Appeal – Costs Decision dated 4 June 2024 – Nigel McGrath
ID: RIB42842
Respondent(s):
Racing Integrity Board
Applicant:
Nigel Raymond McGrath
Appeal Committee Member(s):
Mr M McKechnie (Chair) and Mr A Harper
Persons Present:
Mr P Hall KC - Counsel for Mr McGrath, Mr D Dow - Counsel for Racing Integrity Board, Mr R McKenzie - Registrar, Mr N Grimstone - Chief Investigator (RIB), Mr N McGrath, Mrs A McGrath, Mr R and Mrs G Gardner, Mr A McKerrow - Racetrack Chaplain (Salvation Army)
Information Number:
A11684, A11685, A11686
Decision Type:
Appeal
Charge:
Charge 1: Attempts to administer Prohibited Substance; Charge 2: Refuses to make a statement; Charge 3: Obstructing a Racecourse Investigator
Rule(s):
1004(1) - Prohibited substance, 1001(1)(i) - Other - Serious Racing Offence, 1001(1)(j) - Other - Serious Racing Offence
Animal Name:
STEEL THE SHOW
Code:
Harness
Race Number:
R8
Hearing Date:
17/05/2024
Hearing Location:
Christchurch
Outcome: Appeal Dismissed
Penalty: Unlicensed Person Nigel McGrath's disqualification remains in place along with an order for payment of costs totalling $9,500
1. INTRODUCTION
1.1 Mr Nigel McGrath made application under Rule 1205 of the New Zealand Rules of Harness Racing for the cancellation of an order for disqualification of his Trainer’s License which was made by a Judicial Committee on the 3rd of July 2020.
1.2 By a Written Decision dated the 22nd of May 2024, the Tribunal dismissed the application by Mr McGrath.
1.3 In its Decision of the 22nd of May 2024, the Tribunal invited the parties to make submissions in relation to the issue of costs. Submissions have now been received from both Mr Hall KC, Counsel for Mr McGrath, and Mr Dow, Counsel for the Racing Integrity Board.
2. THE COSTS APPLICATION BY THE RIB
2.1 Mr Dow submits that it is the usual practice of Adjudicative Committees and Appeals Tribunals to award a proportion of the total costs incurred of around 60%.
2.2 It is said by Mr Dow, that the timing of the application is relevant in as much that it was brought at a time when Mr McGrath had served less than half of the period of disqualification and that this weakened the application. Further, it is said that the costs incurred, were substantially increased by the fact that the Applicant took issue with the length of the period of disqualification and much of the material filed for Mr McGrath addressed that issue. As to the relevance of that, the Tribunal ruled in its Decision of the 22nd of May, that it was required to accept the unchallenged Decision of the Adjudicative Committee. Mr Dow submits that the application, to quote his words effectively turned the application into a dual hearing involving both an application under Rule 1205 and an appeal against penalty.
2.3 The total costs incurred by the RIB were approximately $13,000. In addition, disbursements were incurred totalling $901.62, being accommodation on the 16th of May 2024 in Christchurch and $621.99 for flights from Auckland to Christchurch and return.
2.4 The Respondent, on the basis of a 60% calculation, seeks the sum of $8,701.62.
3. THE SUBMISSIONS FOR MR McGRATH
3.1 Mr Hall KC, in his submissions on costs, submits that the application was not without merit and that there was a persuasive foundation for the application.
3.2 Mr Hall points to L v The Integrity Unit 27 May 2020 and the second L Decision of 15 June 2021 and the modest costs award that was made on the second occasion.
3.3 Mr Hall submits that any order for costs will fall not only upon Mr McGrath, but upon his wife and family. It is said that he has already exhausted family savings in bringing the application in the first place.
3.4 Mr Hall points out that Rule 1205 does not provide that an application for cancellation must be brought after 50% of the disqualification has been served and that an application can be brought after one year of the disqualification having been served.
4. DISCUSSION
4.1 As to the merits of the application, it is unnecessary to repeat what was said in the Decision of the 22nd of May 2024, other than to note the following, which were significant considerations:
a) Less than half the term of the disqualification had been served.
b) Much of the hearing and the submissions for Mr McGrath challenged the length of the disqualification imposed by the Adjudicative Committee.
c) The Decision of the Adjudicative Committee had not been appealed.
4.2 In addition to the costs sought by the RIB, considerable expense was incurred in assembling the Appeals Tribunal and in hiring the hearing room at the Commodore Hotel in Christchurch. The room hire was $775.66 excluding GST.
4.3 The application by Mr McGrath was dismissed. As the Decision of the 22nd of May makes clear, this was by a considerable margin.
4.4 In the ordinary course of events, costs follow the event in judicial or semi-judicial proceedings, unless there be some compelling reason otherwise. No such reason is apparent here. That said, the Tribunal is conscious of Mr McGrath’s financial circumstances and the impact of the disqualification upon his career in Harness Racing.
4.5 There are no ‘hard and fast rules’ as to what percentage of costs should be awarded. It is entirely discretionary. As Mr Dow points out in his submissions, the figure of around 60% has been adopted on a significant number of occasions.
4.6 The Tribunal considers that having regard to what has been said above and conscious of the circumstances of Mr McGrath, the following costs awards are appropriate:
a) To the Compliance RIB, the sum of $5,500.
b) To the RIB Adjudication, with reference to assembling the Tribunal and conducting the hearing and issuing the Written Decision – $3,500.
c) The contribution towards the costs of the venue hire – $500.
The figures above come to the sum of $9,500. There are orders for the payment of costs in terms of para a) b) and c) above.
Decision Date: 04/06/2024
Publish Date: 05/06/2024
I doubt McGrath will apply again given the rule doesn't actually offer any scope for leniency. Poorly written rule in my opinion if its intent was to allow those charged to argue rehabilitation had occurred.
