John Patrick Green, Brian Hughes, Barry Rattray, Wayne McLaughlin and the Estate of Mrs W McLaughlin v Racing Integrity Unit Ltd

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date09 April 2014
Neutral Citation[2014] NZCA 133
Docket NumberCA389/2013
Date09 April 2014

[2014] NZCA 133



O'Regan P, Harrison and Wild JJ


John Patrick Green, Brian Hughes, Barry Rattray, Wayne McLaughlin and the Estate of Mrs W McLaughlin
Racing Integrity Unit Limited
First Respondent


Harness Racing New Zealand Incorporated
Second Respondent

M J Fisher and L Hui for Appellants

C A McVeigh QC and C J Lange for Respondents

Appeal against High Court's dismissal of an application for judicial review based on challenges alleging breach of a legitimate expectation and fettered discretion — racehorse had tested positive for arsenic above the permitted threshold — NZ laboratories were not equipped to test for arsenic so this had not been done previously — the sample in issue had been tested by Hong Kong laboratory — plaintiffs alleged that for over 20 years the defendants had consulted on the use of therapeutic substances in race horses — claimed that they had a legitimate expectation to be consulted on (1) the appointment and approval of laboratories for the purposes of the racing rules; or (2) any proposal or decision to test urine samples under a testing regime that had not previously been undertaken or employed — whether the plaintiffs had established that there was a settled practice or policy, to act in a certain way had been adopted which amounted to a commitment — if so, whether a remedy should be granted — whether in deciding to prosecute, the Racing Integrity Unit had done so on the basis of a fettered discretion.

Held: The connections had to establish (1) a promise or commitment, in this case by the adoption of a settled practice or policy, to act in a certain way; (2) their legitimate or reasonable reliance on the promise or commitment; and (3) the appropriate remedy if any that should be granted.

A promise could be implied from past practice or policy. But where the expectation was in the form of a practice or policy, as alleged here, its existence and content had to be established to the level of a commitment or undertaking. The existence and content of such a practice or policy had to be both unambiguous, and settled in the sense that it was regular and well established.

The presence of reasonable reliance helped to distinguish a legitimate expectation from one which was a mere hope that a course of action would be pursued. It was difficult to see how a party could have a legitimate expectation without relying on the undertaking (whether by a promise or otherwise), given that its foundation was that a public authority should be bound by its undertakings when it had promised to follow a certain procedure, because it was in the interest of good administration that it should act fairly and should implement its promise ( Attorney-General of Hong Kong v Ng Yuen Shiu).

The evidence showed that there had been a constant pattern of dialogue on subjects such as changes of opinion about the effect of a drug; technological advances which may increase forensic capability and require changes to withholding times; and also an informal commitment that a “lead in period” would proceed any change in the prohibited substance rules or in testing or methods in order to allow veterinarians reasonable time to change their methods. However the connections had to establish much more than this.

The International Federation of Horse Racing Authorities agreement that giving forewarnings for new tests was regarded as best international practice in horse racing did not assist as the harness racing code was not a signatory to the agreement. Even if the harness racing code had signed on, the practice relied on by the connections contained within the agreement was expressly stated to be one which horseracing authorities might implement at their discretion.

The documentary evidence did not disclose an established policy or practice of the type alleged. Whether viewed separately or together, the documents fell well short of satisfying the high threshold required to establish an unambiguous and settled commitment by HRNZ to act in a certain way. Further, evidence of an open and constructive dialogue between parties did not suffice in this context. Considerably more was required. The connections’ claim for the existence of a legitimate expectation fell at the first hurdle.

Even if the connections had established the necessary commitment, there was no evidence of an inducement or reliance. The owners did not know of HRNZ's decision to accredit the Hong Kong laboratory so its decision could not have been of operative effect. Announcement or advice of this decision to use the Hong Kong laboratory could not have led to a change in how Caco-Iron-Copper was administered. On the evidence the vet who administered the substance, as he did not know believe that its administration was a breach of the rules, he would still have administered it. He did not know that it contained arsenic, so his knowledge that HRNZ had commissioned a laboratory which could detect arsenic would have made no difference to his practice.

The claim would also have failed at the third stage. The connections sought declarations of invalidity of both of HRNZ's laboratory testing decisions. Even if those decisions were quashed or set aside, the results of the tests would remain unaffected in the absence of a challenge to the validity of the testing procedure itself. The connections did not suggest that the laboratory's internal procedures or processes were defective. A Court would not have exercised its discretion to grant relief in these circumstance

A judicial decision having the effect of allowing Delightful Christian to retain first placing would ultimately award a substantive benefit as a remedy for breach of a legitimate expectation. Relief in the form of a substantive outcome was rarely, if ever, granted ( Comptroller of Customs v Terminals (NZ) Ltd). An undertaking could not be implemented where it would interfere with a public authority's statutory duty, or where there was a satisfactory reason not to implement it. To uphold an expectation of a course of conduct regardless of these well established limits “would be to usurp the function of the person or body carrying out the relevant public function” (Terminals (NZ) Ltd).

In terms of the alternative claim of fettered discretion, it was settled that a public body or official with discretionary statutory powers must not adopt a policy which disqualified it from exercising a genuine discretion in a particular case if the circumstances warranted special treatment. It was a moot question, however, whether and to what extent that principle applied in a case involving the exercise of prosecutorial discretion. It was not necessary to explore that question further because, assuming a prosecutorial discretion existed here, on the facts it was exercised by the RIU. The RIU employees responsible for the decision to lay an information took into account a range of relevant factors and there can be no argument that it improperly fettered its prosecutorial discretion.

The connections’ claim was an elaborately constructed argument designed to disguise a simple complaint – that their breach of a HRNZ rule was detected by unexpected means. While the connections’ concern was that their breach was unintended, the rule was one of absolute liability: it imposed an unequivocal obligation on them to ensure Delightful Christian raced without a prohibited substance in her system. The result may seem unfair, but judicial review was not an appropriate vehicle for avoiding liability for the consequences of a failure to comply with that long established rule.

Appeal dismissed.

  • A The appeal is dismissed.

  • B The appellants are ordered to pay the respondents one set of costs on a standard appeal on a band B basis in this Court and usual disbursements. We certify for two counsel.


(Given by Harrison J)


Delightful Christian is what is called a pacing filly. She participates successfully in harness horse racing. Following her victory in a prestigious race, samples of her urine were tested by a laboratory in Hong Kong at the request of the Racing Integrity Unit (the RIU). A positive result was returned for arsenic above the permitted threshold level. Harness Racing New Zealand (HRNZ) has decided to lay a charge with the Judicial Control Authority alleging that the horse raced with a prohibited substance in her system. The charge is yet to be heard but, if it is proved, disqualification is a mandatory penalty.


Delightful Christian's trainers, John Green and Brian Hughes, and her owners, the Rattray Family Trust, (collectively “the connections”), applied to the High Court to judicially review the separate decisions by HRNZ and the RIU to approve the Hong Kong laboratory for testing and to lay the charge. Among their grounds of challenge were that (1) the HRNZ rule under which the charge was laid was invalid; (2) they had a legitimate expectation that HRNZ and the RIU would consult them before approving the Hong Kong laboratory to conduct the tests; (3) in deciding to lay the information, the RIU failed to take into account relevant considerations; and (4) the RIU acted unreasonably and improperly fettered its discretion to prosecute.


After a defended hearing, Simon France J delivered a comprehensive judgment dismissing the application. 1 He was not satisfied that any of the four grounds of challenge were made out. The connections now appeal his decision but limited to the legitimate expectation and, to a lesser extent, fettered discretion grounds. As a result, it is unnecessary for us to revisit Simon France J's careful and correct analysis of the validity of the HRNZ rules which occupied a significant part of his judgment.


We record that the connections' appeal falls for determination according to settled...

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