McHugh v Australian Jockey Club Limited (No 5)

[2011] FCA 1130

FEDERAL COURT OF AUSTRALIA

McHugh v Australian Jockey Club Limited (No 5) [2011] FCA 1130

Citation:		McHugh v Australian Jockey Club Limited (No 5) [2011] FCA 1130
Parties:		BRUCE MCHUGH v AUSTRALIAN JOCKEY CLUB LIMITED, VICTORIA RACING CLUB LIMITED, AUSTRALIAN RACING BOARD LIMITED, RACING INFORMATION SERVICES AUSTRALIA PTY LIMITED, THOROUGHBRED BREEDERS AUSTRALIA LIMITED and AUSTRALIAN TURF CLUB LIMITED
File number(s):		NSD 1187 of 2009
Judge:		ROBERTSON J
Date of judgment:		21 September 2011
Date of hearing:	21 September 2011
Place:	Sydney
Division	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	101
Counsel for the Applicant:	Mr A Tonking SC with Mr J Lazarus and Ms P Arcus
Solicitor for the Applicant:	Brock Partners
Counsel for the First, Second and Sixth Respondents:	Mr A Bannon SC with Dr R Higgins
Solicitor for the First, Second and Sixth Respondents:	Johnson Winter & Slattery
Counsel for the Third Respondent:	Mr GES Ng
Solicitor for the Third Respondent:	Yeldham Price O'Brien Lusk
Counsel for the Fifth Respondent:	Mr J Emmett
Solicitor for the Fifth Respondent:	Esplins Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1187 of 2009

BETWEEN:

BRUCE MCHUGH
Applicant

AND:

AUSTRALIAN JOCKEY CLUB LIMITED
First Respondent

VICTORIA RACING CLUB LIMITED
Second Respondent

AUSTRALIAN RACING BOARD LIMITED
Third Respondent

THOROUGHBRED BREEDERS AUSTRALIA LIMITED
Fifth Respondent

AUSTRALIAN TURF CLUB LIMITED
Sixth Respondent

JUDGE:	ROBERTSON J
DATE:	21 SEPTEMBER 2011
PLACE:	SYDNEY

REASONS FOR RULINGS

1. A question has arisen about the admissibility of two reports by Dr Digby, the reports being dated 20 December 2010 and 17 August 2011. That material was the subject of comprehensive objections on behalf of the respondents and responses to those objections on behalf of the applicant, set out in MFI 4. The extent and detail of that material will allow my rulings to be understood without reproducing the objections and the responses.

2. The items of MFI 4, to illustrate the length and detail of the material that I have just referred to in relation to the first report of Dr Digby, extend from items 572 to 687, item 572 being on page 96 and item 687 being on page 135 and, for the second report, items 688 through to 739.  In addition and very usefully, the relevant parties made written submissions.  Those of the first, second and sixth respondents, adopted by the other respondents, are dated 19 September 2011 and the applicant’s outline of written submissions is dated 20 September 2011. Also there has been this morning short oral submissions on behalf of those parties.  This, therefore, puts me in a position to rule on the contested material.

3. I note from Dr Digby’s affidavit sworn on 20 December 2010 that he graduated from the University of Sydney in 1956 with the degree of Bachelor of Veterinary Science with honours and practised as a veterinarian between 1957 and 1967. No further detail of Dr Digby’s study, training or experience in relation to equine Artificial Insemination appears. He was the Keeper of the Australian Stud Book from 1988 to 2004.

4. I do not reject the entirety of the two reports of Dr Digby on any of the grounds advanced on behalf of the respondents. Instead, in my view, the better course is to seek to deal with each of the reports at a level of detail and that is what I propose now to do. 

5. Turning to the first report of Dr Digby, I reject the last sentence of paragraph 1 as being a submission, but otherwise I admit paragraph 1.  The same applies to paragraph 2, that is, I reject the last sentence as a submission but admit the balance. 

6. Paragraph 3 I reject as not having a sufficient basis in Dr Digby’s field of study and experience, but I grant leave to the applicant, if so desired, to seek to lay a basis for that material in Dr Digby’s course of either study or experience in the period that he there refers to which is from 1990 to 2010 or 2011.  At the end of paragraph 3 there is a paper or an article referred to. It is tendered not on the basis of the opinions there stated but, to use the word in the applicant’s submissions, as “illustrative” only.  I do not admit it as a statement of opinion by the authors or of the opinion of Dr Digby.  I leave it open to Mr Tonking, Senior Counsel for the applicant, to persuade me that the concept of the report going in as “illustrative” has any relevant content. 

7. Paragraph 4 is in the same category as paragraph 3, that is, the scientific and veterinary advances there referred to.  In my view, it must be rejected on the basis of it not having been established what the basis is for Dr Digby’s conclusions about the activities or preferences of breeders. I reject paragraph 4.  Whether some part of it becomes admissible if counsel for the applicant takes up the issue of Dr Digby’s fields of study or experience may be something that has to be returned to later.

8. Paragraph 5 I reject on the footing that no basis in either fact or assumption has been established and I reject it because, as it appears to me, the questions that are dealt with there in a rolled-up way are matters of controversy. 

9. Paragraph 6 I reject the last sentence, that is, the sentence at the top of page 6, as having an insufficient foundation.  I also reject the last sentence of subparagraph (c), which is both a conclusion and a conclusion without any foundation for it being laid in the material in the report.  The balance of paragraph 6 I admit but because Dr Digby’s knowledge and experience and field of study is put at such a general level, that material is likely to be of little weight.

10. Paragraphs 7, 8 and 9 I reject on two grounds.  It is put at too general a level in the context of this litigation where these matters are controversial and furthermore the underlying material, if any, is not disclosed. 

11. Paragraphs 10 and following are in my view in a different category, and I will admit paragraphs 10 through to 17, but I do so on the basis that the word “market” in paragraph 15, which is used a number of times, does not mean market in any technical sense, but market in the sense of total number.  That word appears in paragraph 15(a), (b), (c) and in the material that follows in the two dot points.

12. Paragraphs 16 and 17 in my view are admissible.  The factual basis for them and the reasoning are disclosed.  I note that there is a discussion paper written by Dr Digby which is referred to the last sentence of paragraph 16.  Insofar as that material is said to be extracted from the data from Weatherbys, it seems to me it falls into a different category than the more general articles later referred to by Dr Digby, and on that basis, subject to weight, which can be the subject of submission, I would admit that paper as a précis of the data that Dr Digby there refers to.

13. Paragraphs 18 through to 20 I will admit, although consistently with what I have so far said, what Dr Digby says about those matters, at least at the level of detail, is likely to be of limited weight, given his only general qualification and experience as a veterinarian. 

14. Paragraph 21 I reject as not having a disclosed factual basis. 

15. Paragraphs 22 through to 24 are covered by my earlier rulings, that is, they are rejected on the basis that there is an insufficient factual or other basis for the conclusions stated, particularly in the absence of any material establishing Dr Digby’s fields of study or experience.

16. Paragraph 25, I admit the first sentence.  The second sentence, that is, beginning “This has been made possible by scientific development…” I reject for the same reasons as I have earlier indicated. 

17. Paragraph 26 does not disclose any factual or other basis for the conclusions there stated and I reject that material. 

18. Paragraphs 27 and 28 I admit. 

19. Paragraphs 29 to 31 dealing with the history of artificial insemination I reject for the same reason, that is, the material that I have does not disclose that Dr Digby has a relevant field of study or experience.  As I say, it may be that if counsel for the applicant wishes to take up the leave that I have granted to seek to adduce material of that nature, that is, study or experience, then there could be a basis for that material being admitted.

20. Paragraph 32 I admit.

21. Paragraph 33 is the subject of an indication on the part of the applicant that the applicant does not seek to read the entirety of that material.  I have to say that it was not clear to me what the material was that is not to be read, because the language of the revised schedule did not conform with the language of the paragraph. In any event, I reject paragraph 33 down to the sentence that begins, “In 1989, Alan Galloway wrote an article…”  As to that article, it is tendered, as I understand it, not on the basis of the truth of its contents but as indicating the state of discussion or debate and I admit it on that basis. There is also another article written by Dr Digby which falls into the category that I earlier mentioned, that is, it is not tendered as evidence of the truth of the contents, and I will admit that material on those limited bases.

22. Paragraph 34, in my view, is a summary which does not disclose any factual or other basis, and I reject it. Paragraphs 35 and 36 fall into the same category.  It may be that the leave that I have referred to before would fill a gap that would support some part of paragraph 36, but as things stand I reject paragraph 36. 

23. Paragraph 37 constitutes a summary of what, in the course of the hearing thus far, has been both the subject of other evidence, but is also a matter of controversy at a detailed level, so as a summary I would reject it. Equally, it is not clear that the deponent has the relevant expertise, but I should add that even if it becomes established that Dr Digby has that expertise, my earlier ground for rejecting it would remain.

24. Paragraph 38 I reject as argument or submission. 

25. Paragraph 39 is a summary and does not disclose the factual basis for it.  I reject paragraph 39. 

26. Paragraph 40, the second sentence is not read, that is, from about line 5, “An increasing number of Thoroughbred stud masters…” but as to the balance, again, the deponent’s expertise, both in the sense of study or experience, has not been established. I reject paragraph 40. Paragraph 41 is in the same category. 

27. Paragraph 42, the last sentence is not read. As to the earlier part of paragraph 42, there is no basis for it in Dr Digby’s field of study or experience, so I would reject that as well as the evidence stands.

28. Paragraph 43, it is said the article is tendered on the basis that it is illustrative but since thus far Dr Digby’s field of expertise does not extend to this matter, it cannot be admissible for Dr Digby to say that he agrees with it, so on that basis I would reject paragraph 43.  The article may perhaps be tendered once it becomes clearer what the illustrative basis of the tender really means. 

29. Paragraph 44 must fall into the same category, that is, that by implication Dr Digby agrees with the paper by Professor Allen, which will not make it admissible. But if the applicant can make clear in due course what the paper is illustrative of, or what the content of the illustrative tender is, then perhaps that paper can be admitted later.

30. Paragraph 45 has a number of difficulties.  One is the deponent’s field of expertise.  The second is that it is a high level summary and it is not at all clear to me from the way in which the deponent has referred to the specified articles, what are the advantages to which the deponent refers.  If he is referring to medical advantages, then the ground for his expertise in relation to that remains to be established and on that basis I would reject that paragraph.  The articles themselves can go in as no more than indicating the state of discussion of the issues they deal with at the time that they were published.

31. Paragraph 46, the first sentence is not read.  I would reject the balance on the basis that it is a summary and tends to argument and submissions and also, of course, the deponent’s field of knowledge and experience does not support the balance of 46.

32. Paragraphs 47, 48 and 49 are not read.

33. Paragraph 50, in my view, is a submission and has to be rejected.  It is a submission partly because it goes outside any field of expertise that Dr Digby has in both the first and second bullet points referring, in effect, to competitive advantages, and in the third point to market forces and in the fourth point again to competition. 

34. Paragraph 51, I would admit.  The publication of the official website of the World Breeding Federation for Sports Horses is admitted, but I reject the balance as Dr Digby’s relevant expertise has not been established.  Paragraph 52 would fall into the same category, as would paragraph 53.  I should observe, in relation to 51, 52, 53 that they are couched in such conditional terms that they are probably in a sense self-fulfilling in any event.

35. Paragraph 54 I would reject on the same basis of lack of expertise. 

36. Paragraph 55 is not read. 

37. Paragraph 56 is a submission, in my view, or an argument and I would reject it.  Paragraphs 57 and 58 fall into the same category. 

38. Paragraph 59 I would admit as Dr Digby’s established general expertise as a veterinarian would support it. But paragraph 60 seems to me to be in a slightly different category.  It must involve some primary facts or primary observations, the basis for which has not yet been established. I reject paragraph 60 as it stands. 

39. Paragraphs 61 through to 67 I will admit.  That material deals with the Australian Stud Book. 

40. Paragraphs 68 and 69 I will admit.  I admit the first sentence of paragraph 70 but the second sentence beginning, “These concentrations…” I reject as involving both argument and undisclosed factual material.

41. I admit paragraph 71. 

42. Paragraphs 72 to 74 I reject as not disclosing any factual basis for the various conclusions there expressed, and amounting to a submission. 

43. Paragraph 75 is not read. 

44. There is no primary factual material in paragraph 76 and I would reject it on that basis. 

45. Paragraph 77 I admit, apart from the last sentence beginning, “This breed eligibility qualification…” which in my view is a submission. 

46. Paragraph 78 falls with paragraph 36, which I earlier rejected and is a restatement of paragraph 36 in my view. 

47. Paragraph 79 beginning, “In my opinion…” and ending at the top of page 28 with the words “…which are unacceptable to them” I reject as argument and submission as there is no established field of expertise to found that material.   

48. Paragraph 80 I admit.

49. The first two sentences of paragraph 81 I admit and the third to the penultimate sentence I reject.  The last sentence I admit.  There is some confusion here as to the sentences that are not read.  The document handed to me yesterday says the fifth and sixth sentences are not read.  I think from the description it probably means the seventh and eighth sentences, beginning, “ISBC thereafter…” down to the end of the penultimate sentence, but in any event, I reject the conclusory way in which that material is put in paragraph 81.

50. Paragraphs 82 to 84 I admit.

51. The first sentence of 85 I will admit.  I would reject the last sentence of paragraph 85 as a submission, that is, “The rules were retained….” to the end of the paragraph.

52. Paragraph 86 is put, as I understand it, by the applicant as going to the deponent’s state of mind, but if it is so put, in my view it is irrelevant, and I reject paragraph 86.

53. The first two sentences of paragraph 87 disclose no factual material and I reject those two sentences. The balance of paragraph 87 I would reject as argument.

54. I admit paragraph 88 on the limited basis on which it is tendered, that is, the papers written by Dr Digby are tendered not as the truth of the matter, but the fact that the papers were published at that time. 

55. Paragraph 89, in my view, is argument or submission and I reject it.

56. Paragraphs 90 to 98 I admit as factual material, but I should pause at paragraph 92 to reject the sentence in the fifth line beginning, “The result did not support the imposition of a ban…”  The paper I admit, not as to the truth of its contents but as to the fact that it was provided.  Thus I admit paragraphs 90 to 98 subject to that exception in paragraph 92.

57. I reject the second sentence of paragraph 99 at the very foot of page 33, “This was the first intimation…” as an argument or a submission.

58. Paragraph 100, I reject the first sentence, but I admit the balance, so that the letter will, in effect, speak for itself. 

59. Paragraphs 101 to 104 I admit as factual material and I admit paragraph 105. 

60. Paragraph 106 seems to me to have the difficulty that it is expressed in a most conclusory way. I admit the report referred to and the attachments to the report, not as truth of their contents, but as to the fact that they were published.  So I reject paragraph 106 from, “The panel discussion…” which is how it begins down to “…likely to be successful” on the penultimate line on page 35, but I admit the balance. 

61. I reject paragraphs 107 and 108 for the same reason that these are conclusions in a rolled up way from what other people said, that material not being disclosed at least in the paragraphs there relied on. It may be that it emerges from the contemporaneous documents, but the witness cannot deal with those matters in the way stated in paragraphs 107 and 108, in my view. 

62. Paragraph 109 I admit.

63. I admit the part of 110, “The draft constitution was tabled at a meeting of the joint proprietors of the ASB in 2003…” and reject the balance of that sentence. I also reject sentence four beginning, “The paper requested that the ISBC be more forthright…”  If the paper says that, then it will say it for itself.  So I admit the documentary material, but as I have indicated not that part of sentence one and not sentence four beginning, “The paper requested”. 

64. Paragraph 111, I reject the third sentence and the fourth sentence.  The third sentence begins, “To the best of my knowledge”.  The fourth sentence begins, “My conclusion as keeper of the Stud Book”. I also reject, “The issue generated strong adverse reactions amongst the commercial breeders, for example”, but admit the correspondence referred to at the end of paragraph 111. 

65. Paragraph 112 I reject as either a submission or a conclusion from documents where the documents can speak for themselves.

66. Paragraphs 113 to 118 I admit as factual material.

67. I reject paragraph 119 as a submission or argument.

68. I admit paragraphs 120 to 122 as factual material.

69. I admit the first four sentences of paragraph 123. I reject the fifth, sixth and seventh sentences of paragraph 123.  The fifth sentence at the top of page 41 begins, “This program was…” and the seventh sentence begins, “The one-off pilot…” I admit the balance which begins, “The outcomes…” I admit the paper that is referred to there as showing the state of affairs that was in the author’s (Dr Digby’s) view at that time.

70. I admit the first sentence of paragraph 124.  I reject the last sentence as a submission or argument and I admit the paper referred to in the penultimate sentence.  I reject as having an insufficient foundation the balance, that is, beginning, “Discussions with an advisory group…” down to “…Joint Proprietors”.  It may be that the paper referred to in the next sentence deals with those matters. 

71. Paragraph 125 I admit, apart from the words “even though it was nothing more…” to the end of that sentence in the third line.

72. I reject paragraph 126 as speculation on the part of the witness.

73. Paragraph 127 I reject, apart from the last sentence which refers to an article which I would admit on the limited basis on which it is put forward, that is, indicating the state of discussion at that time.

1. The last sentence of paragraph 128 is not read.  I admit the first part of the first sentence of 128, that is, “Australia is one of the few countries to ban the practice of reinforcing of service”, but the balance in my view is either a submission or does not disclose the factual basis for the statement. 

2. Paragraph 129 I admit. 

3. Paragraph 130 I admit as assumption. 

4. The first sentence of paragraph 131 is not read.  I admit the last sentence which is the correspondence, but I reject the sentence that begins, “Discussions at ISBC in my day…”  The contemporary documentary material will speak for itself. The balance of that material I reject as speculation on the basis that it does not have a sufficient factual foundation in what the deponent has set out.

5. The first sentence of paragraph 132 is, in my view, a submission. The balance of that material I admit, although I note that the last sentence, “The eligibility status for racing in Britain…” is unclear and the sentence that follows it shows that that material is going to be of marginal weight. 

6. Paragraph 133, in my view, is a submission which I reject. 

7. Paragraphs 134 and 135 are in a different category and refer to evidence that the witness gave in a commission of inquiry but, in my view, do not disclose if there is any factual material in support of those conclusions.  The fact that the witness has said it before does not make it admissible. 

8. There is an insufficient factual foundation for the conclusions in paragraph 136 which are conclusions of fact. In effect, paragraph 136 is argument and submission, and I would reject it on that basis. 

9. Paragraph 137 I admit. 

10. The first and second sentences of paragraph 138 are not read.  The next part begins, “However, the ASB has contingency plans…” down to and including “but they have been revised since then.”  There is no basis disclosed for that conclusion, and I would reject it. It may be that the deponent can provide more detail about that subject matter and the same subject matter in the next sentence. I grant leave, if desired, for that to be adduced.  The balance of paragraph 138 beginning “hopefully” is submission, which I reject. 

11. Parts of paragraphs 139 to 144 are not read – that is, the first sentence of 142, the second sentence of 143, and the last sentence of 143 – but in my view, the entirety of these paragraphs 139 to 144 is submission and argument, and I would reject them on that basis.

12. Turning briefly to the second report. I will deal with it section by section.

13. I admit paragraphs 1 to 4 and 5 to 10. 

14. In relation to paragraphs 9 to 12, I note that Mr Digby is dealing with an affidavit by Mr Ford, but more particularly at the level of generality in which that material is put, I think there is a sufficient basis in Mr Digby’s experience to express the views that he does.  They are, as I understand them, factual propositions rather than matters of opinion. 

15. Paragraphs 13 to 14, 15 to 16 and 17 to 18, I admit.

16. I reject the last line of paragraph 19 on page 7 which deals with the understanding that the witness has of other people’s states of mind, there being no basis disclosed for that understanding. Otherwise paragraph 19 is admitted as the witness’ understanding.

17. Paragraphs 20 to 21, I admit.  This material does have an element of argument about it, but I take into account that the witness is dealing with propositions in other affidavits and reports, to which he is responding. Again, this material is tendered and admitted as the witness’ understanding.

18. Paragraph 22 is not read.

19. Paragraphs 23 through to 29 deal with, I think, a particular topic about article 12 of the Federation agreement and this witness’ views about that.  If the material to which the deponent Mr Digby is responding is admitted into evidence or tendered in due course, then in my view, Mr Digby is entitled to, and has a basis for responding to that material. 

20. Paragraph 30 is, in my view, at the level of submission or argument, and I would reject it. 

21. Paragraphs 31 through to 34 I would admit on the same basis as paragraphs 23 through to 29; that is, Mr Digby is responding to Mr Ford’s material, and if Mr Ford’s material goes into evidence, then Mr Digby should be allowed to respond to it.

22. Paragraph 35 deals with Mr Ford’s response to Mr Digby’s paragraph 135, which I have rejected.  So paragraph 35 equally is rejected, and it seems to me that paragraph 36 falls with it. 

23. Paragraphs 37 and 38 have a sufficient level of detail, in my view, to be admissible.

24. Paragraph 39, although of the barest potential relevance, I would admit.  That covers paragraphs 39 through to 41 which contain an example which underpins, I think, one of Dr Digby’s propositions.

25. In paragraphs 42 and 43, Dr Digby is responding to statements by Mr Engelbrecht-Bresges and I would admit those paragraphs. 

26. Paragraphs 44 through to 51 take the unusual form of responding to assumptions that other expert witnesses have made.  If that material – that is, material that the witness is dealing with – goes into evidence, then in my view, Dr Digby is entitled to deal with that material, and I admit these paragraphs on that basis. 

27. Paragraph 52 I admit. 

28. Paragraph 53, the final paragraph of the second report, is not read.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Rulings herein of the Honourable Justice Robertson.

Associate:

Dated:       27 September 2011