IN the MATTER of the Rules of the Supreme Court Order 64 Rule 1B and 1BB & in the MATTER of the Racing and Betting Act 1980 & in the MATTER of Queensland Principal Club

[1999] QSC 12

IN THE SUPREME COURT

OF QUEENSLAND

No 11905 of 1998

[IN THE MATTER of the Rules of the Supreme Court Order 64 Rule 1B and 1BB & IN THE MATTER of The Racing and Betting Act 1980 & IN THE MATTER of Queensland Principal Club]

IN THE MATTER of the Rules of the Supreme Court Order 64 Rule 1B and 1BB

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IN THE MATTER of The Racing and Betting Act 1980

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IN THE MATTER of Queensland Principal Club

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IN THE MATTER of The Kooralbyn Picnic Race Day held on 8 June 1998

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 29 January 1999

CATCHWORDS: RACING - participants in a “combined sports meeting” licenced under s.135 of Racing and Betting Act but not registered or authorised under Rules of Racing disqualified by Queensland Principal Club - held disqualification within jurisdiction - ss.5(definitions), 11, 11A, 11B, 16, 22, 31 and 135 of Racing and Betting Act considered - Australian Rules of Racing 2, 6, 8, 10, 13 and 35 considered - Local Rules of Racing 77 considered.

Stephen v Naylor (1937) 37 S R (NSW) 127 at 139 applied.

Counsel:  Sweeney for applicants.

Dunning for respondent.

Solicitors:T F Wardrobe T/A for Hickey Lawyers for applicants.

K Martin for respondent.

Hearing Date:              14 January, 1999

IN THE SUPREME COURT

OF QUEENSLAND

No 11905 of 1998

IN THE MATTER of the Rules of the Supreme Court Order 64 Rule 1B and 1BB

- and -

IN THE MATTER of The Racing and Betting Act 1980

- and -

IN THE MATTER of Queensland Principal Club

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IN THE MATTER of The Kooralbyn Picnic Race Day held on 8 June 1998

DRAFT REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 29 January 1999

1. On 8 June 1998 Kooralbyn Hotel Resort Ltd (“Kooralbyn”) conducted the Kooralbyn Picnic Race Day pursuant to a licence to conduct a “combined sports meeting” granted pursuant to the provisions of the Racing and Betting Act 1980 (“the Act”). Each of the four applicants (Willey, Van Rees, Hogno and Lamb) participated in the horse racing part of the program on that day. Lamb was at the time licensed as a track work rider by the Queensland Principal Club (“QPC”) pursuant to the Rules of Racing as defined in the Act; none of the other applicants was the holder of any licence thereunder. Each of the four applicants was called before a meeting of Stewards of the QPC and dealt with pursuant to Australian Rule (“AR”) 6 and Local Rule (“LR”) 77 for taking part in an unregistered race meeting. Each was disqualified with the consequences set out in AR 182 for a period of time.

2. Each of the applicants contends that, for a variety of reasons, QPC acted beyond power and by the Originating Summons they seek a range of declarations the effect of which would amount to holding that QPC acted beyond power and that the disqualifications were unlawful and in consequence void.

3. The critical questions raised by the application are essentially concerned with the proper construction of various provisions of the Act and the Rules of Racing. The situation can best be explained by first referring to the relevant provisions of the Act and Rules of Racing and then referring to relevant facts.

4. The preamble describes the Act as “An Act to consolidate and amend the law relating to the regulation of racing, trotting and greyhound racing, totalisators, betting by and with bookmakers and the suppression of unlawful betting and to provide for matters incidental thereto or consequential thereon and for other purposes.” In very broad terms it could be said that the legislation was primarily concerned with betting. It provides for the regulation of bookmakers (Part 4), the constitution of the Totalisator Administration Board of Queensland and the regulation of totalisators (Part 5) and deals with unlawful betting (Part 6). The regulation of races for galloping horses, trotters and greyhounds is dealt with in Part 3; the principal purpose of the provisions found therein would appear to be to regulate such racing so as to ensure that betting thereon is fair and open. Because of the primary emphasis in the legislation on betting, the Act also deals with athletic clubs and athletic meetings; (see, for example, ss.147 and 147A).

5. QPC is established by s.11 of the Act. Its functions are then set out in s.11A(1) as follows:

   “(a)to control, supervise, regulate and promote racing; and

   (b)to initiate, develop and implement policies it considers conducive to the development and welfare of the racing industry and the protection of the public interest, in relation to the racing industry.”

   The term “racing” is defined in s.5 as including “horse race or race meeting” and in turn “horse race” is defined as a “race for galloping horses”. The term “race meeting” is defined to mean “a meeting for the purposes of conducting horse races.” “Race” is given a wide meaning: “any contest, event or contingency in which 2 or more runners compete one against the other or others, in a test of speed over a designated distance or period of time or for the purpose of providing a contingency on which bets may be made, but does not include any contest, event or contingency in which skills other than speed alone are tested or a trial.” For purposes of that definition “runner means a horse or greyhound that is a final acceptor in a race.” That at least excludes two-legged runners from a race for purposes of the Act.

6. The “rules of racing” are defined in s.5 as being “the rules for the time being governing and relating to horse racing under the control of the Queensland Principal Club, being with respect to the Queensland Principal Club an amalgamation of the Australian rules of racing as adopted by the club and the local rules of racing of the club together with the regulations made thereunder.”  In s.11A(2) it is said that those rules of racing “to the extent necessary to give operation and effect to this section, are to be read subject to this section.”

7. Section 11B confers on QPC wide powers to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.  Amongst other things it may “register or license, or refuse to register or license, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, bookmaker, bookmaker’s clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period.”  It may also supervise the activities of all persons “engaged in or associated with racing”.  In addition it may make or amend local rules of racing.

8. Section 16 provides that a “person other than a non-proprietary registered race club shall not conduct a horse race or hold a horse race meeting.”  Section 22 provides that a “race club must not conduct a horse race, or hold a race meeting, on a day not allotted to the club for a race meeting under this Act.”  Section 31 is then in these terms:

   “(1)A person shall not hold a race meeting or conduct a horse race on a racecourse that is not licensed under this Act.

   (2)A person who -

   (a)unlawfully holds a race meeting or conducts a horse race; or

   (b)assists in holding or conducting or promotes or assists in promoting a race meeting or horse race that is unlawful;

   commits an offence against this Act.”

   That appears to be reflected in s.137(1) which provides that a “race club must not conduct a meeting at a venue that is not licensed.”

9. It is sufficient for present purposes to note, without going into detail, that Part 3 Division 2 of the Act provides for the constitution of the Queensland Harness Racing Board whose function is to control trotting racing in Queensland, and Part 3 Division 3 provides for the establishment of the Greyhound Racing Authority whose function is to control greyhound racing in the State.

10. In s.5 there is a definition of “combined sports meeting” as follows: “means a meeting for the conduct of foot races, bicycle races, or other games, sports pastimes, contests, events or contingencies that include one or more than one horse race, trotting race or greyhound race.”  The definition of “meeting” is that it means relevantly “a race, trotting or greyhound meeting”.  It may well be that the expression “combined sports meeting” would therefore cover a meeting at which there was to be a mixture of gallops, trots and greyhound racing without any other sporting event, but it is not necessary to decide that for present purposes.  Clearly the definition would cover a meeting at which there were some other games or sports and some horse races.

11. Such meetings are dealt with in s.135 of the Act. One finds therein a definition of “horse race” for purposes of such a meeting; the term “includes hurdle race or steeple chase but does not include flag race or jumping or a like event in which a skill other than speed alone is tested.” The section provides that a person who desires to hold a combined sports meeting must make an application “as prescribed for a permit”. The prescribed form (Form 6) requires the following particulars to be provided: name of applicant, address of applicant, date of proposed meeting, place where meeting to be held, number of races for horses or greyhounds, nature and number of other types of races, general description of the course over which the races are to be conducted, greatest width of the course proper, least width of the course proper, length of straight, inner perimeter of course proper, details of any sharp turns in the course proper, name of insurance company, number of insurance policy and amount of insurance cover.

12. The section provides that the chief executive shall consider the application and may grant it or refuse it without giving any reason therefore.  When the application is granted a permit issues which must be in writing and “shall authorise the holder thereof to conduct a combined sports meeting and to do such other acts and things as are prescribed with respect thereto.”

13. Kooralbyn applied for a permit for a combined sports meeting to be held on 8 June 1998 as part of the Beaudesert Shire’s “1998 Country and Horse Festival”.  A copy of the application submitted to the chief executive is not included in the material before the court, but it would appear that the application referred to tent pegging, sheepdog trial, skydiving demonstration, children’s sideshow, and races for galloping horses.  A permit was issued in these terms:

    “This permit is granted to the Kooralbyn Hotel Resort in respect of a Combined Sports Meeting to be held at the Kooralbyn Hotel on Monday, 8 June 1998 subject to the provisions of the above Act and to the following conditions:-

    1.Betting by or with bookmakers is prohibited.

    2.The operation of the totalisator is prohibited.

    3.A policy of insurance is taken out as indicated in the application.”

    According to the organiser (SCW Smith) because “there were to be horse races Kooralbyn invited various persons to enter and ride horses in that aspect of the event.  There was no betting by or with bookmakers or otherwise.”  Promotional material circulated with respect to the event indicated that there was to be one stock horse race, two Arabian races, and five open races with a total prize money of $7,500.

14. I turn now to the Rules of Racing which are relevant to this application. Of critical importance is AR 2 which is in these terms: “Any person who takes part in any matter coming within these Rules thereby agrees with each and every Principal Club to be bound by them”. Then AR 6(a) provides that these “Rules apply to all races held under the management or control of a Principal Club ...”. Then it is provided by para (b) that:

    “If any race meeting is not held under these Rules all horses taking part shall ipso facto be disqualified, and no person taking part therein shall be competent to enter a horse for any race held under the Rules or to hold or continue to hold any licence unless the Committee shall otherwise determine.”

    In accordance with AR 8 Stewards would be appointed to regulate and control all registered race meetings.  Stewards are given a very wide power by AR 10; they may “at any time enquire into, adjudicate upon and deal with any matter in connection with any race meeting or any matter or incident related to racing.”

15. AR 12 provides for the registration of race meetings:

    “There shall also be kept a register of all race meetings approved to be held under these Rules other than those held by registered Clubs.  Every application for such registration accompanied by the proposed program shall be made in writing the Secretary of the Principal Club by some person authorised by the  organisers of the meeting before the program is published.”

    AR 13 gives the Committee the power in its discretion to accept or refuse registration of any meeting.  AR 35 gives the Committee an important discretion; it may “in its absolute discretion exempt such meetings or races as they think fit from the provisions of all or any of these Rules on such conditions as they think fit.”  That Rule if properly applied would mean that an organisation (for example) wishing to hold a galloping race as part of a charity event without betting could avoid the perhaps otherwise repressive conditions of having to register the meeting and have stewards present there at.  If exemption were granted it would not mean that such a meeting was an unregistered meeting for purposes of AR 6(b).

16. Also of critical importance for present purposes is LR 77 which is in these terms:

    “Any person who nominates or enters owns trains or rides or undertakes the care or management or is otherwise interested in a horse entered or running at an unregistered meeting becomes ipso facto a person disqualified within the meaning of the Rules.”

    The consequences of disqualification are provides in AR 182.  It is not necessary to set those consequences out in detail.  Suffice it to say that a disqualified person may not during the period of disqualification enter upon any racecourse, be employed or engaged in any capacity in a racing stable, ride any racehorse in any race or trial or enter any racehorse for a race.

17. It is now necessary to refer to what each of the applicants did at the Kooralbyn Picnic Race Day on 8 June 1998, and how each was subsequently dealt with by QPC.

18. The applicant Lamb, was, prior to 23 June 1998, a freelance or track work rider licenced as such with  QPC.  He rode four horses in each of four races at the combined sports meeting held at Kooralbyn on 8 June 1998.  He had become aware of the meeting at Kooralbyn on seeing an advertisement for it at the Clifford Park stalls in Toowoomba; that advertisement suggested that it was a Picnic Race Meeting.  He says he did not realise that it was an unregistered meeting.  For many years his only means of income has been as a stable hand and freelance rider.  Shortly after 8 June 1998 he was contacted and informed that his attendance was required before the Stewards of  QPC on 23 June 1998.  He attended before the Stewards on that date and was disqualified pursuant to AR 182 because of his participation in the Kooralbyn races.  Shortly thereafter he wrote to QPC indicating regret for his actions and applying for his licence as a stable hand to be reissued.  QPC replied by letter dated 7 August 1998 refusing that application, and informing Lamb that no further application would be considered before the expiration of 12 months from the date the disqualification was imposed.

19. Prior to June 1998 the applicant Hogno operated a spelling and stud business in the Hodgsonvale area.  That business drew clients from the racing industry and provided stud and spelling services for horse owners and trainers.  He trained and nominated the horse “Rare Edition” for races at Kooralbyn on 8 June 1998.  At the time he was not licenced with the QPC.  In early September he received a letter from QPC requesting that he contact that body in connection with his involvement in the races at Kooralbyn.  He appeared before QPC on 9 October 1998 and was disqualified by reason of his participation therein.  He has not made any application for any limitation on his disqualification and is not presently able to have any thoroughbred horses under his care or control; that has had a substantial adverse effect on is business.

20. Prior to June 1998 the applicant Willey was not the holder of any licence issued by QPC.  He nominated and trained two horses, and rode one horse in two races, at the meeting in question on 8 June 1998.  He received a letter from QPC requiring his attendance before the Stewards on 7 July 1998.  On that day he was disqualified by reason of his participation in the Kooralbyn meeting.  Subsequently, after correspondence from his solicitor, QPC lifted his disqualification from 7 November 1998; he was thus disqualified for a period of four months.

21. The applicant, Ms Van Rees, rode one horse at the Kooralbyn meeting.  She received a letter from QPC requesting her attendance before Stewards on 7 July 1998.  She was not the holder of any licence issued by QPC.  The Stewards disqualified her by reason of her participation in the meeting in question.  Consequent upon correspondence from her solicitor the QPC lifted her disqualification from 7 November 1998; thus she was disqualified for a period of four months.

22. Though the disqualifications of Willey and Van Rees have now been lifted, each claims to have suffered loss during the four month period the disqualificaiton was in force.  Further, and more importantly, each wishes to have the disqualificaiton declared invalid because it remains as a “black mark” against each of their names in the racing industry.  Representations by his solicitors have not obtained any remission of the disqualification imposed on Lamb; the position adopted by QPC is that they will not entertain any applicaiton to reconsider the matter until he has served a period of 12 months disqualificaiton.  As Hogno has not made any application he remains disqualified indefinitely.

23. The principal contention of counsel for the applicants was that the meeting on 8 June 1998 at Kooralbyn was neither illegal nor unauthorised because a licence to conduct a “combined sports meeting” had been granted with respect to it.  That was said to be so for two reasons:

    (i)the Act, being a statute, was superior to the Rules of Racing and something made legal by licence granted pursuant to the Act could not be unauthorised for purposes of the Rules of Racing;

    (ii)a “combined sports meeting” was not a “race meeting” for purposes of the Rules of Racing.

    It is necessary to deal with each of those propositions.

24. The Act and the Rules of Racing can clearly be read together without there being any necessary inconsistency so far as the question in issue is concerned.  There is no reason why an organisation granted a licence to hold a “combined sports meeting” could not apply under AR 12 for the registration of the event as a race meeting.  That application would enliven the powers of  QPC pursuant to AR 13 and AR 35.  If it registered the meeting then it would have to be conducted in accordance with such of the Rules of Racing as were made applicable to it.  If registration was not granted, or if no application for registration was made, the combined sports meeting could proceed, but it would be an unauthorised meeting for purposes of the Rules of Racing.  The fact that the meeting was legal pursuant to the provisions of the statute is not necessarily inconsistent with that.

25. The fact that registration of the meeting pursuant to the Rules of Racing and licencing of the meeting pursuant to s.135 of the Act are mutually distinct is confirmed by the fact that a registered club which wished to combine some other sports activities with a picnic race day would have to apply under s.135 of the Act for a combined sports meeting licence. If that registered club did not obtain the licence under s.135 the event would be a registered (and thereby authorised) meeting pursuant to the Rules of Racing but would be an illegal event pursuant to the statute.

1. The Act, as noted above, specifically acknowledges the force and effect of the Rules of Racing, and in consequence there is no necessary inconsistency between saying that an event was legal for purposes of the Act but unauthorised so far as the Rules of Racing were concerned.

2. There were two limbs to the submission that the court should conclude that a “combined sports meeting” was not a “race meeting” for purposes of both the Act and the Rules of Racing. The first proposition was based simply on the different terminology. There are definitions in the Act of each expression; therefore they must be separate and distinct concepts. That is not necessarily so. The definition of “combined sports meeting” contains a reference to a “horse race” so it is difficult to see why they should be regarded as mutually exclusive. There would be force in that argument if a “combined sports meeting” was clearly an event separate and distinct from a “race meeting”. But as pointed out above a registered racing club wishing to hold some other sporting events in conjunction with an authorised race meeting would have to obtain the licence under s.135; for that reason the argument loses most, if not all, of its force.

3. The second proposition was that the word “or” in the definition of “race” in the Act should be read as “and”. If that was done then it would be necessary for there to be a “race meeting” that the race provided a contingency on which bets were made. However, I can see no valid reason for giving the term “or” anything other than its ordinary meaning when used in this definition. There is no good reason, in my view, for adopting anything other than the plain meaning of the term “or” in the definition of “race”. The reasoning of the Full Court in R v Queensland Trotting Board Ex Parte Croghan (1979) Qd R 89 provides a good example of the court applying the natural and ordinary meaning of words when dealing with a rule or statutory provision of the type in question here.

4. It follows that I am not persuaded that the meeting at Kooralbyn was authorised for purposes of the Rules of Racing because a licence had been granted with respect to it under s.135 of the Act. Nor am I persuaded that this was not a “race meeting” for purposes of those Rules.

5. Counsel for the applicants also submitted that they were outside the disciplinary jurisdiction of QPC.  That, it was said, was a consequence of the fact that the applicants (apart from Lamb) were not licensees of QPC and the event in question was not one to which the Rules of Racing applied.  Even if the Rules of Racing did not apply to the event I am of the view that this argument must fail.

6. The applicant Lamb was the holder of a licence issued by QPC and was therefore contractually bound by the Rules of Racing.  Such a conclusion was reached by the Full Court in R v Wadley Ex Parte Burton (1976) Qd R 286 at 292. Lamb was contractually bound by the rules and if he breached any of them he was liable to be dealt with by QPC.

7. But the Rules of Racing have a wider effect than binding those who are contractually bound to obey them.  The legal position is best illustrated by the decision of the Privy Council in Stephen v Naylor (1937) 37 S R (NSW) 127.  The respondent in that case had been, prior to the events in question, a bookmaker, but at the material time his case was that he desired and was entitled to go on to the race course as a member of the public for his own purposes which included attending to his business of betting large sums on horses racing there (129).   The racing club in question suspected that the respondent was party to serious irregularities in connection with the ownership of a horse which had run in a race under its control.  The respondent was thereupon summoned to an enquiry and it was agreed that he gave false evidence thereat.  In consequence he was disqualified under the Rules of Racing.

8. The respondent’s main contention was that he was not subject to the Rules of Racing and that they were ineffective to bring about his disqualification and therefore his exclusion from the course.  That submission was accepted in the New South Wales Full Court, but was rejected by the Privy Council.  In delivering judgment at 139 Lord Roche said:

   “The by-law is clear enough and gives power to exclude disqualified persons.  The question then is what is a disqualified person.  The dictionary to which reference is to be made, as everyone knew, is the Rules of Racing.  The meaning there given is clear and includes one in the respondent’s case.  It is not a question whether he consented to any adjudication or submitted to any jurisdiction.  The Club properly undertook to regulate racing within its territorial limits and properly announced the rules by which it would regulate it and properly also to satisfy the claims of justice gave an opportunity to anyone whose conduct called for enquiry in connection with racing within those limits to attend and proffer explanations.  Disqualification is a well known and a legitimate and indeed a necessary safeguard to be adopted to secure the absence from the race course of persons who have been found guilty of conduct gravely detrimental to the interests of racing.  The exercise of such  jurisdiction may as to some matters and things such as licencing, arise out of consent, but in others, such as the present, it seems no more to depend upon consent than does the disqualification of a horse.  A horse is disqualified because improper things are done with it.  The respondent was disqualified because he impeded by lying the course of a necessary and proper enquiry and he has to suffer not because he consented to be bound by the rules, but because he permitted himself so to act as to bring his actions within their purview.  Their Lordships see nothing to warrant the conclusion that this matter or others proper to be dealt with by Rules of Racing must be dealt with by by-law and it is their opinion both convenient and legitimate to enact by by-law that such a disqualification as this resulting from violation of the Rules of Racing may be a proper ground for exclusion from the race course.”

9. Here the applicants participated in a race meeting which was not authorised pursuant to the Rules of Racing. That was conduct which the Act and the Rules provided was a breach of the Rules of Racing and gave QPC jurisdiction to deal with those who committed that breach. The punishment, disqualification, is primarily concerned with the participation of the applicants in “matters” covered by the Rules (cf. AR 2) and not with preventing them from carrying on any activities not within the purview of the Rules.

10. In the circumstances I am satisfied that on a proper construction of the Act and Rules of Racing QPC had jurisdiction to deal with the applicants.

11. The final submission made by counsel for the applicants was that the QPC decision was void for unreasonableness.  Such case has not been made out on the material before this court.  That is particularly so with respect to the applicants Willey and Van Rees whose disqualification was lifted after 4 months.  The applicant Hogno has not made any application for the lifting of his disqualification in accordance with the decision with respect to Willey and Van Rees, and in consequence it is difficult to say that he has been singled out for unfair treatment.  The case of the applicant Lamb is different.  He was a licensee and contractually bound by the Rules; he knew, or ought to have known, of the consequences of participating in an unauthorised race meeting.  At best for him it can be said that he reasonably believed the meeting was authorised because he saw it advertised on a registered track.  But the question of the severity of the penalty is not for this court to determine.  The penalty imposed was in accordance with the Rules of Racing which, as noted above, have been given statutory effect.

12. Counsel for the applicants made a number of submissions which were based on facts far removed from those currently under consideration.  For example, he submitted that if the decision of QPC here was correct then all who participated in a pony race at a pony club meeting would have to be disqualified by operation of AR 6 and LR 77.  That question was not fully argued and was not properly before the court; therefore I make no comment on the question.  It is sufficient to say that such considerations are not sufficient to result in a conclusion that either the Rules themselves or the decision here taken thereunder were void  for unreasonableness.

13. The application should therefore be dismissed with costs.