Endresz and others v Queensland Racing Integrity Commission and another [2025] QSC 93

Judgment (75 paragraphs)

[1]

ASSOCIATIONS AND CLUBS - PROCEDURE IN ACTIONS BY AND AGAINST - RACING CLUBS AND ASSOCIATIONS - DISQUALIFICATIONS - OF HORSE - where the applicants are a registered syndicate of owners of a thoroughbred racehorse - where the respondents are statutory bodies responsible for, among other things, making decisions about disciplinary matters relating to thoroughbred racing in accordance with the Racing Integrity Act 2016 (Qld) and the Australian Rules of Racing ("AR") - where the applicants' racehorse placed first at a race conducted by the respondents in January 2020 - where a prohibited substance was detected in a post-race urine sample taken from the horse - where the first respondent's stewards conducted an inquiry that found that the horse had been brought onto the racecourse with a prohibited substance in its system and disqualified the horse from its placing pursuant to the AR - where the applicants successfully appealed the decision of the inquiry and obtained orders declaring the disqualification to be void and of no effect on grounds of natural justice - where the first respondent sought to conduct a second inquiry into the results of the analysis of the post-race urine sample but later discontinued that inquiry - where in December 2024 the first respondent advised the applicants of its intention to conduct a third inquiry - whether the first respondent's stewards have already exercised the power to conduct an inquiry under the AR - whether the stewards have failed to perform relevant obligations within a reasonable time - whether the third inquiry is without jurisdiction and beyond power

[2]

Racing Integrity Act 2016, s 58

[3]

Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185, cited

[4]

Endresz v Queensland Racing Integrity Commission [2022] QSC 262, cited

[5]

McManus v Lithgow and District Workmen's Club Ltd, unreported, Supreme Court of New South Wales, Equity Division, Helsham CJ in Eq, No 1617 of 1981, 25 May 1981, considered

[6]

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, cited

[7]

Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, cited

[8]

Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz [2024] QCA 76, considered

[9]

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, cited

[10]

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited

[11]

Queensland Racing Integrity Commission (Legal) for the first respondent

[12]

[1] In race 6 at the Gold Coast Magic Millions race meeting held on 11 January 2020, Alligator Blood was first past the post.
[2] At that time, the first to fourth applicants were the owners of Alligator Blood and they looked forward to receiving the prize money of just under $980,000. But that didn't happen. A stewards' inquiry (the First Inquiry) was conducted in July 2020 and it held that the horse's trainer had brought Alligator Blood to the racecourse for the purpose of participating in a race with a prohibited substance detected. The trainer was found guilty and the horse was disqualified from its first placing.
[3] In December 2022 Burns J declared that the disqualification was void and of no effect on the basis that the owners had not been provided with an opportunity to be heard[1]. The Court of Appeal dismissed an appeal from that decision[2].
[4] Two months after the appeal judgment was given, the Queensland Racing Integrity Commission (QRIC) informed the owners that the stewards had commenced an inquiry (the Second Inquiry) into the results of the analysis conducted on the post-race urine sample taken from Alligator Blood. Correspondence between the parties ensued until, in December 2024, QRIC told the owners that the Second Inquiry had been discontinued.
[5] In December 2024, QRIC notified the owners that a new panel had been constituted which would conduct an inquiry (the Third Inquiry).
[6] The owners seek:

[13]

(a) a declaration that the Third Inquiry is void and of no effect,

[14]

(b) a permanent injunction restraining any future inquiry or action that may affect the first placing of the horse in the race, and

(c) an order for payment of the prize money with interest.

[15]

[7] The owners base their application on two grounds. First, that the Third Inquiry is without jurisdiction and beyond power because the stewards' relevant power is unable to be exercised again. Secondly, if the stewards can engage in another inquiry, then it is without jurisdiction and beyond power because certain obligations have not been performed within a reasonable time.

[16]

[8] Thoroughbred racing in Australia is governed by a mix of statutes and rules. Of principal importance are the Australian Rules of Racing (AR). The AR operate as a contract between those who participate in racing (owners, trainers, jockeys and so on), Racing Australia (a company limited by guarantee) and each "principal racing authority". They include a standing offer to persons intending to participate in the industry to the effect that, if they choose to participate, then they are agreeing to be bound to comply with the prescribed rules. The AR therefore create contractual rights and obligations and apply to all races held under the management or control of the Board.
[9] The principal racing authority in Queensland is Racing Queensland Ltd. The Racing Integrity Act 2016 provides that QRIC may make a standard for a code of racing - see s 58. QRIC has made such a standard with the effect that it exercises powers under the AR in accordance with its statutory functions.
[10] The power which allows the stewards to conduct an inquiry is found in AR 19, AR 20 and AR 22(1)(a) and (b). The rules are regularly amended. I will refer to the rules which were in place in January 2020.
[11] AR 19 relevantly provides:

[17]

Wherever it is stated in these Australian Rules that a Steward has a power or a function, the source of that power or function is to be taken and read as being conferred on the Steward in each of the racing jurisdictions in Australia as follows:

[18]

(c) in Queensland: Stewards' powers and functions are conferred on them by the Rules read with the Queensland Racing Integrity Commission (QRIC) "Standard - Powers under the Rules of Racing" dated 1 July 2017, made pursuant to section 58(1)(b) of the Racing Integrity Act 2016 (Qld);

[19]

(a) to regulate and control, investigate, inquire into, hear and determine matters relating to the conduct of all officials, licensed persons or registered persons, persons connected with a horse, persons attending a racecourse, and any other person connected with racing;

[20]

(c) to take (or cause the taking of) a sample from a horse and to make (or cause to be made) any testing or analysis to determine whether any prohibited substance is present in the system of the horse;

[21]

(h) to inquire at any time into the running of any horse within the jurisdiction of the same PRA;

[22]

[13] More specific powers are endowed in AR 22:

[23]

(1) Without limiting any other Stewards' powers, the Stewards have the following powers in relation to investigations and inquiries:

[24]

(a) to investigate and/or inquire into any matter in connection with racing, including without limitation:

[25]

(i) any matter in connection with any race meeting; and

[26]

(ii) any incident or occurrence in connection with any official trial, jump-out, trackwork, or training facility.

[27]

(b) to hear and make a determination in relation to any matter in connection with racing, including without limitation:

[28]

(i) any matter in connection with any race meeting; and

[29]

(ii) any incident or occurrence in connection with any official trial, jump-out, trackwork, or training facility;

[30]

(c) to take any action the Stewards deem necessary in respect of any horse involved in any investigation or inquiry conducted under subrule (1)(a) or (b);

[31]

[14] AR 240 provides for the consequences of finding that a prohibited substance was in a sample taken from a horse:

[32]

"AR 240 Prohibited substance in sample taken from horse at race meeting

[33]

(1) Subject to subrule (3), if a horse is brought to a racecourse and a prohibited substance on Prohibited List A and/or Prohibited List B is detected in a sample taken from the horse prior to or following its running in any race, the horse must be disqualified from any race in which it started on that day.

[34]

(2) Subject to subrule (3), if a horse is brought to a racecourse for the purpose of participating in a race and a prohibited substance on Prohibited List A and/or Prohibited List B is detected in a sample taken from the horse prior to or following its running in any race, the trainer and any other person who was in charge of the horse at any relevant time breaches these Australian Rules.

[35]

(a) testosterone (including both free testosterone and testosterone liberated from its conjugates) above the mass concentration set out in paragraph 7(a) or (b) of Schedule 1, Part 2, Division 3 (as applicable); or

[36]

(b) hydrocortisone above the mass concentration set out in paragraph 6 of Schedule 1, Part 2, Division 3,

[37]

is detected in a sample taken from a horse prior to or following its running in any race, a PRA or the Stewards retain a discretion to find that a breach of subrule (1) or (2) has not been committed if, on the basis of scientific and analytical evidence available to them, they are satisfied that the level in the sample was of endogenous origin and/or as a result of endogenous activity."

[38]

[15] In Queensland Racing Integrity Commission v Endresz[3] the Court of Appeal held that there were five factual conditions upon which the operation of AR 240 depended:

[39]

(c) A sample is taken from the horse before or after its running in any race.

[40]

(d) A prohibited substance is detected in that sample.

[41]

(e) That prohibited substance is on the Prohibited List A or Prohibited List B (or both).[4]

[42]

Can the power to conduct an inquiry be exercised more than once?

[43]

[16] The owners accept that, in an ordinary case, a decision affected by jurisdictional error - such as the First Inquiry's decision to disqualify Alligator Blood - may be re-made by the primary decision maker[5]. But, they say, this is not an ordinary case.
[17] The owners argue that:

[44]

(a) QRIC and its stewards have, in the First Inquiry, exercised their power to investigate, hear and determine the controversy which is sought to be considered in the Third Inquiry, and

[45]

(b) in the First Inquiry the stewards determined that they were satisfied that the factual conditions upon which the operation of AR240 turns did exist.

[46]

[18] It follows, the owners argue, that the Third Inquiry is an impermissible attempt to exercise the stewards' powers to investigate, hear and determine a factual controversy once more. This, they contend, would be done in the face of assertions by QRIC that the controversy has already been validly and finally investigated, heard and determined.
[19] The owners also argue that QRIC is proceeding on the basis that the decision made by the stewards is final and conclusive. They rely upon the power under the rules being final and conclusive except where otherwise provided and rely on, among other similar cases, McManus v Lithgow and District Workmen's Club Ltd[6]. In that case, Helsham CJ in Eq said that the particular board, having reached a decision and imposed a suspension on the plaintiff, was functus officio and could not, without agreement by the plaintiff, attempt to undo what it had once done. His Honour recognised, though, that "The case here is not one where there has been a purported, but no actual, exercise of the power to discipline. Different considerations may arise if action taken by the Board were to be vitiated because of failure to observe conditions precedent to the valid exercise of the power, or because, for example, the rules of natural justice had not been observed."
[20] The owners' argument cannot be accepted. QRIC accepts, as it must, that the decision by Burns J (affirmed by the Court of Appeal) means that the decision of the First Inquiry is void and of no effect. It follows, then, that there has been no decision which engages the provisions of AR 240. The failure by QRIC to afford procedural fairness to the owners in the First Inquiry constituted a jurisdictional error. A tribunal in the position of QRIC can conduct a fresh inquiry when its initial inquiry is tainted by jurisdictional error - Re Refugee Review Tribunal; ex parte Aala [7].

[47]

Have relevant obligations been performed within a reasonable time?

[48]

[21] It is not in contest that, in the ordinary course, where the time for performance of a specific obligation under a contract is not specified it will be implied that the obligation must be performed within a reasonable time having regard to all the circumstances - Perri v Coolangatta Investments Pty Ltd[8]. A "reasonable time" for performing an obligation is determined by an objective, fact-specific analysis of the contract's context, the nature of the obligation, and surrounding circumstances.
[22] AR 20(h) provides that the Stewards have the power "to inquire at any time into the running of any horse within the jurisdiction of the same PRA". The owners argue that:

[49]

(a) the power to inquire merely gives the stewards flexibility to act at their discretion within a reasonable time, and

[50]

(b) that the words "at any time" should not be taken to mean that the stewards could exercise their power after the expiration of a reasonable time.

[51]

[23] The AR do not specify the time for the holding of an inquiry and the stewards did not exhibit any urgency in arriving at the decision under AR 240[9]. The ability to conduct an inquiry is not an obligation as might exist in an ordinary contract. AR 20 bestows a power, but it does not oblige the recipient of the power to exercise it at any particular time or at all.
[24] Where a statute contains a discretionary power, the legislature is taken to intend that such a power will be exercised reasonably. In Minister for Immigration and Citizenship v Li[10] Hayne, Kiefel and Bell JJ said:

[52]

"[64] A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of "Wednesbury unreasonableness" in Wednesbury Corporation. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 McHugh and Gummow JJ instanced the 1891 decision of Sharp v Wakefield. In Ex parte Aala, Gaudron and Gummow JJ said that the requirement of reasonableness represents the development of legal thought which began before federation and accommodates s 75(v) to that development.

[53]

[65] In Sharp, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by "according to law". It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be "exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself". It is pointed out in Wade and Forsyth that the legal conception of discretion dates from at least the 16th century. In Sharp, Lord Halsbury LC had referred to Rooke's case of 1598, in which it was stated that the discretion of commissioners of sewers "ought to be limited and bound with the rule of reason and law".

[54]

[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested." (citations omitted)

[55]

[25] While the stewards' power is not directly conferred by statute, the nature of the power, the parties who may be affected, and the consequences of a decision reached after an inquiry all tend to support the conclusion that an inquiry should be conducted within a reasonable time. But, what is a reasonable time?
[26] The proposal for a Third Inquiry was made in December 2024. Given that the race took place in January 2020 that might, on its face, suggest a considerable delay. That conclusion would not sufficiently recognise all the relevant facts.
[27] The relevant starting point is the time at which the capacity to undertake the inquiry is first capable of being exercised - see Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd[11].
[28] The early history of this investigation is set out in the reasons of Burns J at [19]-[25].[12] There was activity in March, April and July 2020 which led to the decision of the First Inquiry. The next formal step was taken by the owners when, in May 2021, they filed proceedings in this court. That litigation did not conclude until May 2024 when the Court of Appeal delivered its decision. Two months later, the owners were informed by QRIC that there was to be a Second Inquiry. The owners complain that that inquiry was not progressed with any reasonable diligence and that it was only after these proceedings were commenced that the Second Inquiry was discontinued. The owners describe the rationale for the discontinuation as "problematic".
[29] The decision to close the Second Inquiry was made after considerable correspondence about the identity and suitability of the person proposed to chair the panel which would conduct the inquiry. Apart from the time which was taken up in that endeavour, the decision to discontinue the Second Inquiry does not reflect upon the reasonableness or otherwise of the time expended in reaching the point where the Third Inquiry was instituted.
[30] On the material available it appears that the time at which the First Inquiry commenced was not a consequence of any unreasonable delay by QRIC. The delay which did occur was as a result of the owners exercising their right to seek to have the original decision set aside. That litigation took three years to conclude. The owners were told within two months of the appeal decision that there was to be another inquiry and, after the events concerning that inquiry concluded, they were told in December 2024 that the Third Inquiry would take place. Although the reason for the initial delay was the failure by the stewards to afford natural justice to the owners, I do not regard that as conclusive of the question of whether the time taken to reach this point was unreasonable. It is a separate matter. I do not accept that the delay, given that more than two thirds of it was due to litigation, was unreasonable.

[56]

[31] The owners complain that the AR have been amended by the insertion of AR 109A. The amendment took effect from 1 November 2024. The new rule provides:

[57]

"Trainer conclusively treated as representative of the owner for the purposes of the principles of procedural fairness and natural justice

[58]

(1) For the purposes of the principles of procedural fairness and natural justice (where applicable under any part of the Rules), the owner or owners of a horse shall be conclusively treated as having been given adequate notice of any matter relating to a horse, and/or an adequate opportunity to be heard in relation to that matter, where such notice and/or an opportunity to be heard is given to the trainer of that horse or the trainer's authorised representative.

[59]

(2) For the avoidance of doubt, any right or entitlement of an owner or owners pursuant to the principles of procedural fairness and natural justice to receive notice of any matter relating to a horse, and/or an adequate opportunity to be heard in relation to that matter, separate from or additional to (1) above, is excluded."

[60]

[32] The owners argue that this amendment will apply to the conduct of the Third Inquiry. That is rejected by QRIC which argues that there is no indication in the AR that AR 109A is to operate retrospectively or that the Third Inquiry will apply it. In QRIC's written submissions it says: "The Third Inquiry is to have regard to the ARR that were in operation at the time the First Inquiry was commenced on 8 July 2022 and finalised after the hearing against the trainer on 23 July 2020. ... AR109A has no application to this process ...". That confirmation has not assuaged the owners' concern.
[33] QRIC has made it clear that it will not rely upon AR 109A at the Third Inquiry - if it were otherwise applicable. The rule does not prevent those who conduct an inquiry from giving owners an opportunity to be heard in full measure. Should the assurances given by QRIC in writing and orally in these proceedings that the owners will be afforded procedural fairness at the inquiry not be fulfilled then the owners will have remedies available to them.
[34] The other matter raised by the owners is that the delay raises questions of availability and competence of evidence. There was evidence that one of the two remaining portions of the post-race urine sample may have been compromised and can no longer be reliably analysed. It was also submitted that the delay raised questions of fairness in terms of availability of evidence and the capacity of witnesses to recall events which occurred years ago. The respondents argue that the matters which must be determined under AR 240 will in large part be uncontentious and that the heart of the case will concern the urine sample and its analysis.
[35] The contention by the owners that delay has prejudiced them was not advanced by them in the earlier litigation. As Fraser AJA observed:

[61]

"[65] ... The owners did not make a submission or seek to adduce evidence that any relevant evidence available at the time of the disqualification might have been lost since then. It is appropriate for present purposes to proceed upon the assumption that up to this time the owners have not been prejudiced in that respect by delay since the stewards' original decision."[13]

[62]

[36] There was evidence of expert opinion concerning the reliability of any testing conducted on one of the urine samples taken after the race. One expert said that the sample had been compromised. The question of the useability of the urine sample is a matter for the Third Inquiry. It cannot be determined in these proceedings.

[63]