Hogno & Anor v Racing Queensland Ltd & Ors [2013] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION: Hogno & Anor v Racing Queensland Ltd & Ors [2013] QCA 139

PARTIES: STEVEN HOGNO & DEBRA LEE (appellants) v RACING QUEENSLAND LIMITED ACN 142 786 874 (first respondent) ALAN REARDON (second respondent) CHARLES CLIFFORD (third respondent)

FILE NO/S: Appeal No 10429 of 2012 / SC No 7341 of 2000

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 31 May 2013

DELIVERED AT: Brisbane

HEARING DATE: 3 May 2013

JUDGES: Muir and White JJA and Ann Lyons J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed with costs.

CATCHWORDS: ASSOCIATIONS AND CLUBS – EXPULSION, SUSPENSION AND DISQUALIFICATION – REMEDIES FOR WRONGFUL EXERCISE OF POWER – where the appellant, Mr Hogno, was disqualified by the Queensland Principal Club (the QPC) for being interested in a horse that ran at an unregistered race meeting – where the Court of Appeal declared the disqualification unlawful – where the appellants claimed damages for loss as a result of disqualification – where the respondents relied on Australian Rules 197 and 198 which excluded liability for loss arising out of the exercise of power under the rules – where the appellants argued that the Australian Rules did not apply to participants in a combined sports meeting – where the primary judge found that the appellant’s claim fell within AR 197 and AR 198 – whether the trial judge erred in finding that AR 197 and AR 198 apply / GAMING AND LIQUOR – ADMINISTRATION – RACING – STEWARDS AND COMMITTEES OF RACE CLUBS – FUNCTIONS AND POWERS GENERALLY – where the appellants contend that the stewards’ enquiry did not attract quasi-judicial immunity as the subject enquiry did not fall properly within the stewards’ jurisdiction – whether the respondents were exercising quasi-judicial functions and have immunity from suit / TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where the appellants contend that the QPC owed them a duty of care in making their decision to disqualify – where the appellants rely upon the safety focus of specific Rules of Racing as pointing to the existence of a duty of care – whether a duty of care should be imposed in respect of actions of a statutory decision-maker in favour of the person who is affected by the decision made / Racing and Betting Act 1980 (Qld), s 5, s 11A, s 11B, s 118, s 130, s 135 / Statutory Instruments Act 1992 (Qld), s 7, s 9 / Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, considered / Hogno & Lee v Racing Queensland Ltd & Ors [2012] QSC 303, related / Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33, considered / Jones v Bartlett (2000) 205 CLR 166, [2000] HCA 56, cited / Latitude Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 110 ALR 209; [1992] FCA 385, cited / Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65, cited / Quirey v Queensland Principal Club [1995] 2 Qd R 535; [1994] QCA 279, cited / R v Wadley, ex parte Burton [1976] Qd R 286, considered / Re Kooralbyn Picnic Race Day, unreported, Williams J, SC No 11905 of 1998, 29 January 1999, related / State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235, cited / Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, cited / Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41, cited / Willey v Queensland Principal Club [2000] 2 Qd R 210; [1999] QCA 256, related / X (Minors) v Bedfordshire County Council [1995] 2 AC 633; [1995] 3 WLR 152; [1995] UKHL 9, cited

COUNSEL: M Conrick for the appellants / B D O'Donnell QC for the respondents

SOLICITORS: Flehr Law for the appellants / Thynne & Macartney for the respondents

1. MUIR JA: Introduction The appellant, Mr Hogno, owned a registered racehorse, Dandy Dozen. The Queensland Principal Club (the QPC) concluded that Mr Hogno, by nominating, training and racing an unregistered horse, Rare Edition, in the Kooralbyn Picnic Race Day held on 8 June 1998, breached Local Rule (LR) 77 of the Rules of Racing with the result that Mr Hogno was thereby disqualified within the meaning of the Rules. Mr Hogno was advised by the Chairman of the QPC that he could appeal against the stewards’ decision or make a submission to the QPC to have the disqualification lifted. Mr Hogno did not follow this advice. In January 1999, he and others commenced proceedings against the QPC seeking declarations that the QPC acted beyond power and that the disqualifications imposed by the QPC were “unlawful and in consequence void”.¹ The applicants in those proceedings were unsuccessful at first instance² but succeeded on appeal.³ The Court of Appeal declared that Mr Hogno’s disqualification was unlawful and the disqualification was quashed.

2. Mr Hogno commenced these proceedings in the Supreme Court against the QPC (later named Racing Queensland Limited). The primary judge in his reasons referred to the body as the QPC and I shall do likewise. Stewards who participated in the hearing on 9 October 1998, Mr Reardon and Mr Clifford, were respectively made the second and third defendants. They are also respondents to this appeal.

3. In their third Amended Statement of Claim, filed on 17 June 2011, the appellants claimed damages against QPC for:

4. Alleged breach of duties in that, before purporting to disqualify Mr Hogno for participation in the combined sports meeting, the QPC failed to take reasonable care to ensure that:

(a) it had jurisdiction to disqualify Mr Hogno; and

(b) its stipendiary stewards knew and/or observed the limits of their powers in respect of Mr Hogno.

2. Alleged breach of a duty of care owed by the QPC to Mr Hogno and the other appellant, Ms Lee, to ensure that:

(a) the second and third respondents did not make statements or representations to Mr Hogno (as to what racing related activity he could or could not lawfully engage in) which had no, or no adequate, legal basis; and

(b) the QPC did not publish Mr Hogno’s name, as a person disqualified in the horse racing industry, without having any adequate legal basis to do so.

4. On 9 October 2012, after a trial, the primary judge dismissed the appellants’ claim. Ms Lee’s participation in the proceedings was explained by the primary judge as follows in his reasons:⁴

“The claim for Ms Lee is consequential upon the claim made by Mr Hogno. She was both his business and domestic partner. After Mr Hogno was told of his disqualification by the stewards, Ms Lee attempted to transfer the registered ownership of ‘Dandy Dozen’ from Mr Hogno to her. That transfer was eventually disallowed. The basis upon which the claim is made on Ms Lee’s behalf is that the QPC knew or ought to have known that if Mr Hogno was disqualified then that might cause persons in business with him to suffer economic loss.”

5. Before addressing the issues raised on the appeal, it is desirable to explain the background against which the issues arose. The primary judge described the relevant regulatory framework in place at relevant times as follows:⁵

“At the relevant times, the racing industry was subject to the Racing and Betting Act 1980 (‘the Act’).⁶ By s 11 it created the Queensland Principal Club and its functions included the control, supervision, regulation and promotion of racing. The rules which governed horse racing under the control of the QPC (the ‘rules of racing’) were defined in s 5 to be an amalgamation of the Australian rules (‘AR’) of racing and the local rules (‘LR’) of the club together with any regulations.”

6. The Act relevantly provided:

“**11B.(1)**The Queensland Principal Club has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

**(2)**Without limiting subsection (1), the Queensland Principal Club has the powers conferred on it under this Act and may—

(a)make or amend the local rules of racing in accordance with the Australian Rules of Racing; and

…

(c)register or license, or refuse to register or license, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, bookmaker, bookmaker’s clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period; and

(d)supervise the activities of race clubs, persons licensed by the Queensland Principal Club and all other persons engaged in or associated with racing; and

…

(k)impose a penalty on a person licensed by it, or an owner of a horse for a contravention of the rules of racing; and

…

(u)publish material, including periodical publications, to inform and keep informed the public concerning matters relating to racing, whether in Queensland or elsewhere; and

…

(x)take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions.

…

**130.****(2)**The rules of racing … shall apply subject to this Act and clubs shall make all necessary adaptations to those rules for the purpose of the application of this Act.

…

**135.****(1)**For the purposes of this section and the definition ‘combined sports meeting’—

‘horse race’ includes hurdle race or steeple chase but does not include flag race or jumping or a like event in which a skill other than speed alone is tested.

**(2)**A person who desires to hold a combined sports meeting may make application as prescribed for a permit under this section.

**(2A)**An application for a permit under this section—

(a)shall be made to the chief executive;

(b)shall be in writing in the form approved by the chief executive;

(c)shall contain the prescribed particulars.

**(2B)**The chief executive shall consider each application and may grant or, without giving a reason therefor, refuse it.

**(2C)**Where an application is granted the chief executive shall issue in respect thereof a permit.

**(3)**A permit under this section—

(a)shall be in writing in the form approved by the chief executive;

(b)shall be subject to this Act and such terms, conditions or restrictions as the chief executive either generally or in a particular case imposes, endorsed or attached to the permit;

(c)shall authorise the holder thereof to conduct a combined sports meeting and do such other acts and things as are prescribed with respect thereto;

(d)may be cancelled by the chief executive at any time after its issue without giving a reason therefor;

(e)may be amended, altered, varied or otherwise modified by the chief executive during the currency thereof.”

7. The relevant provisions of the Australian Rules and the Local Rules were as follows:

“AR.6.

(a)These Rules apply to all races held under the management or control of a Principal Club …

(b)If any race meeting is not held under these Rules all horses taking part shall ipso facto be disqualified, and no person taking part therein shall be competent to enter a horse for any race held under the Rules or to hold or continue to hold any licence unless the Committee shall otherwise determine.

…

AR.181.

A list of persons … disqualified … shall from time to time be published in the Racing Calendar …

AR.182.

**(1)**Except with the consent of the Committee that imposed the disqualification, a person disqualified by the stewards or Committee of a Principal Club shall not during the period of that disqualification:–

(a) Enter upon any racecourse or training track owned, operated or controlled by a Club or any land used in connection therewith;

(b) Enter upon any training complex or training establishment of any Club or licensed person;

(c) Be employed or engaged in any capacity in any racing stable;

(d) Ride any racehorse in any race, trial or test;

(e) Enter or nominate any racehorse for any race or official barrier trial whether acting as agent or principal;

(f) Subscribe to any sweepstakes;

(g) Race or have trained any horse whether as owner, trainer, lessee or otherwise;

(h) Share in the winnings of any horse.

(2) No person who in the opinion of the Committee or the Stewards is a close associate of a disqualified person shall be permitted to train or race any horse.

…

AR.197.

No person shall be entitled to make any claim for damages by reason or in consequence of the imposition, annulment, removal, mitigation, or remission of any punishment imposed or purporting to be imposed under the Rules.

AR.198.

No club, official or member of a club shall be liable to any person for any loss or damage sustained by that person as a result of, or in any way (either directly or indirectly) arising out of the exercise of any right, privilege, power, duty or discretion conferred or imposed, or bona-fide believed to have been conferred or imposed, under the Rules.

…

L.R.77.

(1) Any person who nominates or enters owns trains or rides or undertakes the care or management or is otherwise interested in a horse entered or running at an unregistered meeting becomes ipso facto a person disqualified within the meaning of the Rules.

(2) A horse becomes automatically disqualified within the meaning of the Rules:

(a) if it has been entered for or runs at any unregistered meeting;

(b) if it is owned or trained or is under the care or management of a disqualified person.”

The primary judge’s findings

8. The primary judge identified the following defences pleaded by the respondents:⁷

“(a)that the defendants are entitled to immunity;

(b)if they do not have immunity, then there was no duty of care;

(c)if there was a duty of care, then there was no negligence; and

(d)if they were negligent, then they are protected from liability by the operation of AR 197 and 198.”

9. He then considered the defences and found that they were all made out.

10. In relation to the alleged entitlement to immunity, the primary judge held:⁸

“A tribunal which exercises quasi-judicial functions is not liable for the things which are done or said in the course of proceedings or for the decision which it makes. That is a relatively simple statement, but it is one which conceals a number of issues which must be considered before concluding that immunity exists.”

11. After considering the relevant authorities and principles, the primary judge concluded:⁹

“The following matters (some of which overlap), at least, are significant for the determination of whether a person or tribunal has acted in the relevant quasi-judicial sense:

(a)the decision must have been made in the discharge of a public duty (see, for example, Everett v Griffiths);

(b)the decision must affect the liberty or property of a person (Everett v Griffiths);

(c)the person or tribunal is authorised by law to conduct an inquiry proceeding judicially, that is, in a manner as nearly as possible similar to that in which a court acts in respect of an inquiry before it (Tampion v Anderson; Trapp v Mackie);

(d)the nature of the question being considered (Trapp v Mackie);

(e)the procedure adopted in carrying out the inquiry – are witnesses called, how is evidence received, is there legal representation etc (Trapp v Mackie; Mann v O'Neill);

(f)the legal consequences of the tribunal’s conclusion (Trapp v Mackie);

(g)has there emerged from the proceedings a determination the truth and justice of which are a matter of public concern? (Mann v O'Neill)”

12. His Honour then applied the principles to the facts, stating:¹⁰

“[45]With those matters in mind it is necessary to consider the framework provided by the Act and the Rules, and then the manner in which the inquiry was conducted.

[46]Section 11A(1)(a) of the Act provides that one of the functions of the QPC is ‘to control, supervise, regulate and promote racing’. It was not contested, nor could it be, that a decision made in the furtherance of that function would be in the discharge of a public duty.

[47]The QPC is required by AR 8 to appoint stewards to ‘assist in the control of racing’. Australian Rule 8 also specifies the powers which the stewards have. They include the power:

‘(d)To regulate and control, inquire into and adjudicate upon the conduct of all … persons … connected with a horse … and to punish any such person in their opinion guilty of improper conduct or unseemly behaviour.

(e) To punish any person committing a breach of the Rules …’

[48]The rules provide little guidance as to the manner in which they should go about their duties or how they should determine whether someone has breached a rule. The conduct of racing, though, requires that decisions be made and be made quickly. That is evident from a number of rules in which the stewards are given very wide powers; for example, AR 8(l) allows a steward to ‘order down any rider without assigning any reason and if they think fit to substitute another rider.’

[49]There is also a ‘catch all’ provision in AR 10:

‘The Stewards may at any time inquire into, adjudicate upon and deal with any matter in connection with any race meeting or any matter or incident related to racing.’

…

[52]In this case, there were some circumstances advanced as being indicative of a judicial proceeding. They were:

(a) Mr Hogno was informed that an inquiry was to be convened in order to investigate whether he had acted in breach of LR 77;

(b) the QPC required that Mr Hogno attend;

(c) the stewards did convene the inquiry;

(d) Mr Hogno was present; and

(e) the Rules contemplate that a record of the proceedings before the stewards will be made.

…

[62]The functions of Stewards under the Australian and Local Rules will change according to the matter under consideration and the way in which they proceed; on some occasions they will act administratively, while on others they will act in a quasi-judicial way. Each exercise of power will need to be assessed in accordance with the principles referred to above and it will not be commonplace for each of the indicia to be present.”

13. In conclusion, the primary judge found:¹¹

“In this case, the actions of the Stewards in:

(a) exercising their duties under the Act and the Rules;

(b) advising Mr Hogno of the charge;

(c) requiring his presence at the inquiry;

(d) seeking his submissions on the issue; and

(e) finding that he had breached the rule,

combined with that finding having the consequence that he was disqualified; mean that they were acting quasi-judicially. There is no allegation of malice or bad faith, only negligence, so the defendants are entitled to immunity resulting in them not being able to be the subject of a successful claim.”

14. In considering whether any of the respondents owed a duty of care to the appellants, the primary judge discussed authorities including Hunter Area Health Service v Presland¹² and Graham Barclay Oysters Pty Ltd v Ryan,¹³ in which Gummow and Hayne JJ said:¹⁴

“[146]The existence or otherwise of a common law duty of care allegedly owed by statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

[147]Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.

…

[149]An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.” (citations omitted)

15. His Honour, referring to the reasons of Spigelman CJ in Hunter Area Health Service v Presland, said:¹⁵

“The tests which are required to be applied were set out by Spigelman CJ as follows:¹⁶

‘[11]For the purpose of determining whether the relationship between a statutory decision-maker and an individual is such as to create a duty of care with respect to the exercise of the power, a court must consider a range of circumstances. As the above passage from the joint judgment of Gummow J and Hayne J indicates, four matters are of significance:

the purpose to be served by the exercise of the power;

the control over the relevant risk by the depository of the power;

the vulnerability of the persons put at risk; and

coherence.

[12]The purpose or purposes of the exercise of the power identifies the beneficiary of its exercise. Insofar as the beneficiary is the public at large, or a section of the public, it is unlikely that a duty of care will attach to the exercise of the power. Where the person asserting the existence of a duty is a person whose welfare or safety is to be protected by the exercise of the power, then the court will more readily reach the conclusion that a duty of care at common law arises. The fact that a power has been conferred for the protection of a particular class of person is not determinative, but it is indicative. (See, for example, Graham Barclay Oysters Pty Ltd (at 574 [79]) and (at 580 [91]) per McHugh J.) In Graham Barclay Oysters Pty Ltd the court concluded that the powers there under consideration were conferred for the benefit of the public generally.

[13]Analysis of the statute is required in order to determine whether the person, who asserts a duty is owed to him or her, is a beneficiary of the power. What is not authoritatively established, on the authorities, is the degree to which the scope and purpose of the power defines the scope or extent of the duty. Nevertheless, where the power is conferred for the purpose of protecting, inter alia, the plaintiff, from a risk that has materialised, that is a factor entitled to considerable weight and will, in the ordinary case, be determinative on the issue of scope of duty. Where there is no coincidence between the scope and purpose of the power and the scope of duty required to determine the proceedings, the weight to be given to this consideration will be less.

[14]On the issue of control, Gummow J and Hayne J said in Graham Barclay Oysters Pty Ltd (at 598 [150]): “The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority”. (footnotes omitted)

[15]This sentence reiterated the approach adopted in the joint judgment of Gaudron J, McHugh J and Gummow J in Brodie (at 559 [102]):

“[102] ... [O]n occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance.” (footnotes omitted)’”

16. The primary judge dismissed the argument that Mr Hogno was in a position of vulnerability were the stewards to make an error in conducting an inquiry. His Honour held that the relevant “vulnerability” was “a person’s inability to protect himself or herself from the consequences of the conduct said to be negligent”.¹⁷ In this regard, his Honour found that Mr Hogno had a number of avenues available to him such as applying to the QPC for a lifting of his disqualification, appealing against the stewards’ decision and judicial review. He held that no duty of care could exist in respect of Ms Lee as the stewards did not deal with and were not concerned with her behaviour. She was not charged and no hearing or determination was made in relation to her.

17. In relation to the alleged negligence of the stewards, the primary judge said that the appellants’ case was “really … that the interpretation used by the stewards of the relevant Rules was arrived at negligently”.¹⁸ The primary judge observed:¹⁹

“It will be a rare event where a party will be found to have been negligent where it has acted on the basis of a particular construction of an Act or, in this case, the rules of racing, where that construction coincides with the conclusion of a judge arrived at in a ‘careful reasoned judgment’.”

18. He observed that the stewards’ view of their jurisdiction coincided with that of Williams J and that the Court of Appeal had referred to Williams J’s “carefully reasoned judgment”.²⁰ The primary judge thus concluded that negligence had not been established.

19. In relation to the respondents’ reliance on AR 197 and AR 198, the primary judge referred to the appellants’ argument that neither rule applied as their claims were not for damages in consequence of the imposition of a penalty. It was held that the argument lacked substance as the alleged loss, on the appellants’ own case, arose out of the exercise of a power under the Rules. It was no answer to this, in the primary judge’s view, that the rule relied on by the stewards did not apply to the appellants as AR 198 excluded liability for loss arising out of the exercise of any power bona fide believed to have been conferred or imposed under the Rules. The primary judge held that the stewards proceeded according to their understanding of the Rules and acted bona fide in so doing.²¹

The competing contentions in relation to the application of AR 197 and AR 198

20. It is convenient to start the consideration of the issues raised on appeal with the appellants’ challenge to the finding that their claim fell within both AR 197 and AR 198. Unless the appellants succeed in establishing error in this regard, the appeal must fail.

21. The appellants argued that the Australian Rules did not apply to those who participated in a combined sports meeting conducted pursuant to a combined sports meeting permit under s 135 of the Act. It was further argued that the appellants were not licensed by the QPC and no “contract theory” could apply the Rules to the appellants’ activities that had nothing to do with their ownership of a registered race horse, Dandy Dozen. “Contract theory” is a reference to the following views expressed by Wanstall SPJ, Hanger CJ and Stable J agreeing, in R v Wadley, ex parte Burton:²²

“The Rules of Racing constitute a contract between the Principal Club, in this case the Queensland Turf Club, and ‘any person who takes part in any matter coming within these Rules’, who ‘thereby agrees to be bound by them’ (A.R.2). By A.R. 5, ‘These Rules apply to all races held under the management or control of a Principal Club, and shall, together with such Rules … as may from time to time be made by the Principal Club in its territory be read and construed as the Rules of the Principal Club in such territory and … shall apply to all races held under the management of a Principal Club or any registered Club and to all meetings registered by a Principal Club.’”

22. It was held that the prosecutor, a jockey, by riding a horse in a race “made himself subject to the Rules and amenable to the Committee’s jurisdiction to charge him, to inquire into the charge and to hear and determine it”.²³ Rules 2 and 5 considered by Wanstall SPJ were in relevant aspects materially the same as AR 2 and AR 6 of the rules relevant to these proceedings.

23. The respondents argued that the Rules of Racing amounted to delegated legislation pursuant to the Act and were recognised and given statutory force by the Act. This was said to be the result of the definition of “rules of racing” in s 5 and a combination of ss 11A(2), 11B(2)(a) and 130(2).

24. Counsel for the respondents also relied on the observations of Williams J in Re Kooralbyn Picnic Race Day:²⁴

“The Act … specifically acknowledges the force and effect of the Rules of Racing, and in consequence there is no necessary inconsistency between saying that an event was legal for purposes of the Act but unauthorised so far as the Rules of Racing were concerned.”

The application of AR 197 and AR 198 – consideration

25. Section 5 of the Act defined “rules of racing” as meaning:

“…the rules for the time being governing and relating to horse racing under the control of the Queensland Principal Club, being with respect to the Queensland Principal Club an amalgamation of the Australian rules of racing as adopted by the club and the local rules of racing of the club together with the regulations made thereunder.”

26. Section 11A of the Act provided:

“Functions of Queensland Principal Club

**11A.(1)**The functions of the Queensland Principal Club are—

(a) to control, supervise, regulate and promote racing; and

(b) to initiate, develop and implement policies it considers conducive to the development and welfare of the racing industry and the protection of the public interest, in relation to the racing industry.

**(2)**The rules of racing, to the extent necessary to give operation and effect to this section, are to be read subject to this section.”

27. Section 11B(2)(a) provided that the QPC had the powers conferred on it under the Act and may “make or amend the local rules of racing in accordance with the Australian Rules of Racing”.

28. The powers specifically conferred on the QPC by paragraphs (c), (d) and (k) of s 11B(2) of the Act are also relevant. It is convenient to repeat them:

“(c)register or license, or refuse to register or license, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, bookmaker, bookmaker’s clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period; and

(d)supervise the activities of race clubs, persons licensed by the Queensland Principal Club and all other persons engaged in or associated with racing; and

…

(k) impose a penalty on a person licensed by it, or an owner of a horse for a contravention of the rules of racing …”

29. Sections 130(2) and 130(3) of the Act provided:

“(2)The rules of racing, rules of trotting and rules of greyhound racing shall apply subject to this Act and clubs shall make all necessary adaptations to those rules for the purpose of the application of this Act.

(3)A club shall not make, permit or suffer any exemption or waiver of any of those rules that might prejudice or otherwise affect the operation of this Act.” (emphasis added)

30. Section 11B(1) gave the QPC “power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions”. The power expressly included a power to “impose a penalty … on … an owner of a horse for a contravention of the rules of racing”.²⁵

31. Sections 11A and 11B of the Act implicitly acknowledge that in performing its functions of controlling, supervising, regulating and promoting racing, the QPC will apply the Rules of Racing. It may be the case that the Australian Rules are not subordinate legislation as the respondents contend. Those rules do not appear to meet the definition of “subordinate legislation” in s 9 of the Statutory Instruments Act 1992 (Qld) or to be a “statutory instrument” within the meaning of s 7 of that Act. In particular, it is arguable that the Australian Rules, as distinct from the Local Rules, are not “made under … power conferred by an Act or statutory instrument [or] under power conferred otherwise by law”²⁶ and that the Australian Rules of Racing do not “lay down general rules of conduct affecting the community at large which have been made by a body expressly authorised so to act by an Act of parliament”.²⁷

32. Australian Rule 208 provides that the rules “may from time to time be rescinded or altered and new Rules made by a resolution of a two-thirds majority of Delegates of the Principal Clubs”. I do not consider, however, that the precise legal classification of the Australian Rules of Racing is critical for present purposes. The Act, as I have said, implicitly acknowledges that the Rules of Racing are to be applied by the QPC in the performance of its statutory functions. Australian Rules 197 and 198 thus form part of the regulatory framework contained in the Australian Rules of Racing and Local Rules of Racing which have general application, by force of statute, to the performance by QPC of its statutory functions.

33. I accept the respondents’ submission that Mr Hogno came within AR 2 as a “person who takes part in any matter coming within” the Australian Rules of Racing. He was the owner of a horse registered with the QPC and actively involved in racing. Australian Rule 6 expressly referred to race meetings not held under the Australian Rules of Racing. Australian Rule 10 authorised the stewards to, at any time, “inquire into, adjudicate upon and deal with any matter … or incident related to racing”.

34. The fact that the QPC erred in concluding that there had been a breach of the Rules by Mr Hogno did not prevent the application of AR 197 and AR 198. Those provisions were deliberately expressed to cover circumstances in which persons had suffered loss through the erroneous exercise of powers under the rules provided that the powers exercised were bona fide. Moreover, a misunderstanding of the Rules did not deprive the QPC, through its stewards, of the powers of supervision and regulation conferred by s 11A(1) of the Act, the power to supervise specifically conferred by s 11B(2)(d), the authority conferred by AR 10, and the necessarily incidental power to make appropriate enquiries.

Was quasi-judicial immunity attracted – the appellants’ contentions

37. The appellants accepted that a stewards’ enquiry into a matter properly within the stewards’ jurisdiction attracted quasi-judicial immunity. The subject enquiry though was said not to attract such immunity for reasons which I have had difficulty in identifying. The point seemed to be that the circumstances under investigation by the stewards was out of the normal run of matters which they would ordinarily be likely to investigate. That was because the Kooralbyn meeting, as this Court subsequently found, was held under a permit issued pursuant to s 135 of the Act.

Was quasi-judicial immunity attracted – consideration

38. The Rules of Racing contain prohibitions against participation in an unregistered race meeting.³¹ A finding by stewards that the owner of a registered race horse had participated in an unregistered race meeting (a meeting not conducted under the Rules of Racing) would result in an automatic disqualification.³²

39. In a letter dated 10 September 1998, the QPC gave notice to Mr Hogno of the hearing of stewards concerning Mr Hogno’s possible involvement in the Kooralbyn meeting on 8 June and whether there was in consequence a breach of LR 77 in that a horse part owned and trained by him was entered for and participated in the unregistered race meeting.³³ In the course of the hearing, Mr Reardon, the Chairman of the stewards’ panel, observed that “what we have to consider – is whether your involvement relates to that rule [i.e. LR 77]”. Mr Hogno was informed of the matters alleged against him and invited to address the stewards on whether he had breached LR 77 and the consequences of an adverse finding.

40. Mr Hogno argued at the hearing that the QPC had no jurisdiction over an unlicensed person such as himself. It emerged in the course of the hearing that it was one of many hearings which had already been held in respect of attendances at and conduct in relation to the Kooralbyn race meeting. At least one other person who was unlicensed had been disqualified previously by the QPC as a result of involvement in the race meeting. At the conclusion of the hearing, after the evidence and submissions were duly considered and breach found to exist, Mr Hogno was informed by Mr Reardon that, in effect, the stewards found that by nominating, training and racing Rare Edition he fell within LR 77 and became “ipso facto a person disqualified within the meaning of the rules”. He was then advised of the existence of a right of appeal to the South-East Queensland Racing Association and of his ability to make written submissions to the QPC to have his disqualification lifted. The proceedings were recorded and the recording was transcribed.

41. As discussed earlier, the QPC had power to inquire into whether Mr Hogno had contravened the Rules of Racing and was legitimately exercising its supervisory powers conferred by s 11B(2)(d) of the Act. The fact that LR 77 had not been breached did not, of itself, mean that the QPC lacked jurisdiction to inquire into whether a breach had occurred and to make a determination. There was no challenge to the primary judge’s finding that the stewards were acting in good faith.

42. The matters identified by the primary judge in paragraph [12] above support the primary judge’s finding that the stewards were acting quasi-judicially. It is of particular significance that the stewards were making a decision, after conducting an enquiry authorised by law, in the discharge of a public duty which potentially had serious financial consequences for the person charged. The question involved, concerned or bore upon the application of certain Rules of Racing to the conduct of owners and licensees at, and in respect of, race meetings not authorised pursuant to the Rules of Racing. The question was thus one of public interest. It was of particular interest to a section of the public: the racing fraternity.

Did the QPC owe the appellants a duty of care – the competing contentions

43. The substance of the appellants’ contentions in this regard was as follows. There are numerous powers and responsibilities vested in QPC by the Rules which are inconsistent with the primary judge’s finding that:³⁴

“There is nothing in the Act or the Rules which requires that a duty of care be created vis-à-vis the QPC and the individuals involved in racing”.

44. Rules which have a safety focus such as AR 8(jj), (n), (q) and (u), AR 53A, AR 81, AR 87, LR 36(i)(ii)(D), LR 45, LR 50, LR 54, LR 57, LR 65, LR 66, LR 80 and LR 81 point to the existence of a duty of care. So too do the functions of control, supervision and regulation in s 11A(1)(a) of the Act.

45. The general principle is that, absent statutory protection, public office holders are liable for their negligent acts in exercising a statutory power in accordance with the same general principles that apply to private individuals.³⁵ The respondents prima facie owed a duty of care. It was foreseeable that an unjustified disqualification would cause economic harm. There was sufficient proximity and the appellants were vulnerable in that they were unable to protect their economic interests against the risk of disqualification.

46. The primary judge mistakenly placed undue reliance on Graham Barclay Oysters Pty Ltd v Ryan³⁶ and Hunter Area Health Service v Presland,³⁷ which were concerned, not with the negligent exercise of a power, but with a claim that the failure to exercise a statutory power gave rise to an action in negligence for damage that was alleged would not have occurred had the power been exercised.

47. The sole purpose of the stewards’ attendance at the Kooralbyn meeting was to collect the names of license holders participating in the meeting. The enquiry into Mr Hogno was about asserting jurisdiction against a citizen, who held no license issued by the QPC, and who was lawfully going about his own business at a lawfully constituted combined sports meeting.

48. The respondents’ argument was to the following effect. The general principle stated by the appellants is correct but it misses the point involved here of determining whether the statutory and other framework within which the respondents acted gave rise to a duty of care.

49. The reasons given by the primary judge were endorsed and the following further reasons for the absence of a duty of care were articulated.

50. It is easier to find the existence of a duty of care owed by statutory authority to a plaintiff where the statutory power is given for the protection of the plaintiff (or of a class of which the plaintiff is a member). Conversely, it is harder to find the existence of a duty of care where the statutory power is given for the protection of the public.³⁸ Pursuant to s 11A(1) of the Act, the QPC is charged with the statutory functions of controlling, supervising and regulating racing and doing so in protection of the public interest. Hence, the QPC’s role in hearing and determining the charge against Mr Hogno was one of protecting the public interest. It was not a role of the QPC to protect Mr Hogno or to act in his interest.

Was there a duty of care - consideration

50. To impose a duty of care to the person charged would inhibit the role of the Tribunal in investigating and determining the charges without fear or favour. A duty of care would be incompatible with the need for an investigation into the facts to be undertaken without apprehension as to the possible adverse consequences for those conducting the investigation.⁴¹

51. Mr Hogno and others subject to charges brought by stewards were protected against the consequences of error (which could cause loss) by the availability of review and formal appeal process.⁴²

52. As the trial judge held,⁴³ Mr Hogno was not “vulnerable” in the sense of being unable to protect himself from the consequences of the determination of the charge against him. He could have applied to lift the disqualification against him⁴⁴ and he could have appealed against the stewards’ decision.⁴⁵ He could also have sought a declaration that the disqualification was invalid.

53. There is no indication in either the Act or the Rules of Racing that a person in Mr Hogno’s position is to have a private right of action against the decision maker. The focus of the appellants was on those aspects of the rules directed to the welfare, health and fitness of horses, the physical safety of riders and members of the public; the health, fitness and welfare of riders and competitive fairness. That focus was inappropriate. There is no single duty of care owed by the QPC or stewards under the Act or the Rules of Racing. Whether a duty exists and, if it does, its content stands to be determined in each case by reference to the precise facts and circumstances alleged to give rise to the duty.⁴⁶ The relevant role of the stewards was not concerned with the matters relied on by the appellants. It was distinctive, limited and, as the primary judge found, quasi-judicial. The primary judge’s reasons and the respondents’ contentions are compelling. There was no duty of care as alleged.

Change in the appellants’ case

54. On appeal, it was argued by the appellants that the respondents breached their respective duties of care by the administrative act of deciding to convene an enquiry in circumstances in which the QPC took no steps to ensure that its stewards knew the limitation of their jurisdiction. It was further asserted that this administrative step was not covered by quasi-judicial immunity.⁴⁷ The respondents argued that this was not a case which was either pleaded or argued at first instance. The appellants disputed this, relying on paragraph 17 and 18 of the third amended statement of claim. In order to assess the merits of the competing claims, it is necessary to set out the following paragraphs of the third amended statement of claim:

“16C.Prior to 9 October 1998 no officer of the QPC had ever turned his or her mind to the question whether the QPC had power to disqualify participants in horse races held at a combined sports meeting.

16DPrior to 9 October 1998 the QPC had never obtained legal advice that it had power to disqualify participants in horse races held at a combined sports meeting.

16.By no later than 8 October 1998 the QPC knew or ought to have known:

(a)that a disqualification of Hogno under LR 77 of the Rules of Racing might cause Hogno economic loss;

(aa)that if Hogno was purportedly subjected to the disabilities, that might cause persons in business with Hogno to suffer economic loss.

17.In the premises, the QPC owed Hogno and Lee a duty:

(a)before purporting to disqualify Hogno for participation in a combined sports meeting to take reasonable care to ensure that it had jurisdiction to do so;

(b)to take reasonable care to ensure that its stipendiary stewards knew and/or observed the limits to their powers in respect of Hogno.

18.In breach of the duties referred to in paragraph 17 the QPC:

(a)failed to obtain legal advice as to whether or not it had jurisdiction to disqualify Hogno for participation in the combined sports meeting;

(b)failed to otherwise concern itself to identify any, or any sufficient, legal basis for jurisdiction in respect of Hogno by reason of his involvement in the combined sports meeting;

(c)took no steps to ensure that its stipendiary stewards knew the limits of their powers in respect of Hogno;

(d)took no steps to ensure that its stipendiary stewards observed the limits of their powers in respect of Hogno;

(e)failed to give any instruction to the second and third defendants that they lacked jurisdiction over Hogno.

19.On 9 October 1998 the second and third defendants and one other stipendiary steward unknown to Hogno, on behalf of the QPC, purported to disqualify Hogno under LR 77 of the Rules of Racing without temporal limitation (‘the purported disqualification’).

20.The purported disqualification was unlawful for the reasons identified by the Court of Appeal in Steven Hogno and ors v Queensland Principal Club [1999] QCA 256.

20A.By reason of the breach of duty referred to in paragraph 17 and 18 herein Hogno and Lee suffered loss as follows:

(aa)after 9 October 1998 the QPC advertised the fact of the purported disqualification to participants in the horse racing industry;

(a)had Hogno not been purportedly disqualified, Hogno and Lee would have continued to earn income from stud fees, spelling and sale preparations for participants in the horse racing industry from the property for the period after 9 October 1998;

(b)by reason of the purported disqualification, Hogno and Lee refrained from offering their services to the market for stud, spelling and sale preparations in South East Queensland; …”

55. Although, by dissecting paragraphs 17 and 18, it is possible to find a separate duty which existed prior to 9 October 1998 and was breached as alleged in paragraph 18, that is not the case which emerges from a fair reading of paragraphs 16D–20A inclusive. The two duties of care alleged in paragraph 17, which are alleged in paragraph 18 to have been breached, are dependent for their existence on the allegations in paragraph 16. It is concerned with knowledge of the consequences of disqualification or the imposition of other penalties. The matters pleaded in paragraph 20A as giving rise to the appellants’ loss were all the consequence of the “purported disqualification”. A reasonable reading of paragraph 17 in the light of what came before, particularly having regard to paragraph 17(a), is that the breaches of duty related to the meeting of stewards and the decision to disqualify.

56. More significant, however, is the fact that all loss is alleged to flow directly or indirectly from Mr Hogno’s disqualification or purported disqualification. The loss was pleaded in this way because it was obvious that the alleged loss could not have been suffered were it not for the disqualification. Any failure on the part of the QPC to “take reasonable care to ensure that its stipendiary stewards knew and/or observed the limits of their powers in respect of Hogno” could not have caused loss without the subsequent enquiry and disqualification.

57. Even if the appellants were able to sustain a case of breach of duty by the QPC in failing to properly inform or instruct stewards, it remains the case that the claim for damages comes within AR 197 as a claim “by reason or in consequence of the imposition of … punishment … purporting to be imposed under the Rules”. Australian Rule 198 also applies as Mr Hogno’s pleaded loss arose directly or indirectly “out of the exercise of [a] … power, duty or discretion … bona-fide believed to have been conferred or imposed, under the Rules”.

Conclusion

58. No grounds of appeal have been made out and I would order that the appeal be dismissed with costs.

59. No oral or written argument was advanced by the appellants which cast doubt on the primary judge’s reasons for rejecting Ms Lee’s claims. As the primary judge found, there were no dealings between the QPC and Ms Lee. She did not participate in the steward’s enquiry and no order or finding was made by the QPC in relation to her. If Ms Lee suffered any adverse financial consequences, it was only as a result of Mr Hogno’s disqualification at, and as a result of, the steward’s enquiry. As explained earlier, that enquiry attracted quasi-judicial immunity and gave rise to no relevant duty of care.

60. The primary judge’s reasons in respect of the appellants’ damages claims show that, even if the appellants had succeeded on liability, they may well have failed to recover any, or any significant, damages.

61. The respondent filed a notice of contention in which they sought to uphold the primary judge’s determination in relation to damages on a number of other grounds. Having regard to my conclusion in respect of liability, it is unnecessary to examine those grounds.

62. WHITE JA: I agree with the reasons of Muir JA that the appeal should be dismissed.

63. ANN LYONS J: I agree with the reasons of Muir JA and with the order proposed.

Footnotes

1. Re Kooralbyn Picnic Race Day, unreported, Williams J, SC No 11905 of 1998, 29 January 1999 at [1]. ↩

2. Re Kooralbyn Picnic Race Day, unreported, Williams J, SC No 11905 of 1998, 29 January 1999. ↩

3. Willey v Queensland Principal Club [2000] 2 Qd R 210. ↩

4. Hogno & Lee v Racing Queensland Ltd & Ors [2012] QSC 303 at [95]. ↩

5. Hogno & Lee v Racing Queensland Ltd & Ors [2012] QSC 303 at [7]. ↩

6. Reprint 2D. The Act was repealed and replaced by the Racing Act 2002. ↩

7. Hogno & Lee v Racing Queensland Ltd & Ors [2012] QSC 303 at [30]. ↩

8. Hogno & Lee v Racing Queensland Ltd & Ors [2012] QSC 303 at [31]. ↩

9. Hogno & Lee v Racing Queensland Ltd & Ors [2012] QSC 303 at [44]. ↩

10. Hogno & Lee v Racing Queensland Ltd & Ors [2012] QSC 303. ↩

11. Hogno & Lee v Racing Queensland Ltd & Ors [2012] QSC 303 at [63]. ↩

12. (2005) 63 NSWLR 22.