Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz [No 2]

[2024] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz [No 2] [2024] QCA 123

PARTIES:

In Appeal No 769 of 2023:

QUEENSLAND RACING INTEGRITY COMMISSION
(appellant)
v
ALLAN PAUL ENDRESZ
(first respondent)
EZYBONDS (PACIFIC)
(second respondent)
JEFFREY SIMPSON
(third respondent)
ROBYN SIMPSON
(fourth respondent)
RACING QUEENSLAND BOARD
(fifth respondent)

In Appeal No 776 of 2023:

RACING QUEENSLAND BOARD
(appellant)
v
ALLAN PAUL ENDRESZ
(first respondent)
EZYBONDS (PACIFIC)
(second respondent)
JEFFREY SIMPSON
(third respondent)
ROBYN SIMPSON
(fourth respondent)
QUEENSLAND RACING INTEGRITY COMMISSION
(fifth respondent)

FILE NO/S:

Appeal No 769 of 2023
Appeal No 776 of 2023
SC No 6122 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane – [2022] QSC 262 (Burns J)

DELIVERED ON:

21 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison JA and Fraser AJA and Williams J

ORDERS:

In each of appeals 769 of 2023 and 776 of 2023:

1.   The appellant pay the first, second, third and fourth respondents’ costs of and incidental to the appeal.

2.   The Queensland Racing Integrity Commission pay the first, second, third and fourth respondents’ costs of and incidental to the application by the Queensland Racing Integrity Commission in the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appellants were unsuccessful on appeal – where the parties provided further submissions on the issue of costs – where the owners submit the appellants should pay costs – where the appellants submit they should pay only 60 per cent of the owners’ costs – whether there are special or exceptional circumstances which warrant depriving a successful party of its costs

Uniform Civil Procedure Rules 1999 (Qld), r 681

Courtney v Chalfen[2021] QCA 25, cited
Orr v Director of Proceedings on Behalf of the Health Ombudsman[No 2][2024] QCA 106, cited
Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz[2024] QCA 76, cited
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2)[2021] QCA 39, cited
Villan v The Body Corporate for The Winston (Cairns) Community Title Scheme 37263 [No 2][2024] QCA 54, cited

COUNSEL:

O P Holdenson KC, with P H Nevard, for the appellant in Appeal No 769 of 2023 and for the fifth respondent in Appeal No 776 of 2023
R J Anderson KC for the appellant in Appeal No 776 of 2023 and for the fifth respondent in Appeal No 769 of 2023
P J Dunning KC, with K A McGree, for the first to fourth respondents in Appeal No 769 of 2023 & Appeal No 776 of 2023

SOLICITORS:

Minter Ellison for the appellant in Appeal No 769 of 2023 and for the fifth respondent in Appeal No 776 of 2023
Clayton Utz for the appellant in Appeal No 776 of 2023 and for the fifth respondent in Appeal No 769 of 2023
Gadens for the first to fourth respondents in Appeal No 769 of 2023 & Appeal No 776 of 2023

1. THE COURT:  These reasons should be read together with the reasons for the Court’s judgment dismissing appeals by the Queensland Racing Integrity Commission and the Racing Queensland Board against a declaration that the disqualification by the Commission of a horse owned by the respondents from its first placing in a race was void and of no effect: Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz [2024] QCA 76.

2. The parties have now made submissions about costs.  The owners submit that the Commission and Racing Queensland should be ordered to pay the owners’ costs.  The Commission and Racing Queensland submit that they should be ordered to pay 60 per cent of the owners’ costs.

3. Costs are in the discretion of the Court but follow the event unless the Court orders otherwise: Uniform Civil Procedure Rules1999, rule 681. Racing Queensland argues that it succeeded on appeal upon a distinct and separable, multi-faceted question, namely, the issue whether the Australian Rules of Racing conferred upon the owners a right to appeal against the disqualification. The Commission’s argument is to similar effect, but it describes what Racing Queensland characterised as a multi-faceted question as separate issues corresponding with separate grounds of the Commission’s appeal. The effect of both appellants’ arguments is that, instead of awarding costs according to the result of the proceedings, costs should be awarded according to the results of different issues in the proceedings. If that approach were adopted, a consequential question would arise about the appropriate proportion of the owners’ costs to be awarded to them.

4. Whilst the discretion to order costs “must be exercised judicially and consistently with the purpose of the power…costs will generally follow the event unless there are special or exceptional circumstances which warrant depriving a successful party of its costs”: Orr v Director of Proceedings on Behalf of the Health Ombudsman[No 2] [2024] QCA 106 at [2], citing Courtney v Chalfen [2021] QCA 25, Speets Investment Pty Ltd v Bencol Pty Ltd(No 2) [2021] QCA 39 and Villan v The Body Corporate for The Winston (Cairns) Community Titles Scheme 37263 [No 2] [2024] QCA 54. Racing Queensland and the Commission contend that this is an appropriate case for the award of costs upon separate issues. They submit that the separable issue or issues upon which they succeeded are of general importance in the racing industry and of public interest. They submit that if the owners had not contested their successful arguments, the issues would have been more confined. The Commission also submits that it has not been motivated by financial gain.

5. Accepting those submissions for present purposes, they must be assessed together with other, relevant circumstances:

   (a)To the extent that it was in the interests of the racing industry as a whole to have an authoritative resolution of the question whether the Australian Rules of Racing conferred upon the owners of the disqualified horse a right to appeal against the disqualification, that factor would not appear to favour an order that that the owners pay the costs in relation to that question incurred by the Commission and Racing Queensland, who regulate racing in Queensland.

   (b)It was the conduct of the Commission’s stewards in keeping the owners “in the dark about an imminent adjudication by the stewards…in which the owners had a substantial interest” ([2024] QCA 76 at [71]) which constituted the denial of natural justice to the owners.

   (c)The owners were left with no realistic alternative but to bring the proceedings in the Trial Division, and to contest the appeals, to vindicate their right to natural justice as a condition of a valid disqualification.

   (d)The owners’ arguments in the Trial Division upon the question whether there was a right to appeal from the disqualification were not unreasonable.  The primary judge accepted those arguments and it could not be said to have been unreasonable for the owners to seek to uphold that part of the primary judge’s analysis in the appeals.

   (e)Although the Commission and Racing Queensland’s arguments upon that question were ultimately accepted, the owners remained wholly successful in establishing their claimed right to natural justice.  In the context of the appeals, the success of the Commission and Racing Queensland upon that question was a Pyrrhic victory.

6. In all of the circumstances, it is not appropriate to award costs according to the results upon separable issues or otherwise to deprive the owners of any portion of their costs.  The appropriate orders in each of appeals 769 of 2023 and 776 of 2023 are that:

   (a)The appellant pay the first, second, third and fourth respondents’ costs of and incidental to the appeal.

   (b)The Queensland Racing Integrity Commission pay the first, second, third and fourth respondents’ costs of and incidental to the application by the Queensland Racing Integrity Commission in the appeal.