Court orders new Racing Board appointment

Wellington High Court has ordered a new ‘independent’ Racing Board (NZRB) chairman be appointed.

In releasing her finding today, Justice Jill Mallon says racing minister Nathan Guy misinterpreted the requirement for an independent chairperson when choosing current chairman Dr Alan Jackson.

She said the only option open to her is to quash the minister’s original appointment and refer it back to Mr Guy for reconsideration.

Today’s decision comes just two months after the New Zealand Greyhound Association (NZGR) took the minister to court over his decision to appoint Dr Jackson to the role last year, when Michael Stiassny’s chairmanship came to an end.

NZGR had three clear claims:

• The minister applied the wrong legal test (or, to put it another way, asked the wrong question) in deciding Dr Jackson was independent because he focused on Dr Jackson’s ability to perform the role independently rather than considering whether his past and current interests meant he was not independent.
• The minister failed to take into account relevant considerations because, in focussing on the wrong question, he failed to obtain adequate information about, and to take into account, Dr Jackson’s interests and associations with the thoroughbred code.
• The minister failed to consult on Dr Jackson’s proposed appointment as required by the Racing Act because he did not consider the greyhound code’s objection to Dr Jackson’s appointment with an open mind.

NZGR lawyer Helen Cull QC argued Dr Jackson was not independent because, as a former representative of the thoroughbred code, he was biased and not fit for the role.

During the last term on the board from 2010, when he replaced a retiring member, Dr Jackson represented the thoroughbred racing code as its member.

He is also a director of the Broadway Racing Breeding Partnership, Broadway Trust and Broadway Operations.

At the time of the appointment, Mr Guy issued a press release saying the new board appointments, including Dr Jackson’s, brought a valuable range of senior business, marketing and industry experience.

He said Dr Jackson was appointed as independent chairperson after consultation with the racing industry.

However, Ms Cull alleged Mr Guy had not properly consulted.

Under the Racing Act 2003, he was required to consult with all affected parties about the chairman’s position and choose someone who is independent and not associated with the codes.

Ms Cull said Dr Jackson was involved in the codes and the fact he last represented the thoroughbred code makes it hard for him to change hats to represent all three codes as an independent chairman.

The idea Dr Jackson could simply excuse himself from the board meeting or abstain every time a thoroughbred racing issue came up would not work as issues to do with all three codes are constantly coming up, she told the court.

In her finding, Justice Mallon concluded the word “independent”– when read in light of its purpose – is someone who is independent of all three codes.

“To be independent the person must not have past or present relationships, associations or interests with any of the three codes that would materially influence their decisions on the governing body in relation to that code.”

She found several associations linking Dr Jackson to the industry:

• Dr Jackson was one of the three representatives appointed on the nomination of the thoroughbred industry, a position which he held for over three years (August 2003 to December 2006).
• As at December 23, 2006, he was viewed by the Thoroughbred Breeders’ Association as “the prominent thoroughbred representative” on the NZRB governing body.
• After a four-year break from NZRB involvement, Dr Jackson was appointed under s 11(1)(b), that is on the nomination of the thoroughbred code. He held that position in the two years immediately before his appointment as independent chairperson.
• Dr Jackson was nominated for the position of independent chairperson by the Thoroughbred Breeders’ Association.
• He continues to own racing and breeding interests in thoroughbred and pacer horses in New Zealand and Australia.
• He owns racing stables in Matamata.
• He is a member of the Thoroughbred Breeders’ Association.

The court case came just a week after the Racing Board’s first AGM in six years, during which Dr Jackson told NBR ONLINE the clean-out of the board and management in July last year had resulted in a change of atmosphere.

bcunningham@nbr.co.nz