Supreme Court New South Wales

• Medium Neutral Citation: Day v Harness Racing New South Wales [2014] NSWSC 1024
• Hearing dates: 24-25 July 2014
• Decision date: 25 July 2014
• Jurisdiction: Common Law
• Before: Hamill J (as Duty Judge)

Decision

See orders.

• Catchwords: CIVIL LAW - judicial review - amended points of claim - excessive material placed before duty judge - ridiculous estimates as to length of case - President Lincoln - "surprise rule" - application to points of claim - relevance in matters of construction
• Legislation Cited: Harness Racing Act 2009 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Category: Procedural and other rulings
• Parties: Neil Anthony Day (First Plaintiff); Dean Albert McDowell (Second Plaintiff); Harness Racing New South Wales (First Defendant); Reid Sanders (Second Defendant)
• Representation: Counsel: D Smallbone (First & Second Plaintiffs); A S Bell SC & A T S Dawson (First & Second Defendants); Solicitors: Prime Lawyers (First & Second Plaintiffs); Cockburn & Co (First & Second Defendants)
• File Number(s): 2014/140312
• Publication restriction: Nil

ex tempore Judgment

1 HAMILL J: The plaintiffs are respectively a professional harness race trainer and a professional harness race driver. The first defendant is the authority which controls harness racing in New South Wales under the provisions of the Harness Racing Act 2009 (NSW) (the Act). The second defendant is the chief steward engaged by the first defendant.

2 Pursuant to the provisions of its legislation, the first defendant purported to make rules governing the conduct of harness racing in New South Wales. Under s 22 of its Act, it unquestionably has the authority, if not the duty, to do that.

3 On 30 April 2014, actions were taken by the defendants to suspend the licences of the first and second plaintiffs. The action was based around an alleged breach of the rules which had been promulgated under the enabling Act.

4 By summons filed in the Court on 9 May 2014, the first and second defendants seek some fifteen orders which in their totality are calculated to quash the decision by which the plaintiffs are suspended, and have the rules promulgated by the defendant quashed or otherwise declared to be invalid, ultra vires or unable to be enforced.

5 An application was made at the time of filing of the summons seeking that the case receive some priority based on its importance and that it be heard urgently. The matter came before me while I was sitting in the duty list on 14 May 2014. I made a number of orders by consent in relation to what might be described as the case management of the matter, and listed the case for a three-day hearing commencing on 13 August 2014.

6 In accordance with those orders, the plaintiffs filed points of claim on 19 May 2014. The points of claim is an impressive document. It contains some 191 numbered paragraphs and encompasses, as far as I can tell, something like nine grounds of appeal.

7 The first through to third grounds of appeal assert that the rules are ultra vires the statute under which they purport to be made. The fourth ground asserts that the rules are contrary to public policy. The fifth ground is another ground asserting ultra vires. The seventh ground asserts the rules create a restraint of trade contrary to the law, and in any event, a restraint of trade which is unreasonable.

8 I need not articulate the substance of the balance of the grounds of appeal. It is the sixth ground of appeal which is brought into focus in the context of the application which is now before me.

9 The sixth ground of appeal in general terms is an assertion that the rules are void or ultra vires because they are irrational and so unreasonable that no reasonable rule maker would have made them. Further, the impact of the rule or rules under attack are said to be so disproportionate to any legitimate object of such rules that it or they cannot stand.

10 The defendants filed points of defence in accordance with the consent orders to which I have earlier referred. Those points of defence were filed on 28 May 2014 which it would seem was two days after the timetable required them to be served. Meanwhile, the plaintiffs served notices to produce, and there have been at least two occasions on which the defendant has produced documents in accordance with those notices.

11 The orders made by consent on 14 May also encompassed orders for the filing of evidence by the parties on 18 June 2014 and 9 July 2014 respectively. I am told that the plaintiff was about a week late in serving its evidence, but that by arrangement the parties agreed to an amendment to the timetable to allow the defendant a further week to file its evidence. I am also informed that the defendant has not complied with the revised timetable for service of evidence, and is now a little over a week late in accordance with the agreed amended timetable.

12 The short minutes of order of 14 May also encompass the filing of written submissions by the plaintiff on 1 August 2014 and written submissions by the defendant on 8 August 2014. That brings me to the matter currently before the Court.

13 By notice of motion filed 21 July 2014, the plaintiff seeks some seven orders. Those orders are as follows:

"1. An order that the plaintiffs have leave to file amended points of claim;

2. An order that, in para seven of the points of defence, the words "but otherwise do not admit the paragraphs" be struck out as vexatious or as disclosing no reasonable defence or as an abuse of process;

3. An order that paras 8A, B, H, I, N, O, P, R and T of the points of defence be struck out as vexatious or as disclosing no reasonable defence or as an abuse of process;

4.An order that in paragraph 8M of the points of defence the words "but otherwise do not admit the paragraphs" be struck out as vexatious or as disclosing no reasonable defence or as an abuse of process;

5. An order that the defendants be directed to admit or deny para seven, ten to 76, 82, 83, 89 to 97, 102 to 106, 108 to 118, 120 to 161, 163 to 185, 189 and 191 of the points of claim, and that any paragraph or portion thereof that is not traversed by the points of defence or by amended points of defence filed within seven days after the making of these orders shall stand admitted by the defendants for the purpose of these proceedings;

6. Costs; and

7. Such further or other orders as the court sees fits."

14 The plaintiff relied on two affidavits of their solicitor Peter Murphy dated respectively 25 June 2014 and 21 July 2014. Those affidavits were read without objection.

15 The plaintiff also relied upon an affidavit of Jake Stockton sworn 23 July 2014. That document was objected to as being irrelevant for the purposes of the notice of motion, if not irrelevant altogether.

16 The plaintiff contended that the affidavit of Jake Stockton was relevant to an anticipated argument by the defendant that the hearing date should be vacated as a result of the amendments sought by the plaintiff's notice of motion. I admitted the affidavit of Mr Stockton provisionally and moved on to hear the substance of the argument.

17 Having now considered the matter, and read the affidavit, I am of the view that it cannot rationally affect the issues before me. It is irrelevant, and I reject it.

18 For its part, the defendant relies on the affidavits of its solicitor Hamish Cockburn, each of which is dated 23 July 2014.

19 Including annexures, the material placed before me on this notice of motion comprised in excess of 450 pages and perhaps in excess of 500 pages when one takes into account the initiating process, points of claim, and points of defence as originally filed.

20 In those circumstances, the plaintiff's estimate that the hearing of the notice of motion would take "forty minutes" was bordering on ridiculous. In fact, the matter took from around midday yesterday until well after 4pm, noting that as duty judge, I needed to adjourn on more than one occasion to deal with urgent matters in chambers.

21 When I enquired when I was expected to read the material that had been placed before me, I was told that I did not need to read it, but that I would be taken through it. I make the observation that if I did not need to read the material, I find it difficult to understand why it is necessary in a busy duty list that a judge be burdened with such an avalanche of material. Perhaps it is like the preacher of whom President Lincoln spoke when he remarked that he would have given a shorter sermon but he didn't have enough time to prepare it.

22 In any event, these are not relevant considerations, but they are matters that might be taken into account by practitioners who bring urgent applications before the duty judge. As it was, I was taken to a very small amount of the material that was in fact placed before me.

23 The majority of the argument on the notice of motion concerned the controversy over whether the plaintiff should be permitted to amend its points of claim. The plaintiff contends that the assertions made in the new points of claim were implicitly encompassed within the 191 paragraphs of its original points of claim. There was no compelling answer to the rhetorical question which I posed in argument along the lines of why it would be necessary to amend at all if that were the case.

24 The defendant for its part contends that the proposed amendments in paragraphs 93A, 93B and 100A, are essentially, if not entirely, new allegations, and which on their face constitute a fundamental attack on the drug testing regime employed by the defendant in order to ensure that harness racing in New South Wales is fair and free of performance enhancing substances.

25 The defendant goes on to argue that, if such a wholesale attack on the urine testing regime is to be made, it should have formed part of the original points of claim. Further, the defendant submits that it is in no position to meet such an attack in the time available between now and the hearing date on 13 August.

26 Mr Bell of Senior Counsel and Mr Dawson, who appear for the defendant, conceded that, had the paragraphs now sought to be incorporated into the points of claim formed part of the original points of claim, they could not have contended that they should be struck out. So it was that they came to court with alternative positions.

27 The first was that the plaintiff should not be permitted to amend, but the second was that if such an amendment was allowed, there should be orders as to costs and the hearing date should be vacated.

28 The defendants also complained that the proposed amended points of claim lack particulars. I directed the plaintiff yesterday to file particulars prior to 10 o'clock this morning, and that was done. There has been provided to me this morning a document whereby proposed amended grounds 93A, 93B and 100A are particularised.

29 I was also provided with an email thread in which the parties engaged in debate as to the sufficiency of those particulars, and I was also enlightened by arguments by counsel this morning for around half an hour as to the sufficiency of those particulars. Where necessary, the amended particulars and email thread can be incorporated into this judgment.

30 I note that, in the course of argument, the plaintiff agreed that the following additional particular to ground 100A correctly encapsulated its argument, and for its part, the defendant conceded that, if such particulars were incorporated into the amended grounds, it would understand the case it was required to meet:

"(B) The first defendant failed to obtain and provide to trainers an administration study to establish what level and conditions administration of premixed feed and supplements will contravene the 200 microgram per litre of urine threshold."

31 The plaintiff took me to parts of the points of claim where the kinds of issues raised by the amendments are, it is argued, inferentially touched upon. It also took me to an expert report in which it was said that the matters raised by the amendments were inferentially raised. The defendant, on the other hand, contended that the grounds were a distinct change in the plaintiff's case.

32 I am of the view that there is some merit in each of the contentions made. There is no question in my mind that the material in the points of claim and in the expert evidence already served by the plaintiff does raise, albeit in a somewhat oblique way, the question of the efficacy the urine testing, at least as I say obliquely or inferentially. In particular, the expert evidence raised questions about whether urine testing is capable of distinguishing between the presence of cobalt as a legitimate and lawful use of feed supplements, as against the presence of that substance as a result of the illegal and unfair use of what might be described as "doping". On the other hand, the bald assertions made in the proposed amendments do, in my opinion, change the case that the defendant thought that it was required to meet.

33 One thing upon which the parties agree is that the case raises fundamental and important questions concerning the conduct of harness racing in New South Wales. The outcome of the case is critical to the first defendant which is charged with ensuring that harness racing in New South Wales is played on a level playing field, and has the responsibility of weeding out cheats. Equally, the plaintiffs' individual rights to conduct their businesses might be affected to a very marked degree if the allegations that they make in respect of the rules turn out to have some merit.

34 The public, or at least that part of the public which spends its money betting on the trots, is also deeply interested and affected by the outcome of a case such as this. For that reason alone, I have reached the conclusion that the plaintiff should be permitted to amend in order to ventilate the important questions that are raised by the impugned paragraphs of its amended points of claim.

35 Accordingly, I propose to make an order permitting it to do so, but subject to its filing what might be called a further amended points of claim incorporating the particulars that have been filed or handed up to me this morning and further fine tuned in the course of argument.

36 Orders two through to five of the notice of motion seek orders that the defendant conduct its case or its defence in a particular way. It is contended that the defendant should be forced either to admit or to deny certain of the 191 paragraphs in the plaintiff's statement of claim. It is unnecessary to go through the material in detail, other than to note that the defendant has admitted and/or denied some of the paragraphs in the plaintiff's points of claim, but in a very large majority of instances has chosen simply not to admit the contents of those points of claim.

37 The plaintiff seeks to place reliance on what it describes as "the surprise rule" and pointed me to part 14, rule 14, of the Uniform Civil Procedure Rules 2005 (NSW). The defendant contends that that rule has no application at all in a case of this kind, and that because many of the matters raise the construction of the rules and relevant enabling legislation is what truly arises in the case, that part of the Uniform Civil Procedure Rules 2005 (NSW) ought not to be imported into the circumstances of this case.

38 Whether or not the rules have any application to a case of this kind is not a matter with which I need to concern myself, as in my conclusion the defendant is entitled, contrary to the plaintiff's submission, simply to put the plaintiff to proof in relation to the matters wherein it has simply said "not admitted" in respect of the assertions raised by the plaintiff's points of claim.

39 I am not suggesting that this is a forensically sensible approach. It may be that there is merit in the plaintiff's submission that the defendant should in many cases be in a position either to admit or to deny its factual assertions, but in my opinion that is a forensic choice for the defendant and its highly experienced legal team.

40 If the approach taken by the defendant is considered by the trial judge to have resulted in a waste of court time or additional expense to the plaintiff, that circumstance can be taken into account by the trial judge in making orders as to the costs of the proceedings. For example, whether costs should be denied to the defendant should it be successful, whether costs should be on an indemnity basis should it be unsuccessful, and even in an extreme case where the costs should be paid to a degree by the legal representatives responsible for drafting the process.

41 What I do not intend to do, particularly in the context of a busy duty list, is to attempt to unravel these expansive and meandering points of claim to determine whether or not the defendant should be forced to make specific admissions in advance of the hearing.

42 One of the complaints that the plaintiff makes is that it does not know from the defendant's points of defence just what construction of the rules and enabling legislation it will contend for at the hearing. There is a ready answer to that complaint, and it lies in the fact that the parties are to exchange written submissions in advance of the hearing. Presumably the plaintiff will become aware with clarity just what position the defendant takes once it reads those submissions.

43 And I also note, as I have just implicitly said, that the defendant in drafting its points of defence is responding to a document which might be thought itself to lack precision. However, I make no final conclusion as to that matter because in the course of a busy duty list it is simply impossible for me to become completely seized of the issues. It may be that the points of claim are entirely appropriate to the circumstance or circumstances of the case as it unfolds before the trial judge.

44 The next question with which I must be concerned is what to do about the fact that the trial date is just three weeks away, and the plaintiff's case has to a greater or lesser extent, depending on the view that one takes, changed. Mr Cockburn in his affidavit has raised the legitimate concern that the estimate of three days is a distinct underestimate. In particular, it seems that the plaintiff has in mind to call some seventeen witnesses in addition to two expert witnesses, and that the defendant will no doubt respond with a certain number of lay witnesses and a certain number of expert witnesses.

45 In my opinion, the estimate of three days in that circumstance makes about as much sense as the estimate of forty minutes with which I was provided for the notice of motion which took in excess of two to three hours and closer to four to five hours if one factors in the reading that I have done overnight.

46 I am less persuaded by the argument that the defendant has insufficient time to prepare itself for the changes in the defendant's case. The expert evidence served by the plaintiff raises matters concerning the drug testing regime, albeit that there is no expert evidence that asserts baldly, as does the amended point of claim 93A, that "urine testing is not a reliable indicator for the purpose referred to in paragraph 93".

47 The defendant must have by now or should have by now engaged experts to deal with the kinds of arguments made by the plaintiff both in its original points of claim and in the expert evidence it has served. I make those observations bearing in mind and accepting the affidavit of Mr Cockburn in which he provides opinions somewhat to the contrary of the propositions that I have just enunciated. But I do not accept the argument that the defendant is incapable of preparing the case in the time available.

48 Nevertheless, the parties have now reached agreement, and consultation with the registrar and list clerk means that the trial date will need to be vacated as a matter of practicality, and based around the estimate which is clearly greater than three days.

49 The estimate of the parties is yet another bone of contention between them. Mr Smallbone, who appears for the plaintiffs, yesterday when asked whether the three day estimate was sufficient, indicated that it would be "tight", and under force of argument conceded that the estimate was more likely to be one of five days, possibly seven days. The defendant says that the case might now take two weeks.

50 As large and potentially unruly as the case appears to be, and taking into account the fact that very little seems to be capable of agreement between these litigants, in my opinion, with proper management and sensible co-operation between the parties, the issues should narrow as the trial date approaches and once the written submissions of the parties have been exchanged.

51 What I propose to do is to list the matter with an estimate of five days.

52 The orders that I make are these:

(1) The plaintiff has leave to amend its points of claim in accordance with the document annexed to the affidavit of its solicitor;

(2) The amended points of claim are to be limited to the particulars filed in court today and further articulated and agreed upon in argument;

(3) The plaintiff is to file amended points of claim incorporating the particulars referred to in order 2 above on or before 1 August 2014;

(4) Otherwise the notice of motion is dismissed, and I decline to make orders in accordance with orders 2, 3, 4, 5, and 6 of the notice of motion;

(5) The hearing dates of 13 to 15 August is vacated;

(6) The plaintiff is not to file or be permitted to rely on any further expert evidence beyond that already served on the defendant other than evidence legitimately replying or responding to evidence served by the defendants;

(7) The defendant is to serve its evidence including expert evidence on or before 15 August 2014;

(8) The plaintiff is to serve any evidence in reply by 29 August 2014;

(9) The plaintiff is to file and serve written submissions on or before 12 September 2014;

(10) 10.The defendant is to file and serve written submissions on or before 19 September 2014;

(11) The matter is listed for hearing on 29 September with an estimate of five days;

(12) The plaintiff is to pay the costs of and incidental to the notice of motion;

(13) The liability for the costs thrown away by the vacation of the hearing date is reserved and to be determined by the trial judge.

53 I recommend that a trial judge be appointed to the matter at an early time, and that the matter be listed before the trial judge in advance of the hearing for any necessary further case management. And I direct the parties to approach the registrar on or before 1 September 2014 to ascertain whether or not a trial judge has or can be appointed.

54 I urge the parties to consider the benefits of refining the issues in this case and reaching agreement where possible.

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Decision last updated: 31 July 2014