of sub-rule (1) is committed regardless of the nature of the substance administered.

3      Sections 44(1)(e) and (f).

(3)A person shall not provide to a horse on the day of racing before it has left the racecourse after racing, or one clear day prior to racing, any feed that had added to it a substance containing bicarbonate or other alkalising agent, cobalt, or a prohibited substance in addition to that included in a commercial feed or produce by a feed merchant.

(4)When an administration under sub-rule (2) occurs or a substance is added to a horses feed, both the person who administers or adds the substance and the trainer of the horse commit a breach of the rules.

[10]      The investigators entered the property. The applicant told them that she had administered “B Boost”, a supplement commonly given to horses. This was untrue.

[11]      The investigators observed that the paste was on the ground near two other horses, and around their mouths. Questioned about this, the applicant denied administering the paste to the other two horses, saying that she had added the paste to a bucket containing molasses. This too was untrue.

[12]The horses were “scratched” from their races.

[13]      The applicant was charged with, and admitted, three counts of breaching   rule 1004C. This was the applicant’s first breach of this rule. The applicant appeared before an Adjudicative Committee of the RIB (“Committee”) on 17 February 2022. The Committee comprised the Honourable Warwick Gendall KC (Chair), a former Judge of this Court, and Mr Gavin Jones, a horse breeder and previously a senior police officer.

[14]      The Committee received and heard evidence from the applicant and two veterinarians, and submissions from counsel for both parties, that is the RIB as informant and the applicant as respondent.

[15]      The investigators had seized the syringe(s) and the three horses had been “swabbed”. Analysis of the paste showed that it contained curcumin and piperine, found in turmeric and black pepper respectively. The effect of the veterinarian evidence is that turmeric is believed to have anti-inflammatory properties but this has not been confirmed by scientific analysis. It is not considered “performance enhancing”.

[16]      The applicant conceded that she knew she was breaching the one clear day rule by administering a substance in this way. However, she said that she did not think the breach was serious as the paste was not, in her opinion (or apparently in anyone else’s), performance enhancing. The applicant’s evidence in this proceeding is that it is her practice to feed the mixture to horses to prevent or treat ulcers, but she had overlooked doing this on the day in question and resolved on administering the paste by syringe.

Penalty

[17]      The maximum penalty for a breach of rule 1004C is a fine of up to $20,000, and/or suspension or disqualification from holding a licence under the rules of harness racing for up to five years.

[18]      The Committee took an adverse view of the applicant’s actions and particularly that she had lied to the investigators. It rejected her explanation that she had lied out of panic, and attributed this to her knowing that her actions were in breach of the one clear day rule. To be fair to the applicant, however, she did not dispute that she knew that she was in breach of the rule.

[19]The Committee:

(a)observed that anything less than a period of disqualification would be manifestly inadequate.

(b)adopted a starting point of 18-months’ disqualification. This period derived from what is referred to the “JCA Penalty Guide 2018” (“Guide”), to which I return below.

(c)observed that the other two breaches meant that a concurrent penalty would be appropriate but the fact of the other two breaches warranted an uplift of five months (27.5 per cent). This brought the period of disqualification to 23 months.

(d)reduced the period of disqualification by four months (16.5 per cent) to take into account the applicant’s “unblemished history”; good character

and reputation; personal, financial and health issues with which she was contending; and her relatively prompt admissions.

[20]      The end penalty was therefore a disqualification of 19 months, and the order for costs to which I have referred. The applicant’s evidence is that a disqualification of this length is likely to bring her career in the industry to an end, and cause considerable financial hardship.

Appeal

[21]      The applicant appealed to the Tribunal, which comprised Mr Murray McKechnie (Chair), a senior and experienced barrister, and Mr Noel McCutcheon, a former jockey and Chief Stipendiary Steward of Thoroughbred Racing.

[22]The Tribunal upheld the Committee’s decision in all respects.

[23]      The Tribunal rejected a submission by Mr Dale for the applicant that it lacked jurisdiction as it was improperly constituted. This submission reflects that, on occasion, the Appeals Tribunal is populated by persons eligible for appointment to Adjudicative Committees. So, for instance, the Hon Warwick Gendall is eligible for appointment to Adjudicative Committees and Appeals Tribunals and has sat on both. The basic complaint is a lack of independence between the two bodies.

[24]      The Tribunal then went on to discuss Mr Dale’s submission that the penalty imposed on the applicant was grossly excessive. The Tribunal stated that it considered the starting point appropriate, “even generous” to the applicant; that there was no error with the uplift for aggravating factors given the number of charges and the deliberate breach of the rules; and that the discount for mitigating factors was sufficient.

[25]      The Tribunal declined an application by the applicant for a stay of the penalty. This Court, however, subsequently granted that stay.4

4      Wigg v Racing Integrity Board [2022] NZHC 1224.

First ground of review — constitution of Appeals Tribunal

[26]      As I have said, Mr Dale’s first ground is that the Adjudicative Committee and Appeals Tribunal are required to be drawn from distinct and separate panels of adjudicators. Mr Dale submits this derives from the relevant provisions of the Act; the indisputable right to natural justice; and the risk of an appearance of bias due to the potential “crossover” in personnel.

[27]      Counsel for the RIB made extensive submissions in opposition, essentially acknowledging that the present position is not ideal, but also contending that it is not unlawful. The gist of the submissions was that this imperfect but lawful system is largely due to practical constraints.

[28]      As I said above, it is unnecessary for me to determine the parties’ submissions on this point given the view I have reached on the penalty imposed. In those circumstances, the better course is to leave this important issue to a case in which it will be determinative.

Second ground of review — penalty unreasonable

[29]      Mr Dale contends that the penalty imposed by the Committee and upheld by the Tribunal was unreasonable, in that it is vastly more severe than that imposed in comparable cases.5

[30]In particular, Mr Dale submits that:

(a)the “starting point” of 23 months’ disqualification was too high, given that there is no allegation the applicant administered a performance enhancing substance; and

(b)the discount for mitigating factors was insufficient.

5      RIB v Boyle, RIB4375, 30 August 2021; RIB v McKenzie, RIB9172, 20 May 2022; RIU v Edge & Burrows, 17 December 2019; RIU v Luxton, 20 January 2020; RIU v Wilson, 20 August 2020; RIU v Richards, 4 March 2021; RIB v Smolenski, RIB5963, 6 December 2021; and RIB v Dickson, RIB8623, 16 April 2022.

[31]      The RIB rejects these submissions. It submits the penalty was warranted. It also submits, correctly, that an application for judicial review is to be distinguished from a general appeal, in that it is confined to examining the process by which the relevant body made the decision;6 that the Court will often defer to a professional disciplinary body where specialist expertise is required;7 and that the decisions in this case were made by experienced participants in the racing industry.

Discussion

[32]      This application does not turn on the proper approach to judicial review; any special dictates of the racing industry; nor the expertise of the panel. The important and determinative point, on which both the applicant and RIB agree, is the need for consistency in determining what is a fair penalty for a breach of the rules, so that similar cases are treated in a similar manner.

[33]      For reasons I come to, that consistency is not apparent in this case. However, before I go further it is necessary to say more about the evidence, and the rules themselves.

[34]      I have affidavits from Mr Christopher Lange and Mr Michael Clement, amongst others.

[35]      Mr Lange has been the legal adviser to Harness Racing New Zealand (“HRNZ”) and its predecessors since 1992, and has been involved in advising on the rules and amendments thereto. He has extensive knowledge of those rules and their history. Mr Lange swore his affidavits at the request of HRNZ. Mr Lange’s affidavits are also notable because they are confined to matters of fact and do not contain submission.

6      Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].

7      New Zealand Trotting Conference v Ryan [1990] 1 NZLR 143 (CA) at 153; Wislang v Medical Council of New Zealand [2002] NZAR 573 (CA) at [40]; Cropp v A Judicial Committee [2007] NZAR 465 (HC) at [68]; Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [139].

[36]      Mr Clement is the Chief Executive Officer of the RIB, a role to which he was appointed on 1 July 2021, so very recently. Plainly, this limits the matters of which Mr Clement has personal knowledge and thus the evidence he can give.

Mr Lange’s evidence

[37]      In his evidence, Mr Lange explains the one clear day rule, other rules relevant to my discussion of comparable cases, and the Guide to which I referred in [19](b) above.

Rules

[38]      The rules of harness racing prohibit the presentation of a horse for racing with either a prohibited substance or an elevated level of carbon dioxide in its bloodstream. Mr Lange says this rule is referred to as the “presentation” or “prohibited substance” rule, and that the rule regarding carbon dioxide is sometimes referred to as the “TCO2” rule. For many years, the maximum penalty for a breach of this rule, however it is referred to, has been a fine of up to $20,000, and suspension or disqualification for up to five years.8

[39]      In addition, there is a separate “administration” rule. This prohibits the administration of a prohibited substance to any horse at, or to be taken to, a racecourse for the purpose of engaging in a race. The maximum penalty for a breach of this rule is a fine of up to $30,000 and suspension or disqualification for life. Accordingly, on its face it is more serious than the presentation rule.

[40]      I turn now to the one clear day rule. As of May 2015, this prohibited the use of certain types of device for administration on the day of racing itself, regardless of the substance being administered. The maximum penalty for a breach of this rule was significantly less than a breach of the others to which I have referred, being a fine of up to $10,000, and/or suspension or disqualification for up to 12 months.

8      For reasons not apparent to me, the equivalent maximum period of suspension in the rules for thoroughbred racing appears to be 12 months.

[41]      This changed in October 2018, when the current version of the one clear day rule, or something close to it, was included in the rules and the maximum penalty increased to equal that of a breach of the presentation rule, that is a fine of up to

$20,000, and/or a period of disqualification or suspension of up to five years.

Guide

[42]      The most recent iterations of the Guide, say 2011, 2015, and 2018, are the product of the JCA. The evidence is that the Guide was formulated, and has been revised from time to time, in consultation with the industry.

[43]      As in earlier versions, the 2018 iteration of the Guide identified what are said to be appropriate penalties for first, second, and third breaches of the TCO2 rule, the administration rule, and presentation offences. By way of example, for a first, second, or third breach of the harness racing TCO2 rule, the Guide suggests periods of disqualification of one year, two years, and five years respectively, and a fine of

$10,000 on each occasion. I assume these are starting points.

[44]      It is worth  noting, however,  that 2018 iteration of the Guide  was issued on  1 August 2018 and thus predated the increase in penalties for a breach of the one clear day rule. Given that, I have reservations about whether the Guide is intended to apply to a breach of the one clear day rule.

[45]      There are other matters to mention about the Guide. Under the Act, responsibility for determining and imposing penalty falls to the Adjudicative Committee in the first instance, and the Tribunal on appeal. It is for those bodies, not the industry, to determine and impose the penalty in any given case. Whether either should be referring to any guide that has been formulated in consultation with stakeholders is a matter that would require careful legal consideration.

[46]      Secondly, there is a factual dispute in this case as to whether participants in the industry have access to the Guide. Plainly that is essential if it is to be used in the context of adjudication. Mr Clement’s affidavit evidence is that the Guide is publicly available. However, no one on the applicant’s side was able to locate a copy online.

Comparable cases

[47]      Against that background, I turn now to the cases to which Mr Dale referred me.

[48]      Boyle is a decision of the RIB delivered in August 2021 in respect of a breach in June 2018. A trainer and a stablehand presented a (thoroughbred) horse for racing with an elevated level of carbon dioxide. The horse raced but was subsequently disqualified, requiring the stakes to be adjusted. The maximum penalty available was a fine of up to $25,000, and/or suspension for up to 12 months or disqualification for up to five years. A starting point of a fine of $10,400 was adopted, with a one third reduction for mitigating factors. The mitigating factors present in the Boyle case were admission of the breach, the respondents’ unblemished record over many years, and their full co-operation. Ultimately, the penalty imposed was a fine of $6,850, of which each respondent was ordered to pay 50 per cent.

[49]      The two breaches in McKenzie took place in June 2019. The RIB Appeals Tribunal issued its decision in May 2022. The trainer presented the (thoroughbred) horse for racing on two occasions about a week apart, with the prohibited substance, cobalt, present on both occasions. The presence of the substance was not detected until after the horse had raced and won both races. The horse was subsequently disqualified from both events, causing a loss of revenue to its owner and to those who had placed bets on the horse. It is clear from the decision that the trainer was wholly uncooperative and obstructive throughout. The penalty imposed was a fine of $6,000, with no order for suspension or disqualification.

[50]      RIU v Edge & Burrows concerned a breach of the rules of harness racing in September 2019, with the decision delivered in December 2019. Mr Edge presented a horse for racing with an elevated level of carbon dioxide. The JCA, which heard the matter, said that it obtained “little assistance from the suggested starting point for a first offence” in the Guide. That starting point for a first breach was disqualification for one year and a fine of up to $10,000. The JCA expressed the view that “a penalty of that magnitude” must be reserved for the very worst case of “milkshaking”, this

being a process intended to delay the onset of fatigue. The end penalty was a fine to Mr Edge of $4,000.

[51]      Mr Burrows, the second respondent, had breached the one clear day rule, administering a substance with the intention of preventing the horse from “tying up”. Mr Burrows was fined $800.

[52]      The decision in RIU v Luxton was delivered in January 2020 in respect of a breach in November 2019. Mr Luxton presented a (thoroughbred) horse for racing in breach of the one clear day rule. Indeed, Mr Luxton was observed at the racecourse with a syringe in the horse’s mouth. An inspector told Mr Luxton to stop, but he did not. Mr Luxton then told the inspector that the syringe contained only water. This was untrue. The syringe contained “B Boost”. The horse was scratched from its race. The JCA imposed a penalty of a fine of $1,000, saying that as there was no prohibited substance in the syringe, the “offending needs to be kept in perspective”. No period of suspension or disqualification was ordered.

[53]      Two respondents were charged in RIU v Wilson. The breach took place in June 2020 and the decision was issued in August 2020. The respondents presented a horse for harness racing with a prohibited substance (cobalt) in its bloodstream. The respondents were also in breach of the one clear day rule. The respondents had previously been warned for such matters. The breach of the prohibited substance rule was dealt with by a fine of $7,000 and the breach of the one clear day rule by a fine of

$500. No period of suspension or disqualification was ordered.

[54]      The decision in RIU v Richards was delivered in March 2021 in respect of a breach of the thoroughbred racing rules in December 2020. Entirely inadvertently, Mr Richards, an excellent trainer with an unblemished record, presented a horse for racing with a prohibited substance of morphine. Again, no period of disqualification or suspension was imposed. A fine of $1,500 and costs of approximately $1,300 were ordered.

[55]      RIU v Smolenski concerned a breach of the rules of harness racing  in  October 2021. The decision was delivered in December 2021. Mr Smolenski

presented a horse for racing with a prohibited substance, “Bute”, in its bloodstream, this being an anti-inflammatory. This was Mr Smolenski’s third breach, his most recent breach having been in 2018. To compound matters, on this occasion the horse had won its race. Mr Smolenski expressed his preference for a fine as opposed to disqualification or suspension. The outcome was a fine of $4,200.

[56]      Dickson is a decision of the RIB under the rules of harness racing delivered on 16 April 2022 in respect of a breach in February 2022. Mr Dickson, the trainer, presented a horse for racing with an elevated level of carbon dioxide.   This was    Mr Dickson’s second breach. He committed his first breach in May 2018 and, indeed, the level of carbon dioxide detected on that occasion was apparently the highest level returned in 17 years. The fine imposed on Mr Dickson on that first occasion was reduced from $12,000 to $9,200 on appeal, with the appellate body stating that a starting point of a fine of $12,000 would only be appropriate if the breach was “within the most serious ... of its type”. I record that the Adjudicative Committee in respect of Mr Dickson’s second breach did refer to the possibility of disqualification but did not pursue the point as it considered disqualification would be impossible to enforce. This was because Mr Dickson’s partner is also a trainer. Rather, it imposed a fine of

$14,000.

[57]      Counsel for the RIB contended that each of these decisions is distinguishable on its facts. It is correct that none is entirely on all fours with the applicant’s case. However, the difference between the penalty imposed on the applicant and the other respondents is substantial and unexplained. In not one of the other cases was the respondent suspended or disqualified, let alone for 19 months.

[58]      Counsel for the RIB referred me to  the decisions in RIU v McGrath and   RIU v Alford. I do not have copies of these decisions. However, the breaches in those cases must have been vastly more serious, given that I am told the JCA adopted starting points of 10 and nine years disqualification respectively. Those starting points vastly exceed the maximum penalty available for a breach of the presentation and one clear day rules. This suggests that they are not apposite.

[59]      Mr Dale also referred me to cases emanating from Australia. I do not propose to address these. I do not know how those cases translate to the New Zealand industry.

Conclusion

[60]      On the information before me, I am unable to reconcile the penalty imposed on the applicant in this case with the penalties imposed on the other respondents to whom I have referred. That is not to say the differences cannot be explained but that explanation is not presently apparent. This decision is not intended as a criticism. For instance, I do not know if any of the cases to which I have referred were relied on before the Tribunal. Also, it may be that there are other cases which are relevant and which have not been part of the case before me.

[61]      However, in the circumstances on the information before me, the only proper course is to remit this matter back to the RIB for reconsideration.

Result

[62]I remit this matter back to the Racing Integrity Board for reconsideration.

[63]The parties may make submissions on costs in the absence of agreement.

Peters J