Queensland Harness Racing Ltd v Racing Queensland Ltd & Anor [2011] QSC 125

Office of the Clerk of the Parliament for the Speaker of the Legislative Assembly, Hon John Mickel MP

[1] Until 1 July 2010, the plaintiff, Queensland Harness Racing Ltd ("QHRL"), was the control body for harness racing in Queensland pursuant to the Racing Act 2002 (Qld) ("the Act"). As a consequence of amendments to the Act made by the

Racing and Other Legislation Amendment Act 2010 (Qld) ("the Amending Act"), the first defendant, Racing Queensland Ltd ("RQL"), became the sole control body for thoroughbred racing, harness racing and greyhound racing in Queensland, and the assets of the former control bodies were transferred to RQL. The second defendant, Mr Bentley, who had been the chairman of the control body for thoroughbred racing, became and remains the chairman of RQL.

[2] QHRL has sued RQL and Mr Bentley seeking declaratory and injunctive relief and also claiming damages. I will describe the cases pleaded against them in more detail shortly, but it is sufficient at the outset to note that the case turns on RQL's proposal to sell the Albion Park Raceway complex ("Albion Park"), which for many years has been the centre for harness racing in Brisbane. QHRL says, in essence, that before the Amending Act was put before Parliament, certain representations were made to it which led it to believe that if the racing codes were brought under a single control entity, Albion Park would not be sold and would remain the

long-term home for harness racing, that on this basis QHRL supported the integration of control of the three racing codes, that if the representations about Albion Park's future had been disavowed QHRL would have withdrawn its agreement to integration, and that if that agreement had been withdrawn the Minister for Racing would not have prepared and introduced into Parliament the Bill which became the Amending Act with the result that the Amending Act would not have been enacted and:

(a) QHRL would have retained its interest in Albion Park;

(b) QHRL would have continued as the control body for harness racing in Queensland;

(d) Albion Park would have remained the long-term home of harness racing in Queensland.

[3] In its defence, RQL has expressly contended that significant parts of QHRL's pleaded case, if litigated at trial, would contravene s 8 of the Parliament of Queensland Act 2001 (Qld) ("POQA"), and in any event are not justiciable. In that regard, s 8 provides:

"8 Assembly proceedings can not be impeached or questioned

(1) The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly.

(2) To remove doubt, it is declared that subsection (1) is intended to have the same effect as article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection."

[4] RQL and Mr Bentley have now applied pursuant to Uniform Civil Procedure Rules r 483 for certain questions to be referred to the Court of Appeal on a case stated. Rule 483 provides:

"483 Order for decision and statement of case for opinion

(1) The court may make an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding.

(2) The Supreme Court, other than the Court of Appeal, may also state a case for the opinion of the Court of Appeal.

[5] "Question", defined in r 482, "includes a question or issue in a proceeding, whether of fact or law or party of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise".

[6] A draft Case Stated sets out the history of amendments to the Act, the substance of the relevant legislative provisions, a summary of the facts and matters asserted by QHRL in its pleading, and seeks referral of the following questions:

1. Does the raising of the issues or would the agitation at trial of the issues in paragraphs 25(b)(i) and 28A(b)(i) of the amended statement of claim contravene or cause the contravention of section 8 Parliament of Queensland Act 2001 (Qld)?

2. Are the issues raised in paragraphs 25(b)(i) and 28A(b)(i) of the amended statement justiciable or capable of being adjudicated upon in the Supreme Court of Queensland?

3. Can the plaintiff raise an equity in relation to real property transferred to Racing Queensland by the Racing Act (as amended) by reason of the alleged conduct of the defendants preceding the enactment of the Racing and Other Legislation Amendment Act?

4. Does the operation of s.429 of the Racing Act 2002 (as amended) prevent the plaintiff from bringing an action on a contract which it claims it had entered into prior to 1 July 2010?"

[7] It is uncontroversial that prior to the passing of the Amending Act, QHRL was the control body for harness racing, Queensland Racing Ltd ("QRL") was the control body for thoroughbred racing, and Greyhounds Queensland Ltd ("GQL") was the control body for greyhound racing.

[8] The Amending Act had the effect, inter alia, of inserting Chapter 10 Part 6 into the Act. That amendment to the Act took effect from 1 July 2010.[1]

(a) the approvals under the Act held by the former control bodies (i.e. QHRL, QRL and GQL) were cancelled at midnight on 30 June 2010, and

(b) the Minister had to give approval to RQL to be the control body for thoroughbred racing, harness racing and greyhound racing.

(a) anything that was an asset or liability of a former control body immediately before the commencement becomes an asset or liability of the new control body; and

(b) an agreement or arrangement in force immediately before the commencement between a former control body and another entity is taken to be an agreement or arrangement between the new control body and the other entity; and

(c) any property that was, immediately before the commencement, held by a former control body on trust or subject to conditions continues to be held by the new control body on the same trusts or subject to the same conditions.

(2) The registrar of titles or other person responsible for keeping a register for dealings in property must, if asked by the new control body, record the vesting of property under this section in the new control body."

[11] One of the effects of s 429 was to transfer Albion Park to RQL.

[12] Other new provisions allowed for the continuation of operations of the three racing codes under RQL by, for example, the transfer of employees and their entitlements (s 432) and permitting RQL to commence or continue proceedings in lieu of one of the former control bodies (s 433). The new s 435 provides:

"435 Rights and obligations of former control bodies under this Act

Without limiting any other provision in this part, a right or obligation of a former control body under this Act immediately before the commencement becomes a right or obligation of the new control body."

[13] In short, the assets and operations of the three former control bodies were merged into RQL.

[14] In its further amended statement of claim filed on 15 April 2011 ("FASOC"), QHRL pleads that a number of meetings held from 18 December 2009 were attended by, inter alia, QHRL's chairman Mr Lette, and Mr Bentley (it being alleged that Mr Bentley represented that he was, and that he was in fact, capable of funding RQL). It is pleaded (FASOC, para 7), amongst other things, that at a meeting on 23 December 2009, Mr Bentley made a number of representations, including that he would be the chairman of the proposed new single control body, that the prospect of Albion Park being sold had never been discussed at any QRL board meeting, and that he was prepared to confirm to the Minister that there was no agenda to sell Albion Park. These allegations are denied in the defence, which advances a quite different factual scenario of what is alleged to have occurred and been said at that meeting (Defence, para 7).

[15] QHRL then alleges (FASOC, para 7A) that Mr Bentley's statements conveyed the implied representation that if QHRL agreed to the integration of the racing codes, then (amongst other things):

(b) Albion Park would remain the long-term home and racing headquarters for harness racing; and

(c) RQL would cause a new grandstand to be built at Albion Park using

$14 million - $18 million of funding to be provided by the government for infrastructure.

[16] It is also alleged (FASOC, para 7B) that this conduct by Mr Bentley constituted, in effect, an offer by Mr Bentley on behalf of RQL that if QHRL agreed to the integration, then (amongst other things):

(b) Albion Park would remain the long-term home and racing headquarters for harness racing; and

(c) RQL would cause a new grandstand to be built at Albion Park using

$14 million - $18 million of funding to be provided by the government for infrastructure.

[17] The FASOC then pleads the circumstances under which Mr Lette communicated the substance of the alleged representations to directors and members of QHRL. It also pleads documents which passed between Mr Lette and Mr Bentley which are alleged to confirm, amongst other things, the representation that Albion Park would remain the home and racing headquarters of harness racing. The FASOC pleads further correspondence, including a letter sent by Mr Lette to the Minister on

20 January 2010 in which he stated that "a great majority of issues have been resolved including ... Albion Park has been guaranteed as the long-term home and racing headquarters for Harness racing", and asserts further communications between Mr Lette and the board and members of QHRL in which Mr Lette confirmed, in substance, that he believed there was no reason for QHRL not to agree to the creation of a single control body given that:

(i) guaranteed that Albion Park would be the long-term home and racing headquarters for harness racing;

(ii) confirmed between $14 million and $18 million would be allocated to building a new grandstand at Albion Park; and

(b) the funding for the grandstand would not otherwise be available to the harness racing code.

[18] The FASOC then alleges that, by a letter dated 8 February 2010, an agreement was entered into between QHRL and RQL or Mr Bentley (called "the Integration Agreement"), the terms of which were, in summary:

(a) that QHRL would agree to the Government enacting legislation which had the effect of merging the racing codes and transferring QHRL's assets to RQL;

(b) impliedly, that QHRL would not oppose the Government enacting such legislation;

(c) that the Government would enact that legislation on the basis of the representations which had previously been made as to the future of Albion Park;

(d) that RQL would ensure that Albion Park was not sold and would remain the long-term home and racing headquarters for harness racing and that at least $14 million - $18 million in funding would be applied to build a new grandstand at Albion Park.

[19] It is then alleged that the directors and members of QHRL understood that in supporting (or in the case of the members, not opposing) the creation of a single control body, the Minister would cause a bill to be introduced into Parliament to achieve the merger, that Mr Bentley would be the chairman of RQL, and that

Mr Bentley and RQL would ensure that RQL acted in accordance with the representations which had been made about the future of Albion Park. It is further said that, if the directors and members had not been of these understandings:

(a) QHRL would not have resolved to support the merger at would not have advised the Minister of that support;

(b) The Minister would not have had the bill drafted and then presented to Parliament for enactment;

(c) QHRL would have retained its interest in Albion Park;

(d) QHRL would have retained its power to conduct harness racing at Albion Park and otherwise throughout Queensland;

(f) Albion Park would have remained the long-term home of harness racing in Queensland.

[20] These allegations culminate in paragraph 25 of the FASOC, which alleges:

"25. But for having the understanding as set out in paragraph 24 of this pleading:

(a) the Plaintiff would not have agreed to the integration; and

(b) as a consequence of the Plaintiff not agreeing:

(i) the legislation referred to n paragraph 31 of this pleading would not have been enacted because the Minister would not have proposed, caused to be drafted, or taken any other steps necessary to prepare the bill referred to in paragraph 31 of this pleading or any other bill the effect of which would have been to permit that Albion Park cease to remain for the long term a venue from which harness racing would be conducted to be introduced to Parliament with the result that no legislation which had such effect, including the legislation referred to in paragraph 33 would have been enacted;

(ii) the Plaintiff would have retained its interest in Albion Park;

(iii) the Plaintiff would have retained its power to conduct harness racing at Albion Park and otherwise throughout Queensland; and

(iv) the Plaintiff would have retained its other assets; and

(v) Albion Park would have remained the long term home of harness racing in Queensland."

[21] The FASOC pleads, in effect, that at no subsequent time did RQL disavow the Integration Agreement or any of the representations, and thereby ratified the Integration Agreement. Moreover, it is alleged (FASOC, paras 28, 28AA and 28AB) that RQL's conduct in not disavowing the Integration Agreement amounted to representations that RQL had ratified and would perform the Integration Agreement and also amounted to adoption and ratification by RQL of, amongst other things, the representations about the future of Albion Park.

"28A. Had the Defendants at any time from 25 March 2010 to 20 May 2010 disavowed the Integration Agreement or the representations referred to in paragraph 7A, 28 or 28AA of this pleading, the Plaintiff:

(aa) the Albion Park Club, the Gold Coast Club, the Redcliffe Club and BOTRA would have withdrawn their support for the integration;

(a) the Plaintiff would have withdrawn its agreement referred to in paragraph 25(a) of this pleading; and

(b) as a consequence of the Plaintiff withdrawing its agreement:

(i) the legislation referred to in paragraph 31 of this pleading would not have been enacted because the Minister would not have proposed, caused to be drafted, or taken any other steps necessary to prepare the bill referred to in paragraph 31 of this pleading or any other bill the effect of which would have been to permit that Albion Park cease to remain for the long term a venue from which harness racing would be conducted to be introduced to Parliament with the result that no legislation which had such effect, including the legislation referred to in paragraph 33 would have been enacted;

(ii) the Plaintiff would have retained its interest in Albion Park.

(iii) the Plaintiff would have retained its power to conduct harness racing at Albion Park and otherwise throughout Queensland; and

(iv) the Plaintiff would have retained its other assets; and

(v) Albion Park would have remained the long term home of harness racing in Queensland.

[23] The representations referred to in paragraphs 28 and 28AA are alleged to constitute contraventions of s 52 of the Trade Practices Act 1974 (Cth) ("TPA"), and a plea of accessorial liability against Mr Bentley is made in reliance on s 75B of the TPA.

(b) the publication by RQL in December 2010 of an "Industry Infrastructure Plan" which, relevantly, proposes a sale of Albion Park;

(c) that RQL holds Albion Park on trust for the purpose of permitting the construction of a new grandstand and for use for harness racing "until at least 30 June 2040";

(d) that none of the powers conferred on RQL by the Act (including the power to deal with land) may be used in a way inconsistent with Albion Park being made available for the construction of a new grandstand and for use for harness racing "until at least 30 June 2040";

(e) RQL and Mr Bentley have breached the Integration Agreement;

(f) to the extent that Albion Park is not in the future available for harness racing, QHRL (and its constituent club members) will suffer loss and damage by reduced income, lost rental, etc.

[25] The relief claimed by the FASOC is as follows:

(a) a declaration that the First Defendant holds Albion Park on trust for the purpose of making Albion Park available for:

(ii) its use for harness racing until at least 30 June 2040;

(b) a declaration that the First Defendant does not have power under the Racing Act 2002 to deal with Albion Park in a manner which is inconsistent with Albion Park being made available for the purpose of:

(ii) its use for harness racing until at least 30 June 2040;

(i) section 82 of the Trade Practices Act;

(e) such orders pursuant section 131 of the Corporations Act 2001 (Cth) as the Court thinks fit;

(f) an order that the First Defendant perform the Integration Agreement by:

(i) not selling or attempting to sell Albion Park prior to 1 July 2040;

(ii) seeking and if provided using, funding from the Government to build a new grandstand at Albion Park;

(i) restraining the First Defendant from selling or attempting to sell Albion Park prior to 1 July 2040;

(ii) requiring the First Defendant to make Albion Park available for:

(B) its use for harness racing until at least 30 June 2040;

(h) interest pursuant to section 47 of the Supreme Court Act 1995 (Qld);

(a) an injunction requiring the Second Defendant to use his best endeavours to cause the First Defendant to perform the Integration Agreement by:

(i) not selling or attempting to sell Albion Park prior to 1 July 2040;

(ii) seeking and if provided useing, funding from the Government to build a new grandstand at Albion Park;

(i) section 82 of the Trade Practices Act 1974;

(c) damages pursuant to section 131 of the Corporations Act 2001 (Cth);

(d) interest pursuant to section 47 of the Supreme Court Act 1995 (Qld);

[26] The applicants submit that the first three questions raised on the draft Case Stated are each amenable to and appropriate for referral to the Court of Appeal, and that the compelling reason for so doing is that each question arises from the issue of justiciability and parliamentary privilege. It is contended that, were the matter to proceed in its current form, these issues would need to be determined as preliminary points at trial in order to determine what (if any) evidence is admissible at trial on these issues.

[27] The applicants argue that the fourth question goes to the interpretation of the Act - to the extent that QHRL would contend at trial that the motives of those who caused the passage of the Act are relevant to the interpretation of the Act, than the same issues of justiciability and parliamentary privilege arise.

[28] Further, it was argued that referral of these questions to the Court of Appeal would promote not only efficient use of judicial resources, but would do so in a case which "has great significance for the racing industry in Queensland as it is delaying reform of infrastructure". As to this last point I should observe that, whilst these issues are undoubtedly of significant moment to the racing industry, the evidence before me suggests that this case is not the only impediment to implementation of the infrastructure plan and that other issues, such as the government's response to the natural disasters of early 2011, have contributed to delay in the plan's implementation.

(a) To the extent that the claim advanced by QHRL seeks to go behind or delve into the reasons why Parliament passed the Amending Act, this goes to matters which are not judiciable by the courts and would involve a contravention of s 8 of POQA;[2]

(b) A similar consequence flows to the extent that QHRL seeks to have s 429 of the Act construed by reference to extra parliamentary matters such as the alleged representations and the alleged integration agreement.

[30] QHRL opposed the referral of the questions on a Case Stated, submitting:

(a) There is no agreement about the facts in this case, and indeed there is significant factual controversy about the matters alleged in the FASOC as the prelude to the passing of the Amending Act;

(b) The proposed Case Stated does not impact on QHRL's pleaded case insofar as it seeks a construction of the Act which precludes RQL from dealing with Albion Park and allocating government funds in a way which would breach the Integration Agreement;

(c) For a Case Stated to proceed on assumed facts (in the manner posited by RQL) would lead to the risk of contrary factual findings being made at a subsequent trial;

(d) This risk is elevated, from QHRL's perspective, because it is to some degree presently "fighting blind" - its documents were passed to RQL as part of the merger process and it has only recently had disclosure in this proceeding and is yet to obtain statements from its former chairman and other officers, who need access to the documents to refresh their memories;

(e) There is no urgent need for these questions to be determined in advance of trial, and indeed the process proposed by the defendants is apt to produce a multiplicity of appeals. It was argued that the more efficient, and cost effective, procedure would be to bring the matter on for trial as soon as possible. In that regard, it is to be noted that this proceeding is on the Commercial List, and one can anticipate that trial dates can be had in the relatively near future.

[31] Counsel for the Speaker of the Legislative Assembly appeared and was heard on this application. The position advanced on behalf of the Speaker was:

(a) Parliament has no legal interest in the commercial dispute between the parties;

(b) The Speaker has an interest in maintaining the integrity of the process of the Assembly and in maintaining parliamentary privilege;

(c) Paragraphs 24 and 25 of the FASOC seem to be "pivotal" to QHRL's case and assert, in effect, that but for QHRL's agreement, the Amending Act would not have been enacted because the bill would not have been introduced;

(d) This contention necessarily requires the Court to inquire into and rule upon the process of the Legislative Assembly, and would appear to contravene s 8 of the POQA and be non-justiciable;

(e) Whilst the Speaker neither supported nor opposed the present application, the Speaker would seek to be heard in respect of any inquiry into the processes of the Legislative Assembly, and submitted that it is in the interests of the public to have any such issues determined quickly.

[32] In Reading Australia Pty Ltd v Australian Mutual Providence Society,[3] Branson J summarised[4] the principles that govern an application such as the present. Those principles include (omitting references):

(a) The judicial determination of the question must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties;

(b) Where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined;

(c) Care must be taken in utilising this procedure to avoid the determination of issues not "ripe" for separate and preliminary determination. An issue may not be "ripe" in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved. (In CBS Productions Pty Ltd v O'Neill,[5] Kirby P said[6] that "[a] matter is "ripe" for separate and preliminary determination where it is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy".);

(d) Factors which tend to support the making of an order include that the separate determination of the question may:

(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

(ii) contribute to the settlement of the litigation;

(e) Factors which tell against the making of an order include that the separate determination of the question may:

(i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;

(ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing; or

[33] I am satisfied that, in respect of the matters identified in the draft Case Stated, there are issues raised which will require determination as to the scope and applicability of s 8 of the POQA and whether, and the extent to which, the principles of parliamentary privilege restrict the justiciable scope of the issues raised for ventilation by the FASOC. But these are not the only issues raised by the FASOC. As will be apparent from the summary of the FASOC set out above, QHRL advances a scenario prior to the enactment of the Amending Act in which many of the facts are in dispute. Those facts, however, go not only to the issues in respect of which s 8 of the POQA and the question of parliamentary privilege might apply, but go also to the claims advanced by QHRL in, for example, contract (in respect of the alleged Integration Agreement) and the claims under the TPA.

[34] True it is that referral of these questions to the Court of Appeal may, if the defendants are successful on the Case Stated, have the effect of limiting the legal issues for determination at trial. I am not, however, persuaded that the scope of factual inquiry at the trial would necessarily be significantly reduced even if the defendants were successful in achieving a determination of the Court of Appeal with the effect of limiting the issues to which that evidence could be applied. In other words, I am not persuaded that the issues raised by the applicants are "ripe" for separate and preliminary determination, within the meaning of that term as used by Kirby P in CBS Productions v O'Neill Pty Ltd.

[35] There is nothing before me to suggest that referral of these separate questions would contribute to a settlement of this litigation. Nor am I persuaded that the process contended for by the defendants would contribute to time and cost efficiencies. When the matter comes for trial, the question of the applicability of s 8 of POQA and the principles of parliamentary privilege will need to be determined by the trial judge and rulings made with respect to the evidence proposed to be led in the trial. In the course of appropriate case management (as will undoubtedly occur by this case being managed on the Commercial List) such a determination will be able to be obtained efficiently and (depending on the view taken by the managing judge) perhaps even in advance of trial to enable the evidence at trial to be led in accordance with such rulings. Given the overlap of the factual allegations across the causes of action pleaded in the FASOC, however, I do not see that there would be any great efficiency achieved by referring these separate questions to the Court of Appeal in advance of the trial. The more appropriate procedure, it seems to me, is to have these issues determined at, or prior to the commencement of, the trial.

[36] In short, it seems to me that the more appropriate and efficient course is for the matter to be progressed to trial in the Commercial List as soon as possible.

[37] For completeness, I should note that it was suggested in the course of argument that the progress of the matter to trial would not be unduly interrupted by referral of these questions on a Case Stated because of the likelihood of other interlocutory orders (not yet made) being appealed. Particular reference was made to the prospect of an appeal against an order (in respect of which an application has not yet even been filed) for the joinder of further parties to the matter. Apart from declining to speculate on what parties might or might not do in respect of interlocutory applications which might or might not be made in the future, the fact that a party may at another stage of this proceeding exercise its rights of appeal in respect of an interlocutory process has nothing to do, in my view, with the proper exercise of the discretion under r 483.

[38] Accordingly, the defendants have not satisfied me that it is appropriate to refer the questions set out in the proposed Case Stated to the Court of Appeal.

[39] In respect of QHRL, RQL and Mr Bentley, the costs of this application should follow the event. Counsel for the Speaker confirmed in submissions that his client did not seek costs, regardless of the result.

1. The defendants shall pay the plaintiff's costs of and incidental to the application, to be assessed on the standard basis.

[2] In that regard, and for the purpose of demonstrating that the applicants have an arguable point on this, I was referred to the authorities which make it clear that it is not open to the Court to go behind the processes of Parliament and inquire into how legislation came to be, or whether Parliament was misled into passing legislation. These authorities include Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 at 322-323 and British Railways Board v Pickin [1974] UKHL 1; [1974] AC 765 per Lord Reid at 787-788 and the statement of Lord Morris of Borth-y-Gest at 789 that "[i]n the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the Statute Book at all."

[3] [1999] FCA 718; (1999) 217 ALR 495.

[5] (1985) 1 NSWLR 601.