McKenna v The Control Appeal Committee of the Irish Greyhound Board (Bord na gCon)
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 09 November 2018 |
| Neutral Citation | [2018] IEHC 618 |
| Court | High Court |
| Docket Number | [RECORD NO. 2017 874 JR] |
| Date | 09 November 2018 |
[2018] IEHC 618
THE HIGH COURT
O'Regan J.
[RECORD NO. 2017 874 JR]
Legitimate expectation – Proportionality – Certiorari – Applicant seeking an order quashing a decision by the respondent – Whether the respondent's decision breached the principles of legitimate expectation and proportionality
Facts: The applicant, Mr McKenna, applied to the High Court seeking an order quashing the decision by the respondent, the Control Appeal Committee of the Irish Greyhound Board, bearing the date 18th August 2017 whereby the respondent dismissed the applicant's appeal against the decision of the Control Committee of the Irish Greyhound Board (being a decision of the 24th February 2017) wherein the Control Committee were satisfied that a prohibited substance, hydrochlorothiazide, was present in such of the applicant's animals as had been tested. A total fine of €1,000 was imposed and certain prize money stood forfeit. Leave was granted to maintain the proceedings by order of the 13th November 2017. As a consequence of the original statement of opposition of the respondent, the applicant submitted an amended statement of ground of the 10th April 2018 and thereafter the amended statement of opposition was filed bearing date 7th May 2018. The applicant suggested that the respondent's decision was based on serious errors of fact and breached the principles of legitimate expectation and proportionality and was objectively unjustified discrimination against him.
Held by O'Regan J that in all the circumstances the plaintiff had failed to discharge the burden necessary to secure an order of certiorari in respect of the impugned decision.
O'Regan J held that the application would be refused.
Application refused.
The applicant is seeking an order quashing the decision by the respondent bearing the date 18th August 2017 whereby the respondent dismissed the applicant's appeal against the decision of the Control Committee of the Irish Greyhound Board (being a decision of the 24th February 2017) wherein the Control Committee were satisfied that a prohibited substance, hydrochlorothiazide, was present in such of the applicant's animals as had been tested. A total fine of €1,000 was imposed and certain prize money stood forfeit.
Leave was granted to maintain the within proceedings by order of the 13th November 2017.
As a consequence of the original statement of opposition of the respondent, the applicant submitted an amended statement of ground of the 10th April 2018 and thereafter the amended statement of opposition was filed bearing date 7th May 2018.
The applicant is seeking the relief of an order of certiorari in respect of the respondent's decision of the 18th August 2017, together with an order that the applicant's appeal be remitted to another division of the respondent for reconsideration. A declaration is sought that the respondent failed to determine the appeal in accordance with law, and/or acted contrary to fair procedure and/or natural justice, and/or unreasonably, and/or irrationally. The applicant suggests that the decision was based on serious errors of fact and breached the principles of legitimate expectation and proportionality and was objectively unjustified discrimination against him.
The taking of the various samples on the 5th, 12th and 19th September 2015, all at Shelbourne Park greyhound stadium, are set out. Three of the applicant's greyhounds were involved.
The applicant complains of the finding relative to the testing maintenance and control of the sample was in the UK laboratory and the ruling that the respondent was happy to rely on the certificate issued from same. A further issue raised is in respect of the applicant's feeding regime. A complaint is made that the finding that the applicant's feeding regime could not be considered normal and ordinary feeding was unreasonable and/or irrational. A similar difficulty arises from the applicant's point of view in respect of the finding that the applicant was engaged in a reckless feeding regime and must accept the consequences of same. It is complained that insufficient reasoning was furnished within the decision and same was irrational. Furthermore, the applicant complains that the appropriate weighing exercise as to the competing evidence of the parties was not undertaken. The applicant in the amended statement of grounds complains that there was a fundamental error of law and of fact, and breach of fair procedures and natural and constitutional justice by only considering the submissions made by the Irish Greyhound Board (hereinafter IGB) in respect of an allegation of a previous caution given to the applicant. The applicant asserts that the respondent accepted and acted on the evidence of the respondent in respect of such alleged caution notwithstanding the applicant's dispute in this regard. It is asserted that the finding that the applicant's feeding regime could not be considered normal and ordinary feeding was an error of fact, and the respondent effectively retrospectively applied its advisory notice of the 6th November 2015. The final complaint is that similar cases, entirely analogous to the matters presented against the applicant, were dismissed by the IGB's Control Committee, in the past.
Regulations came into being in 2007 pursuant to the provisions of the Greyhound Industry Act 1958. Under Regulation 6, S.I. 301/2007 the Control Committee was set up and Regulations 10 and 11 dealt with the Control Appeals Committee set up and make up. Regulation 12 deals with the functions of the Appeal Committee and Regulation 13 deals with its procedure. Regulation 14 deals with the hearing of appeals.
Under regulation 14(5) the appeal is to be grounded upon the prior decision, the notice of appeal, the observations of the CEO of the board, or some person on his behalf, the observation of any person requested by the appeals committee, and information in the conduct of the appeal. Regulation 14(11) provides that unless requested by the Appeals Committee, an appellant is not permitted to elaborate in writing or make further submissions in respect of the grounds of appeal and additional submissions or grounds shall not be considered.
Under Regulation 28(5) where any person is found to have contravened any provision of the regulations, the Control Committee is effectively empowered to impose a fine, direct payment of costs and expenses, exercise the powers of the board under s. 45 and 47 of the 1958 Act, or do any act or thing or impose such disciplinary action contemplated under Articles 29 and 32 of the Racing Regulations. Under Article 12(3) of S.I. 301/2007, the respondent has the same powers as to the penalty to be imposed upon an individual who has breached the regulations has also been afforded to the Control Committee.
Insofar as the concept of Category 2 feeding is concerned, under EU Regulation 1069/2009, Article 9 defines Category 2 feed and Article 11 goes on to provide that Category 2 feed is to be disposed of in the prescribed manner and not used for feeding of terrestrial animals of a given species. Under Article 18, Member States are permitted to authorise such user under conditions.
Subsequently, under the EU (Animal by – products) Regulations 2014, full effect was given to the EU Regulation aforesaid within this jurisdiction including enabling the Minister to afford a licence to a particular party authorising the use of Category 2 feeding.
In Regulation 2 of S.I. 302 of 2007, a prohibited substance is defined as meaning any substance which by its nature could affect the performance of a greyhound and could not be traced to normal and ordinary feeding.
The decision records that a preliminary application was made on behalf of the applicant that the hearing would proceed by way of a de novo hearing. This application was acceded to by the respondent. The parties were requested to discuss the matter to ascertain whether or not the hearing could be shortened and when the parties returned it was indicated that the issue was now a food contamination issue and that there was no evidence to suggest that any of the animals in question received a direct injection. Counsel for the applicant stated that issues had been narrowed substantially and there was no challenge to the taking custody and control of the samples save only where the sample was sent to England for testing and the custody whilst it was there. Evidence was given by the applicant as to his feeding regime and the decision records that he accepted that by feeding his animals Category 2 meat that any contamination or drugs in that meat would get into the dog's system. It states that he fairly accepted that maybe he had been reckless in his feeding regime by feeding such meat and further that he was aware that there was some risk but proceeded anyway. He did not accept that he had been warned following a hearing in July 2015, but he did however accept that he applied for a meat feeder's licence shortly after the hearing which he received in October 2015.
Dr. Jim Healy, veterinary surgeon, gave evidence on behalf of the IGB up to the dispatch of and subsequent receipt of the sample and certificate of result from the UK indicating that he was not in a position to give evidence regarding the carrying out of the testing process in the UK laboratory. He was satisfied that hydrochlorothiazide was a prohibited substance and had an effect on performance. He also indicated that it did not matter whether it got into the dog's system directly or indirectly. Thereafter, counsel on behalf of the applicant argued that there was a flaw in the chain...
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