WIGG v THE RACING INTEGRITY BOARD [2022] NZHC 1224

WIGG v THE RACING INTEGRITY BOARD [2022] NZHC 1224 [30 May 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-769[2022] NZHC 1224UNDER the Racing Industry Act 2020IN THE MATTER of a review of a decision of the RacingIntegrity Board dated 10 May 2022BETWEEN SHERYL LOUISE WIGGApplicantAND THE RACING INTEGRITY BOARDRespondentHearing: 26 May 2022Appearances: P J Dale QC for ApplicantD Dow for RespondentJudgment: 30 May 2022Reissued: 30 May 2022JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 30 May 2022 at 12:45 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: KooTelle Lawyers (E Telle), AucklandMeredith Connell (Office of the Crown Solicitor), AucklandCounsel: P J Dale QC, Auckland[1] The applicant challenges decisions of an Adjudicative Committee dated17 February 2022 and an Appeals Tribunal dated 10 May 2022. She does so by wayof judicial review. The Adjudicative Committee had been set up by the RacingIntegrity Board to hear charges against the applicant of administering a substance tothree horses on race day. She pleaded guilty and was disqualified from holding orobtaining 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. TheAppeals Tribunal dismissed her appeal.[2] By this interlocutory application, the applicant seeks a stay of execution of boththe Adjudicative Committee and Appeals Tribunal decisions pending a substantivehearing 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 theNew 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 includethe appointment of adjudicative committees to hear and adjudicate on any matters(whether arising on a particular day of racing or otherwise) in accordance with racingrules and to impose penalties and award costs in accordance with those rules. It alsoappoints appeals tribunals to hear and adjudicate on appeals (including penaltiesimposed or costs awarded).[4] The applicant faced three charges laid by the RIB. They alleged that on 16 July2021 at Kumeu, the applicant administered a substance by way of oral syringe to threehorses, which were entered in races at the Auckland Trotting Club meeting atAlexandra Park that evening, in breach of the New Zealand Harness Racing Rule1004C(1)(b). The substance administered was found to be a paste containing amixture of curcumin, which is present in turmeric, and piperine, an alkaloid found inblack pepper. Curcumin and piperine are not prohibited substances, but curcumin hasbeen reported, although not verified by peer reviewed science, to have anti-inflammatory properties. The Adjudicative Committee thought it may well be the casethat the applicant did not believe the mixture was performance enhancing, but that wasto focus on the wrong test. The applicant was in breach of the race day rule. If shehad 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 wassentenced to one year and seven months' disqualification, commencing 17 February2022 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 pursuantto Part XII of the New Zealand Rules of Harness Racing. The appeal was heard on6 May 2022 and declined. The Tribunal provided reasons for its decision on 10 May2022.Legal challenge[7] The decisions of the Adjudicative Committee and the Appeals Tribunal arechallenged on the basis that they were manifestly unreasonable, grosslydisproportionate and beyond the limits within which a reasonable tribunal couldexercise its discretion because the penalty was out of all proportion to the seriousnessof the offending.[8] In Le Roux v New Zealand Rugby Football Union,1 a South African rugbyplayer challenged by way of judicial review his suspension from all rugby for19 months for biting the ear of an opposing player during a match. Eichelbaum CJacknowledged that judicial review was available. He found that a decision of adomestic tribunal could be seen as unreasonable in an administrative law sense if itwas inconsistent, grossly disproportionate, altogether excessive or so irrational that itwent beyond the limits within which a reasonable tribunal could exercise its discretion.However, the Judge found that taking into account all relevant factors, includingmitigating 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 alsochallenge the reliance on a penalty guide, the origins of which are unclear, and whichrigidly 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 atrainer was charged with presenting a horse with elevated levels of a prohibitedsubstance – cobalt. The horse had won a race at Trentham on 8 June 2019 and Awapunion 15 June 2019. The horse was disqualified, and the trainer was fined and ordered topay costs, but not disqualified from holding or obtaining a trainer's licence. Thepenalty guide specifies 18 months disqualification for a first administration offenceand 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 theAppeals 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 theAppeals 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. Theapplicant will argue that as a matter of statutory interpretation, s 44(1)(e) and (f) of theAct requires that the composition of an appeals tribunal is different from thecomposition of an adjudicative committee. There should be two separate panels.Counsel for the applicant raised this issue on the appeal. The Appeals Tribunal notesthe RIB as submitting that the reason for having persons who sit on both adjudicativecommittees and appeals tribunals is one of "pragmatism". The Tribunal quotes theRIB submissions:Having two entirely separate and distinct pools of persons might be regardedas best practise. However, it is simply not realistic for the expeditiousfunctioning of the body such as the RIB. Nor is it necessarily required.[12] The applicant also challenges the decision of the Appeals Authority on thebasis 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 guidelineswere not formulated as part of a judicial process, but by the RIB acting as aprosecutorial authority.2 RIB v McKenzie, RIB9172, 20 May 2022.[13] Finally, the decision of the Appeals Tribunal is challenged on the basis that itdid not form its own view of the merits of the appeal, but rather deferred to the decisionof 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 ofexecution. She says that if the disqualification stands, she will not be able to remainwithin the industry and she will have to sell her share of her property and dispose ofthe horses that she trains.[15] Furthermore, the applicant is a talented driver. She has been chosen torepresent New Zealand in the World Amateur Driver Championships, which are to beheld in Italy in September 2022. She had hoped that if she had received a modestperiod 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. Theorganisers of the World Championships are aware of the charges and have informedher that if a stay is granted in this proceeding by 1 June 2022, she will be able tocompete. The applicant says that this a lifetime opportunity which she would verymuch like to take up.Test for stay of execution[16] Section 15 of the Judicial Review Procedure Act provides that at any timebefore the final determination of an application for review the Court may make aninterim order such as staying any proceedings in connection with any matter to whichthe application relates if "it is necessary to do so to preserve the position of theapplicant".[17] In considering the issue of interim relief, the starting point is the statutorythreshold of the necessity to preserve the position of the applicant. There is then awide discretion which does not seek to define factors relevant to the discretion, butwhich requires the Court to consider all the circumstances.3 These circumstances3 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 publicinterest and the private and public repercussions of granting relief.4Discussion[18] As to the position of the applicant before the decisions of the AdjudicativeCommittee and the Appeals Tribunal, the applicant was working as a licensed trainerwith a number of horses at work. An extended period of disqualification will havesignificant financial consequences for her and may well force out of the industry. Astay of execution would, however, enable her to continue working as a trainer until herjudicial review application is heard and determined.[19] Her position prior to disqualification also included an opportunity to representNew Zealand at the World Amateur Driver's Championship. A stay would enable herto accept the invitation to compete in the world championships. The loss of thatopportunity does not preserve her position.[20] As to the strength or weakness of her claim, the RIB argues that the applicant'scase is not strong. It submits that the jurisdictional arguments in support of her casewere considered and rejected by the Appeals Tribunal. Furthermore, it submits thatthere is no statutory basis for the arguments advanced by the applicant. It relies onreading a requirement into a statutory position which could have been, but was not,stated explicitly. As a matter of statutory interpretation, that indicates that Parliamentdid 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 thatall decisions delivered by appeals tribunals and by appeals committees of the formerRacing Integrity Unit over the course of several decades would be rendered nugatory.While not determinative, the fact the applicant's arguments would have this significantconsequence is a matter which may weigh against preferring the applicant'sinterpretation 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 wereadopted by the Appeals Tribunal), I cannot say that the applicant's arguments arewithout merit. Section 44 of the Act gives no guidance as to how adjudicativecommittees or appeals tribunals are to be made up – that is to say from where memberswill be drawn. As a matter of general principle, however, appellate bodies should beindependent of decisionmakers at first instance.[23] Furthermore, the use of penalty guidelines is a blunt instrument. For a firstoffence of administration, there is only one starting point – 18 months' disqualification– regardless of the substance administered. There is no recognition in the guidelinesthat different starting points may be appropriate according to the seriousness of theoffence before considering personal aggravating or mitigating factors. TheAdjudicative Committee accepted the starting point in the penalty guidelines of18 months' disqualification without explanation other than "Anything less than aperiod of disqualification for these three offences would be manifestly inadequate".No recognition was given to the fact that the mixture was not performance enhancingin 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 forjudicial review not being filed in good faith. The applicant has maintained a consistentobjection to jurisdiction as well as challenging both the penalty guidelines and theimposition 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 aone day hearing on Monday, 15 August 2022.[25] If a stay of execution is granted now, the applicant will already have servedthree months disqualification and it will be less than three months to a substantivehearing 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 fora limited period prior to the substantive hearing. The Adjudicative Committee alsosaw 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 thevalidity and composition of appeals tribunals may affect other cases. The applicationcertainly does involve issues of novelty.[29] Finally, I am of the view that the overall balance of convenience favours a stayof execution. The Adjudicative Committee recognised the appellant's "financial,personal and health issues" and felt "sympathy for her plight", but said in fixingsanctions it was required to apply a balanced dispassionate judgment to uphold andmaintain the high standards expected of trainers and integrity of the sport of racingand 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 theapplicant's financial, personal and health issues are now seen as favouring the stayuntil 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 theAdjudicative Committee, dated 17 February 2022, and the decision of the AppealsTribunal, 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 readyfor hearing on that date:(a) The applicant is to file and serve any further affidavits and othermaterial by Monday, 4 July 2022.(b) The respondent is to file and serve any affidavits and other material inreply 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