RACING APPEALS TRIBUNAL NEW SOUTH WALES TRIBUNAL: MR D. B. ARMATI 19 MAY 2017 Ex Tempore Decision APPEAL OF MRS JEANETTE FOLEY 1
BREACH OF RULE 83(2)(a) OF GREYHOUND RACING RULES RE: APPLICATION TO WITHDRAW APPEAL ORDERS: 1. Leave given to withdraw appeal without conditions 2. Appeal deposit forfeited Application for leave to withdraw appeal 1. After evidence and submissions on a severity appeal, and prior to the Tribunal issuing a decision in the appeal, an application has been made by the Appellant to withdraw the appeal. The basis of that application is that the Tribunal has indicated to the Appellant, for the first time, that it considers the decision appealed against to have been too lenient. 2. The history, briefly, is that on 11 May, in submissions, the Respondent foreshadowed it would seek a heavier penalty. In doing so, it said that the stewards penalty was inadequate and that it is open to the Tribunal to determine for itself a penalty which is greater than that which the stewards considered appropriate. No facts or reasons were given in that 11 May document to indicate why that would be so. It was suggested, consistent with the type of terminology that is not uncommon, that a Parker direction would be sought. Nothing was put on in response to that; nor did it have to be. 2
3. At the commencement of this hearing, issues were taken about the capacity to deal with such an issue under the terms of a Parker direction. The Tribunal indicated that it was considering penalty for itself; but, on the facts then available to it, it was not so informed as to give such a consideration, that is, an indication before the evidence commenced that a heavier penalty might arise. 4. The matter took its ordinary course. The evidence was produced and the submissions made. The evidence comprised that which was before the stewards. There is no fresh evidence. There is no fresh evidence, therefore, which is relevant to the decision of the Tribunal to indicate a possible different conclusion unfavourable to the Appellant. 5. The case has involved its preparation by both parties and by the Tribunal to date that, since 11 May, the Tribunal will take facts as necessary; but, for the purpose of considering its powers, it is apparent that costs have been incurred. 6. In respect of an appeal, the Tribunal may, under section 17A of the Racing Appeals Tribunal Act, dismiss it, confirm it, or vary it, or, under section 17A(1)(c), "make such other order in relation to the disposal of the appeal as the Tribunal thinks fit." Different terminology is then embraced in the Racing Appeals Tribunal Regulation. There are two relevant provisions. The first is clause 15, which is in the following terms: 15. An appeal duly lodged may not be withdrawn except with the leave of the Tribunal. In granting such leave, the Tribunal may impose such conditions as to the payment of costs or otherwise as it thinks fit. The second is clause 19, subclause (1) of which provides: (1) On determining an appeal, the Tribunal may order that a party to the appeal pay all or a specified part of the costs (2) The Tribunal must not make an order under subclause (1) unless the Tribunal decides: 3
(a) the appeal is vexatious or frivolous, or (b) a party has caused unreasonable delay in the conduct of the appeal, or (c) a party has caused another party unreasonable cost by the manner in which the appeal has been conducted. 7. Firstly, should leave be granted at this stage of the proceedings in the absence of any additional evidence? 8. The Tribunal notes that, up until this point of the proceedings, no indication has been given by the Tribunal to the Appellant that a more substantial order is possible. The Respondent did not identify specific factual circumstances upon which the Appellant could reflect which might fall into the category of matters that could lead to the Tribunal determining a heavier penalty. That is not unusual because such a need has not arisen in the past. Whilst the Appellant has been on notice, that notice has now been subsumed, so far as the principle of whether the severity appeal should be able to be withdrawn, by the fact that the proceedings have reached the stage they have now. 9. The Tribunal is satisfied that there is nothing prejudicial to the Respondent by the fact that this application is made some 2½ hours after commencement of this appeal, without any apparent difference from what might have happened at the commencement of the hearing and what is sought to be the conclusion at the end of the hearing, or that it is in any way disadvantaged, or that the Appellant has been advantaged in respect of this application made at this stage. 10. The Tribunal is satisfied the application has been made at the first available opportunity when it s need was apparent. The fact that the whole of the appeal process has been gone through might be seen to make it an inappropriate time to so advantage an Appellant. But that would not seem, in a civil disciplinary sporting body where the Tribunal is set up to provide aggrieved licensed persons with an opportunity to air that grievance before an independent body, and not being a court of law, that such an approach would not accord with a principle of fairness. 4
11. Accordingly, the issue is: If leave is to be granted to withdraw the appeal, should it be conditional? That requires consideration of an enlivened costs application. The Tribunal is satisfied that a combination of clauses 15 and 19 of the regulation provides a clear delineation between withdrawal prior to determination and the conclusion of an appeal by its determination. 12. Is any difference to be found by consideration of section 17A of the Act? That does not use the terminology, as the Tribunal foreshadowed, of, "on determining an appeal" that 17A(1) (a), (b) and (c) are enlivened. However, it is apparent that the powers to dismiss an appeal, or confirm or vary it, and to make other orders, are consistent with the types of powers that are made on the conclusion of an appeal, and not that might arise if an appeal was not heard at all. 13. The Tribunal considers that the totality of the legislative provisions put in place by Parliament are that there is a distinction between withdrawal before determination and conclusion of a matter on determination.that the provisions of 17A(1) (c) are only enlivened on determination, and those are powers that enable a Tribunal to make an order, having considered the matter, that might not just be a dismissal or a confirmation or variation, but something else. In Vallender, for example, a harness racing case of 2011 in which the Tribunal returned a matter to the regulatory body for further consideration, exercising its section 17A(1)(c) powers, and as a concluded order. 14. In those circumstances, the question then becomes: Should a costs order be made under clause 15? And, if it is to be made, is the withdrawal to be conditioned on it, or otherwise. I need to deal with that determination. 15. The issue is this: Should an order for costs be imposed as a condition of leave to grant withdrawal of the appeal? If such an order is to be made, the issue of quantum can then be looked at. The test is silent. It simply says an order for costs can be made. 16. The Tribunal, for the reasons just expressed, considers that the section 19(2) limitations are statutorily put in place purely to deal with a determination of the appeal under section 19(1). 5
Accordingly, the tests of vexatious, frivolous, unreasonable delay, or the occasioning of unreasonable costs, are not enlivened. 17. That takes the matter back to whether a successful party is entitled, absent disqualifying conduct, to its costs, as Justice Beech-Jones found in McCarthy v Harness Racing and the Racing Appeals Tribunal. 18. The Tribunal considers that at this point the matter of withdrawal could not have been determined unless the Tribunal itself had given some indication to the Appellant that a likely outcome was a disadvantage order so far as the Appellant is concerned. Putting the Appellant on notice has a very strong factor. Nothing has arisen which, in the Tribunal's opinion, would have informed the Appellant that things were not going her way, either before the hearing started or since it started, that would have caused her on advice, naturally to have considered withdrawing the appeal at an earlier stage. 19. Therefore, there has been no disadvantage to the Respondent so far as its preparation costs are concerned. The issue is whether the costs of some nearly three hours occasioned by this hearing should be passed on. That would enliven a first occasion on which that power has been exercised. Other Appellants have not had the benefit of the views of the Tribunal on such a matter in the past under this clause, in these circumstances, such as they would know a likely outcome is that if they seek to withdraw at a stage such this there would be consequences. There is nothing entitling or disentitling; there is nothing prejudicial about the conduct of either party which, in this Tribunal's opinion, should cause an enlivening of the costs order under those tests. 20. Is it that the Respondent, under the McCarthy principle, is otherwise entitled to the success of its proceedings, absent any disentitling conduct? That is never an easy determination. It is not one which the Tribunal finds favourable. In all the facts and circumstances of this matter, the aspect of success or otherwise is apparent, and there has been no disentitling conduct. The costs are limited to a few hours. 6
21. In the exercise of a discretion, which in other jurisdictions would be called a judicial discretion, the Tribunal sees that the facts of this case do not justify a costs order against the Appellant of the limited type that has been identified. 22. Accordingly, the Tribunal gives the Appellant leave to withdraw the appeal without conditions. 23. The appeal deposit is forfeited. 7