FEDERAL COURT OF AUSTRALIA McHugh v Australian Jockey Club Limited (No 8) [2011] FCA 1137 Citation: McHugh v Australian Jockey Club Limited (No 8) [2011] FCA 1137 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: 4 October 2011 Date of hearing: 26, 29 and 30 September 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 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: 4 OCTOBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application to amend be dismissed. 2. Costs of the application be costs in the cause. 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: 4 OCTOBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By notice given on 20 September 2011, the applicant sought to amend his amended application. I mark as MFI 40 for the purposes of this amendment application the letter from Brock Partners dated 20 September 2011, which includes the proposed, or the then proposed, amended document. 2 The relevant parts of that letter are the second, third and fourth paragraphs, as follows: "The applicant's approach to the first second and third respondents in May 2009 raised issues concerning the enforceability of the relevant rules in so far as they prevented horses the product of artificial insemination from racing, and asked the ASB to consider establishing a separate register for such horses. The applicant has not sought in the proceedings to impugn the validity of Rule of Racing AR.15C. In order to avoid further distraction based on reference to other types of artificial breeding which, by virtue of the way in which the ASB Provisions are written, fall within those Provisions, the applicant has given further consideration to the terms and scope of the relief sought which have remained substantially unchanged since the proceedings were commenced on 21 October 2010 [scil. 2009]. Bearing in mind also that final relief should both be adapted to the circumstances and be no wider than necessary to remedy the wrong, we have attempted in the enclosed Further Amended Application to remove any legitimate objection on the part of the second, third and sixth respondents to the amplitude of the relief being sought based on international obligations which they may have assumed. The proposed amendments raise no new evidentiary issues; indeed they reduce the scope of the factual dispute the respondents have elected to agitate, as well as reducing the scope of the relief sought." 3 There is also a later version of the proposed amended application. I will mark as MFI 41 what I will call the 30 September 2011 application to amend, which was in the alternative to MFI 40 and which I consider in more detail later. 4 Importantly, in relation to either version, MFI 40 or MFI 41, the applicant does not apply to amend the statement of claim in its current form. From this it follows, as Senior Counsel for the applicant has expressly stated, that there is no new factual allegation. The effect of the MFI 40 proposed amendment was, as I have read from the letter which forms part of MFI 40, to make more specific and to narrow the scope of the relief sought in two respects: the first aspect of the proposed amendment relates to what is meant by artificial insemination, the second relates to a "third register" for horses bred by artificial insemination. 5 Senior Counsel for the applicant submitted, in relation to the document then propounded, MFI 40, that the occasion for the application to amend the originating application was the failure or unwillingness on the part of the respondents to engage with aspects of the case actually brought by the applicant, rather than reflecting any change in that case or any proposed change in that case. It was submitted that these were matters which had been repeatedly pointed out over the preceding three weeks, and the respondents could have no misapprehensions about what the case was that the applicant was bringing. 6 On 30 September 2011 an alternative proposed amended application was advanced. This was on the basis that I provisionally indicated difficulties with the first draft version of the amendment. I was then asked to consider the second version of the proposed amendment, that is MFI 41. 7 The difference between the two versions is that the earlier expressly referred to the "third register" as well as to artificial insemination, while the later version referred expressly only to the artificial insemination question. 8 The respondents opposed the applicant's application in respect to both the earlier version and in respect of the 30 September 2011 version. 9 On 30 September 2011, I ruled against the MFI 40 version on the basis that: (i) although there was no new factual allegation; and (ii) although further and significantly the applicant stated that he did not assert any obligation on the part of the respondents to provide or recognise a "third register", and (iii) although it was not put by the applicant that the failure to have the "third register" involved conduct contrary to law by the respondents. nevertheless the language of the MFI 40 version showed that the relief sought was inconsistent with that position. It was inconsistent because it sought declarations which, in effect, required the relevant respondents to establish such a register. Further, I considered the artificial insemination aspect was intertwined, at least in a drafting sense, with the separate register point. I said there was an inconsistency between not seeking to impugn the absence of a third register and the form of the proposed relief. I also said it did not seem to be possible or useful to try and disentangle the artificial insemination point from the "third register" point. 10 I turn then to MFI 41 which deals expressly only with the artificial insemination point. 11 In this respect, I was taken to the definition of "ASB provisions" in paragraph 26 of the Further Amended Statement of Claim. I was also taken to the relevant Rules from which it appears, with reference to rules (ix) and (xi), artificial insemination is only one form of artificial breeding to which the Rules refer. 12 It seems to be accepted on behalf of the applicant, and here I refer to the opening on 5 September 2011 at transcript pages 9 and 12, that the rules prevent both artificial insemination and embryo transfer. There also seems to be a separate rule, 15C, which is not challenged and which is directed to anti-cloning. For present purposes, I do not distinguish between the ASB rules and the rules of racing. 13 Equally it seems clear to me that Senior Counsel for the first, second and sixth respondents in his short opening referred to wider types of artificial breeding than artificial insemination. 14 I do not see that the amendment would prevent the respondents from cross-examining or adducing evidence as to all forms of artificial breeding. In that respect, it seems to me that the respondents are not prevented from making what forensic use they can out of other forms of artificial breeding. 15 Equally, in my view, the proposed amendment in MFI 41 would not narrow any question of construction or avert any argument on behalf of the respondents about severability or rewriting terms of arrangements. 16 The amendment, as I understand it, is not put as being necessary to the applicant's case, and to the extent it is put as being convenient it would not in my view achieve the desired purpose. 17 The respondents oppose the application, in part on the basis that the MFI 41 version involves as an implied premise the "third register" point which has been disavowed by the applicant. 18 The point is encapsulated in submissions on behalf of the first, second and sixth respondents, although the submission may travel beyond MFI 40 or 41. The effect of the submission was that the fact that the respondents were not required to have a "third register" meant that failure to include AI horses in the main register could not be any restraint on the applicant. 19 Further, it was submitted, once it was recognized the respondents do not have to establish or maintain the proposed "third register", then the failure to have either the main register or the "third register" covering horses bred by artificial insemination could not be a restraint or contrary to s 45 of the Competition and Consumer Act 2010 (Cth). The applicant's response was to say that the respondents were attempting to conflate positive action on the one hand with relief on the other. Senior counsel for the applicant emphasised that MFI 40 or 41 was an application to amend only the originating application the sole relevance of which was to spell out the relief. There was no application on foot to amend the further amended statement of claim. 20 Lastly, the applicant does not contend for any prejudice to him, beyond the matters I refer to above, if the proceedings were to continue on the basis of the amended application unaltered by either MFI 40, which I have ruled against, or the MFI 41 version. Indeed, senior counsel for the applicant submits that the applicant's position has not deviated from that put in opening, that is, that the present rules are, on the grounds set out in the statement of claim, contrary to the statute and contrary to the common law rule. The applicant does not accept the alleged disastrous consequences said to arise from putting horses bred by artificial insemination in an undifferentiated way into the existing stud book or books but the "third register" commends itself to the applicant as being the course that would both conform to the legal requirements and accommodate the respondents' concerns. 21 Because the application in MFI 40 does not involve a necessary amendment and there is no prejudice to the applicant from not permitting the amendment and because the respondents oppose the amendment on the at least arguable basis that it impliedly contains the "third register" point, I reject the application to amend the amended application set out in MFI 41. 22 The costs of the application should be costs in the cause. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 11 October 2011