McHugh v Australian Jockey Club Limited (No 6)

[2011] FCA 1135

FEDERAL COURT OF AUSTRALIA

McHugh v Australian Jockey Club Limited (No 6) [2011] FCA 1135

Citation:		McHugh v Australian Jockey Club Limited (No 6) [2011] FCA 1135
Parties:		BRUCE MCHUGH v AUSTRALIAN JOCKEY CLUB LIMITED, VICTORIA RACING CLUB LIMITED, AUSTRALIAN RACING BOARD LIMITED, THOROUGHBRED BREEDERS AUSTRALIA LIMITED and AUSTRALIAN TURF CLUB LIMITED
File number(s):		NSD 1187 of 2009
Judge:		ROBERTSON J
Date of judgment:		29 September 2011
Catchwords:		EVIDENCE – Proof of foreign law –tender of copies of foreign legislation –whether the mere tender of foreign legislation would enable the Court to draw certain inferences – whether appropriate to assume foreign law is the same as Australian law – whether late tender caused prejudice – tender refused
Cases cited:		Damberg v Damberg (2001) 52 NSWLR 49 applied Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 applied
Date of hearing:	29 September 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
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 AJ 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 JS 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 OF ORDER:	29 SEPTEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The tender by the applicant of the competition statutes of the United Kingdom, the European Union, the United States and New Zealand for the purpose of relying on them as a basis for the Court inferring the prospect of a reasonable apprehension in the minds of overseas thoroughbred stud book owners and overseas thoroughbred racing operators that, if the Australian rules were held unenforceable, their rules in terms similar to those found unenforceable in Australia might contravene those statutes, be refused.  

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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:	29 SEPTEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant sought to rely on an affidavit of Shima Roy sworn 14 September 2011, an affidavit of Edward Elcoat Poulton sworn 14 September 2011, and the associated affidavit of Kevin McMaster Rodgers sworn 28 September 2011.

2. In substance, by this tender, the applicant sought to rely on the three foreign statutes which were annexed or exhibited to those affidavits being described as the Competition Act 1998 (UK), the Treaty on European Union and the Treaty on the Functioning of the European Union and the Sherman Act (US). Also tendered on this application was a letter from Brock Partners dated 21 September 2011 and a copy of the Commerce Act 1986 (NZ).

3. The affidavit of Mr Rodgers shows the brief history of this aspect of the matter, which goes back to 14 July 2011, when I made an order in relation to what was then proposed: the applicant applied for leave to rely on a proposed report from Mr Fisse in relation to foreign law.  I made a ruling that permitted without more, an expert report to be made leaving to some other time the question of admissibility.  Part of the respondents’ complaint then was, as it is now, that this material was brought well out of time and the respondents were prejudiced in not being able to deal with it. 

4. The fundamental question is what use, if any, can the applicant make of the four foreign statutes or whether the court can act on the four foreign statutes in the manner sought by the applicant.  In other words, the question is whether the mere tender of this foreign legislation would enable the Court to draw the inference outlined in annexure KR6 to the affidavit of Mr Rodgers, that is, that the Court could reasonably infer the prospect of a reasonable apprehension in the minds of overseas regulators that, if the Australian rules were held unenforceable, their rules in terms similar to those found unenforceable in Australia might contravene those statutes. I read “the regulators” there referred to as the bodies in a similar position to the respondents, excluding the fifth respondent, in the proceedings before me.

5. The first difficulty, in my view, is that the tender does not show what the law is. That proposition derives from Nygh’s Conflict of Laws in Australia (8^th ed, LexisNexis, 2010)  (“Nygh”) at [17.18], with reference to the judgment of Lord Wright in Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 where his Lordship said at 298:

   “On what evidence of the foreign law a Court can act has often been discussed. The evidence it is clear must be that of qualified experts in the foreign law.  If the law is contained in a code or written form, the question is not as to the language of the written law but what the law is as shown by its exposition, interpretation and adjudication: . . .”

   That, in effect, is what is missing here and the mere tender of this material does not show what the law is in that sense. 

6. Secondly, in my view, it would be inappropriate for me to assume that the foreign law is the same as Australian law, that is, either in respect of s 45 of the Competition and Consumer Act 2010 (Cth) or the common law restraint of trade principles that are relied on by the applicant. In my view, it would be inappropriate to assume that the foreign law is the same as Australian law: see the principles in para 17.45 of Nygh, where the learned authors refer to the decision of the New South Wales Court of Appeal in Damberg v Damberg (2001) 52 NSWLR 492, where their Honours were concerned with the tax legislation of Germany.

7. Thirdly, whatever the operation of the presumption is that foreign law is the same as that of the forum or in whose favour that presumption operates, it is a default position and the respondents are entitled to test it, and this material has been brought on too late to allow the respondents to test it without significant prejudice. 

8. Fourthly, the material is insufficient for the task proposed for it in KR6.  On the basis of the mere language in the statutes, I could not and would not draw the inference there referred to, that is a reasonable apprehension in the minds of overseas regulators that their rules in terms similar to those in Australia might contravene those foreign statutes.

9. For those reasons, I reject the application by the applicant to rely on the four statutes for the stated purpose. 

10. For completeness, I note by way of background my order of 14 July 2011. What I then permitted as a way forward, that is, an expert report explaining what the foreign law was, in the relevant sense, is not the exercise that the affidavits and the tender of the statutes before me would perform.  The material is not of that kind. 

11. I also note that I have considered whether the Evidence and Procedure (New Zealand) Act 1994 (Cth) makes any difference.  In my view, it does not.  Section 40 states that proof is not required about the provisions of a New Zealand Act. In my view, that perhaps provides a way that is less formal than s 174 of the Evidence Act (Cth) of getting the statute into evidence and it does not affect or detract from the considerations of the substantive operation of the statutes to which I have referred. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:
Dated:       10 October 2011