AUSTRALIAN RACING DRIVERS CLUB LTD v GRICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and BEAZLEY JJA 12 August 1998, 12 August 1998 [1998] NSWCA 25 CONTRACTS — construction and interpretation — existence of contract — factual matrix — implied terms The respondent, a professional racing car driver, was a participant in the 1984 Alpha Romeo racing competition. The trial Judge found that this competition was run by Alpha Romeo as the promoter and the appellant as the overall organiser. The respondent won the competition after a successful appeal from the rejection of his protest at the conclusion of the final race in the series. However in the time between the protest and the appeal the prize for the series (a car) had been delivered to the provisional winner. The Judge found a contract between the appellant and the respondent which the appellant had breached by failing to deliver the prize to him. The appellant challenged certain findings of fact by the trial Judge and his conclusions that the appellant had overall responsibility for the series and that there was an implied term binding on the appellant relating to the distribution of the prize for the series. HELD: dismissing the appeal: (1) Because all the races in the series had been held at the appellant's track, the trial Judge was correct in finding that the appellant was bound by the contract to determine the result of the series. (2) The express rule as to the awarding of prizes for the individual races in the series governed, by construction or implication, the awarding of the prize for the series. (3) The trial Judge's discretion in making a Bullock order had not miscarried. Handley JA This is an appeal by the Australian Racing Drivers Club Ltd from a judgment of Taylor DCJ in which he found that a contract existed between the plaintiff, Mr Grice, a professional racing car driver and the Club. The contract as found related to the 1984 Alpha Romeo racing competition which ultimately Mr Grice won following a successful appeal from the rejection of his protest at the conclusion of the final race in the series on 4 August 1984. The Judge found that the series was run by Alpha Romeo as the promoter and the Club as the overall organiser. The prize for the overall winner was a new Alpha Romeo car. Mr Grice, although the overall winner, did not receive this prize and the Judge found that the Club was in breach of its contract and he awarded damages for that breach. The Judge's conclusions were summarised in the following passage: "Looking at the correspondence between those interested, the matrix of contractual relationships, the conduct of the parties, particularly their discrete functions as overall organiser, sponsor, entrants, drivers and promoter, the court has concluded there was a binding contract between the plaintiff and ARDC whereby ARDC is to (a) Determine the results of races and the series overall in accordance with the national competition rules and (b) Supervise and be responsible for the distribution of all prizes for the series in accordance with the national competition rules". 2 UNREPORTED JUDGMENTS Mr Burn, for the appellant, in a careful argument, challenged some of the findings of fact of the trial Judge, particularly his finding that Mr Stibbard, the General Manager of the Club, became aware a week or so after the race of Mr Grice's appeal to CAMS on 5 August from the dismissal of his protest. The Court did not hear Mr Burn on this submission at length because he acknowledged that it was not relevant to his argument on the questions of contract and breach. The Judge also found that on 14 August Alpha Romeo delivered the first prize, the new Alpha Romeo car, to Mr Longhurst who was then the provisional winner of the series. He ceased to be the winner when Mr Grice's appeal to CAMS was allowed on 31 August. Mr Burn challenged this finding of fact but in my judgment it was correct. It was amply supported by the Alpha Romeo documents, exhibit D2(4), which establish that a particular Alpha Romeo vehicle was delivered by the company on 14 August then sold to a dealer at Petersham and later on sold by the dealer to a member of the public. These computer printouts contained handwritten annotations which indicated that the vehicle referred to was the first prize in this competition, and as such was delivered by the appellant to Mr Longhurst on 14 August. The documents containing those annotations were admitted into evidence without objection so that those annotations became part of the tender and went into evidence. This documentary material, together with the evidence of Mr Rotondo, amply supported the Judge's finding and this Court cannot interfere with it. Mr Burn did not challenge the Judge's finding that there was a contract between Mr Grice and the Club. However he did challenge the term found by the Judge which obliged the Club to determine the result of the overall series in accordance with the national competition rules of CAMS and be responsible for the distribution of the first prize. When the series was announced, it included races at Sandown Park and Geelong which are not under the control of the appellant. However in the events that happened, all the races in the series were conducted at Amaroo Park on the appellant's racetrack. Mr Burn's submission that the Judge was not entitled to find a contract under which the appellant was bound to determine the result of the series was based on the existence of races at racetracks controlled by other organisations. The point ran into difficulties when it became apparent that all the races took place at the appellant's track. I would not understand his Honour to have found that the contract bound the appellant to be responsible for the distribution of the prize for the series, regardless of the racetrack where that event was determined. However in the events that happened, it was responsible for the conduct of the race which determined the result of the series and it was responsible for the conduct of all races in the series. In these circumstances the Judge was entitled, in effect, to find that if any club was responsible the appellant was. Mr Burn's next point was that the contractual matrix found by the judge did not contain any provision which allocated responsibility for the distribution of the prize for the series. The material constituting the matrix included the national competition rules of CAMS and entry forms for the last race in the series which it may be inferred were in the same form for the other races. It also included correspondence between Alpha Romeo and the drivers. The latter included an express provision which directly supported the Judge's finding. The company's letter to the plaintiff of 1 February 1984 contained the statement: URJ AUSTRALIAN RACING DRIVERS CLUB LTD v GRICE (Beazley JA) 3 "Fees and prizes will be paid by ARDC after the completion of each event and the amount will not be disclosed to the public or the press". Mr Burn accepts that r213 of the national competition rules of CAMS applied to every race in the series and provided a regime for the distribution of the prizes for each such race. However he submitted that this rule did not apply to the distribution of the prize for the series and that there was no rule which governed that matter. In my view the Court should find, by a process of construction or ad hoc implication, that r213 applied, with such modifications as were necessary, to the distribution of the prize for the overall series. The parties can hardly have intended that there should be no contractual regime for the distribution of the most important prize of all, yet Mr Burn's submission was that 1213 applied to every race in the series but not to the series as a whole. R213 was incorporated by the entry forms for the last race in the series which would determine the result of the series. The entry forms submitted to the appellant contained an agreement by each of the competitors to abide by the national competition rules, including r213. In my judgment, as a matter of construction, this made r213 applicable to the allocation of the overall prize. If there is any difficulty with the reasoning leading to that conclusion, I would take it that it was so obvious that it went without saying that the r213 procedure should apply to the series as a whole, that it was not necessary to spell this out, and the officious bystander test was clearly met. The substantive appeal by the Club therefore fails on all grounds. But for my respect for Mr Burn's argument, I would have been content to adopt the reasons of the trial Judge as my own, as in my judgment they were correct. Mr Burn also challenged the Bullock order. The making of such an order within legal limits is within the discretion of a trial Judge. It was not suggested that his Honour misdirected himself as to the principles which govern the making of a Bullock order, rather the submission was that his Honour had failed to correctly exercise his discretion within limits allowed by legal principle. The Court does not lightly interfere with discretionary decisions of trial Judges as to matters of practice and procedure or costs. There being, as I said, no challenge to the decision in point of legal principle, I see no reason why this Court should interfere with the exercise of the Judge's discretion. I would propose therefore that the appeal be dismissed with costs. I would wish to hear argument as to what order for costs should be made with respect to the cross-appeals. Meagher JA I agree with my brother Handley on the main points. On the question of costs in my view the appellant should pay the costs of the appeal and also all costs of the cross appeal. I would simply draw attention to two aspects of the case. One is that while Mr Grice was the only respondent to the appeal, Alpha Romeo and Mr Longhurst should also have been made respondents because they are involved in some of the grounds of appeal. The second thing which is fairly obvious but still ought to be stated is that the plaintiff, Mr Grice, ended a fairly strenuous piece of litigation by receiving a very modest verdict of approximately $11,700. Unless all the costs of this appeal are borne by the appellant, there will be little, if anything, to pay him that modest amount. Beazley JA I agree with Justice Handley in relation to the success of the appeal. 4 UNREPORTED JUDGMENTS I would only add one matter in relation to the application of 1213. I initially had thought there was some substance in Mr Burn's submission that r213 did not apply. However, if one reads the rules in their entirety, one sees that they actually relate to competitions and not to meetings as such. I think that factor reinforces the reasons to which Justice Handley has come in respect of the application of the rules. I would add further that even if the rule does not apply, it would make no difference to my conclusion. I agree that the appeal should be dismissed. I agree with his Honour's comments in relation to the making of the bullock order and consider that should remain in place. In relation to the cross appeal, the fate of the appeal means that that does not need to proceed and the appropriate order will be made in respect of that. In relation to the costs of that, I agree with the presiding judge that the appellant should bear the costs of a cross appeal. I for myself see no reason why a bullock or bullock type order ought not be made in respect of it for the same reasons as the trial judge considered the bullock order should be made below. I would further place emphasis upon paraS and para7 of the amended notice of appeal which very much drew the cross respondents other than the appellant in the appeal into the principal argument on the appeal, and they had a need to be here. It is probable that they ought to have been joined in the appeal, having regard to the findings challenged in paraS and para7. In my view, the appellant should be responsible for the costs of the appeal and the costs of the cross appeal of all parties. Meagher JA The order of the Court therefore is the appeal is dismissed. The cost orders are those which have been indicated in the judgments of Justice Beazley and myself. 1. Appeal dismissed. 2. Appellant to pay costs of appeal and cross-appeal. Counsel for the appellant: J F Burn Solicitors for the appellant: Worrall & Associates Counsel for the respondent: P J Granger Solicitors for the respondent: Frank & Woods Counsel for the second cross respondent: J Stuckey-Clarke Solicitors for the second cross respondent: Lander & Rogers Counsel for the third cross respondent: M J Williams Solicitors for the third cross respondent: Abbott Tout