Wigg v Racing Integrity Board
[2022] NZHC 1224
•30 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-769
[2022] NZHC 1224
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
THE RACING INTEGRITY BOARD
Respondent
Hearing: 26 May 2022 Appearances:
P J Dale QC for Applicant D Dow for Respondent
Judgment:
30 May 2022
Reissued:
30 May 2022
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 30 May 2022 at 12:45 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: KooTelle Lawyers (E Telle), Auckland
Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: P J Dale QC, Auckland
WIGG v THE RACING INTEGRITY BOARD [2022] NZHC 1224 [30 May 2022]
[1] The applicant challenges decisions of an Adjudicative Committee dated 17 February 2022 and an Appeals Tribunal dated 10 May 2022. She does so by way of judicial review. The Adjudicative Committee had been set up by the Racing Integrity Board to hear charges against the applicant of administering a substance to three horses on race day. She pleaded guilty and was disqualified from holding or obtaining a trainer’s licence for 19 months. She was also ordered to pay $10,000 costs. She appealed to an Appeals Tribunal, also set up by the Racing Integrity Board. The Appeals Tribunal dismissed her appeal.
[2] By this interlocutory application, the applicant seeks a stay of execution of both the Adjudicative Committee and Appeals Tribunal decisions pending a substantive hearing of her judicial review. It is opposed by the Racing Integrity Board.
Factual background
[3] The applicant is a licensed harness racing trainer and as such is subject to the New Zealand Rules of Harness Racing. The respondent Racing Integrity Board (RIB) is established by s 42 of the Racing Industry Act 2020 (the Act). Its functions include the appointment of adjudicative committees to hear and adjudicate on any matters (whether arising on a particular day of racing or otherwise) in accordance with racing rules and to impose penalties and award costs in accordance with those rules. It also appoints appeals tribunals to hear and adjudicate on appeals (including penalties imposed or costs awarded).
[4] The applicant faced three charges laid by the RIB. They alleged that on 16 July 2021 at Kumeu, the applicant administered a substance by way of oral syringe to three horses, which were entered in races at the Auckland Trotting Club meeting at Alexandra Park that evening, in breach of the New Zealand Harness Racing Rule 1004C(1)(b). The substance administered was found to be a paste containing a mixture of curcumin, which is present in turmeric, and piperine, an alkaloid found in black pepper. Curcumin and piperine are not prohibited substances, but curcumin has been reported, although not verified by peer reviewed science, to have anti- inflammatory properties. The Adjudicative Committee thought it may well be the case that the applicant did not believe the mixture was performance enhancing, but that was
to focus on the wrong test. The applicant was in breach of the race day rule. If she had administered the substance either the day before race day or the day after race day, she would not have committed an offence.
[5] The applicant pleaded guilty to the charges and as a consequence was sentenced to one year and seven months’ disqualification, commencing 17 February 2022 and ordered to pay costs in the sum of $6,000 to the RIB and costs in the sum of
$4,000 to the Adjudicative Committee.
[6] The applicant then exercised her right to appeal against the sentence pursuant to Part XII of the New Zealand Rules of Harness Racing. The appeal was heard on 6 May 2022 and declined. The Tribunal provided reasons for its decision on 10 May 2022.
Legal challenge
[7] The decisions of the Adjudicative Committee and the Appeals Tribunal are challenged on the basis that they were manifestly unreasonable, grossly disproportionate and beyond the limits within which a reasonable tribunal could exercise its discretion because the penalty was out of all proportion to the seriousness of the offending.
[8] In Le Roux v New Zealand Rugby Football Union,1 a South African rugby player challenged by way of judicial review his suspension from all rugby for 19 months for biting the ear of an opposing player during a match. Eichelbaum CJ acknowledged that judicial review was available. He found that a decision of a domestic tribunal could be seen as unreasonable in an administrative law sense if it was inconsistent, grossly disproportionate, altogether excessive or so irrational that it went beyond the limits within which a reasonable tribunal could exercise its discretion. However, the Judge found that taking into account all relevant factors, including mitigating factors such as Mr Le Roux’s early acceptance of guilt and other penalties, the penalty was within reasonable limits.
1 Le Roux v New Zealand Rugby Football Union [2006] NZAR 434 (HC).
[9] In the substantive application for judicial review, the applicant will also challenge the reliance on a penalty guide, the origins of which are unclear, and which rigidly and unfairly characterise the seriousness of various types of offences.
[10] Counsel refers to a very recent decision of an appeals tribunal,2 in which a trainer was charged with presenting a horse with elevated levels of a prohibited substance – cobalt. The horse had won a race at Trentham on 8 June 2019 and Awapuni on 15 June 2019. The horse was disqualified, and the trainer was fined and ordered to pay costs, but not disqualified from holding or obtaining a trainer’s licence. The penalty guide specifies 18 months disqualification for a first administration offence and a fine of $8,000, but no disqualification, for a first presentation offence.
[11] In addition, the applicant will challenge the set-up and composition of the Appeals Tribunal on the basis of procedural impropriety and breach of natural justice, as well as its failure to properly rehear the appeal. The applicant complains that the Appeals Tribunal set up to hear the applicant’s appeal was composed of two persons, who also sit from time to time as members of the Adjudicative Committee. The applicant will argue that as a matter of statutory interpretation, s 44(1)(e) and (f) of the Act requires that the composition of an appeals tribunal is different from the composition of an adjudicative committee. There should be two separate panels. Counsel for the applicant raised this issue on the appeal. The Appeals Tribunal notes the RIB as submitting that the reason for having persons who sit on both adjudicative committees and appeals tribunals is one of “pragmatism”. The Tribunal quotes the RIB submissions:
Having two entirely separate and distinct pools of persons might be regarded as best practise. However, it is simply not realistic for the expeditious functioning of the body such as the RIB. Nor is it necessarily required.
[12] The applicant also challenges the decision of the Appeals Authority on the basis that it relied on submissions by the RIB relating to facts that were not in evidence. Its reliance on the penalty guidelines is also criticised on the basis that the guidelines were not formulated as part of a judicial process, but by the RIB acting as a prosecutorial authority.
2 RIB v McKenzie, RIB9172, 20 May 2022.
[13] Finally, the decision of the Appeals Tribunal is challenged on the basis that it did not form its own view of the merits of the appeal, but rather deferred to the decision of the Adjudicative Committee, which was chaired by a retired High Court Judge.
Impact of disqualification on appellant
[14] The appellant has sworn an affidavit in support of her application for a stay of execution. She says that if the disqualification stands, she will not be able to remain within the industry and she will have to sell her share of her property and dispose of the horses that she trains.
[15] Furthermore, the applicant is a talented driver. She has been chosen to represent New Zealand in the World Amateur Driver Championships, which are to be held in Italy in September 2022. She had hoped that if she had received a modest period of disqualification and/or a fine and costs, she would still be able to compete. It is for that reason that she did not seek a stay when the charges were first laid. The organisers of the World Championships are aware of the charges and have informed her that if a stay is granted in this proceeding by 1 June 2022, she will be able to compete. The applicant says that this a lifetime opportunity which she would very much like to take up.
Test for stay of execution
[16] Section 15 of the Judicial Review Procedure Act provides that at any time before the final determination of an application for review the Court may make an interim order such as staying any proceedings in connection with any matter to which the application relates if “it is necessary to do so to preserve the position of the applicant”.
[17] In considering the issue of interim relief, the starting point is the statutory threshold of the necessity to preserve the position of the applicant. There is then a wide discretion which does not seek to define factors relevant to the discretion, but which requires the Court to consider all the circumstances.3 These circumstances
3 Andrew Beck and others McGechan on Procedure (loose-leaf ed, Brookers) at [JR15.02(1)].
include the strength or weakness of the claim, the statutory framework, the public interest and the private and public repercussions of granting relief.4
Discussion
[18] As to the position of the applicant before the decisions of the Adjudicative Committee and the Appeals Tribunal, the applicant was working as a licensed trainer with a number of horses at work. An extended period of disqualification will have significant financial consequences for her and may well force out of the industry. A stay of execution would, however, enable her to continue working as a trainer until her judicial review application is heard and determined.
[19] Her position prior to disqualification also included an opportunity to represent New Zealand at the World Amateur Driver’s Championship. A stay would enable her to accept the invitation to compete in the world championships. The loss of that opportunity does not preserve her position.
[20] As to the strength or weakness of her claim, the RIB argues that the applicant’s case is not strong. It submits that the jurisdictional arguments in support of her case were considered and rejected by the Appeals Tribunal. Furthermore, it submits that there is no statutory basis for the arguments advanced by the applicant. It relies on reading a requirement into a statutory position which could have been, but was not, stated explicitly. As a matter of statutory interpretation, that indicates that Parliament did not intend such a requirement to be read into the statute.
[21] The RIB also submits that the effect of the applicant’s arguments would be that all decisions delivered by appeals tribunals and by appeals committees of the former Racing Integrity Unit over the course of several decades would be rendered nugatory. While not determinative, the fact the applicant’s arguments would have this significant consequence is a matter which may weigh against preferring the applicant’s interpretation argument, according to the RIB.
4 Carlton & United Breweries Ltd v Shields [1986] 1 NZLR 423 (CA) at 430.
[22] While the submissions by the RIB on jurisdiction are well made (and were adopted by the Appeals Tribunal), I cannot say that the applicant’s arguments are without merit. Section 44 of the Act gives no guidance as to how adjudicative committees or appeals tribunals are to be made up – that is to say from where members will be drawn. As a matter of general principle, however, appellate bodies should be independent of decisionmakers at first instance.
[23] Furthermore, the use of penalty guidelines is a blunt instrument. For a first offence of administration, there is only one starting point – 18 months’ disqualification
– regardless of the substance administered. There is no recognition in the guidelines that different starting points may be appropriate according to the seriousness of the offence before considering personal aggravating or mitigating factors. The Adjudicative Committee accepted the starting point in the penalty guidelines of 18 months’ disqualification without explanation other than “Anything less than a period of disqualification for these three offences would be manifestly inadequate”. No recognition was given to the fact that the mixture was not performance enhancing in determining whether to adopt the starting point set out in the penalty guidelines.
[24] As to other discretionary factors, there is no question of the application for judicial review not being filed in good faith. The applicant has maintained a consistent objection to jurisdiction as well as challenging both the penalty guidelines and the imposition of a long period of disqualification. The application is not a delaying tactic. The applicant has instructed counsel to proceed expeditiously to a substantive hearing. The Court is able to accommodate her request for an early fixture and has allocated a one day hearing on Monday, 15 August 2022.
[25] If a stay of execution is granted now, the applicant will already have served three months disqualification and it will be less than three months to a substantive hearing of the application.
[26] Furthermore, the RIB will not be injuriously affected by a stay of execution. There is no suggestion that the applicant will reoffend if able to continue training for a limited period prior to the substantive hearing. The Adjudicative Committee also
saw a “crucial need to deter others who might be tempted to behave in similar ways”, but the deterrent effect of the sentences will not be lost if a stay of execution is granted.
[27]There is also no effect on any third parties.
[28] There is some limited public interest as the use of penalty guidelines and the validity and composition of appeals tribunals may affect other cases. The application certainly does involve issues of novelty.
[29] Finally, I am of the view that the overall balance of convenience favours a stay of execution. The Adjudicative Committee recognised the appellant’s “financial, personal and health issues” and felt “sympathy for her plight”, but said in fixing sanctions it was required to apply a balanced dispassionate judgment to uphold and maintain the high standards expected of trainers and integrity of the sport of racing and its industry and to protect participants in the sport, industry and the public. Also, deterrence of others was crucial. The RIB will, however, not be disadvantaged if the applicant’s financial, personal and health issues are now seen as favouring the stay until the novel and important issues she raises are dealt with in the High Court.
[30] There will, therefore, be an order suspending the determinations of the Adjudicative Committee, dated 17 February 2022, and the decision of the Appeals Tribunal, dated 10 May 2022, pending disposal of this proceeding.
[31] The application is set down for a substantive hearing at 10: 00 am on Monday, 15 August 2022. One day is allocated.
[32] The following timetable orders are made to ensure that the application is ready for hearing on that date:
(a)The applicant is to file and serve any further affidavits and other material by Monday, 4 July 2022.
(b)The respondent is to file and serve any affidavits and other material in reply by Monday, 18 July 2022.
(c)The applicant is to file her submissions by Monday, 1 August 2022.
(d)The respondent is to file its submissions by Monday, 8 August 2022.
Woolford J
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