Willey & Ors v Qld Principal Club [1999] QCA 256

Court of Appeal (Qld)|1999-07-09|Before: McMurdo P, Davies JA, Thomas JA, Mr J, Before McMurdo P

1 Each of the appellants, who was represented in this Court by Mr Sweeney of counsel, was disqualified by the Queensland Principal Club, the respondent. These disqualifications, or purported disqualifications, occurred in June, July and October 1998. It is sufficient to say of their consequences that in each case it had an effect on the appellant's livelihood and reputation. They occurred because in each case the Queensland Principal Club held that the appellant was interested in a horse entered in and running at an unregistered race meeting on 8 June 1998 contrary to r 77(1) of the local rules of the Queensland Principal Club.

2 On that day each of the appellants, in different capacities, participated in the Kooralbyn Picnic Race Day held at the Kooralbyn Hotel Resort. Included in the activities on that day were eight horse races together with other activities including such things as tent pegging, polo games and a sheep dog trial demonstration. The day was described in a brochure as a family fun day.

3 The events on that day were conducted by the Kooralbyn Hotel Resort. Each of the appellants participated in the horse racing part of the programme. The appellant Mr Hogno trained and nominated a horse for one or more of the races. The appellant Mr Lamb rode four horses in four races that day. The appellant Mr Willey nominated and trained two horses and rode one horse in two races. And the appellant Ms Van Rees rode one horse in a race on that day.

4 Prior to that day Kooralbyn Hotel Resort applied for and obtained a combined sports meeting permit pursuant to s 135 of the Racing and Betting Act 1980. That permit was issued on 4 June 1998. It provided as follows:-

"This permit is granted to the Kooralbyn Hotel Resort in respect of a Combined Sports Meeting to be held at the Kooralbyn Hotel on Monday 8 June 1998 subject to the provisions of the above Act and to the following conditions:

2. The operation of the totalisator is prohibited.

3. A policy of insurance is taken out as indicated in the application."

5 The permit was signed by the Commissioner of Police who was, at the relevant time, the chief executive referred to in s 135.

6 In this Court it was conceded by the appellants that if the combined sports meeting held on 8 June 1998 was an unregistered race meeting contrary to r 77 the Principal Club was entitled to disqualify each of them as it purported to do.

7 A "combined sports meeting" for the purpose of s 135 means a meeting for the conduct of foot races, bicycle races, or any other games, sports pastimes, contests, events or contingencies that include one or more than one horse race, trotting race or greyhound race.[1] A "horse race" is defined in s 135(1) to include hurdle race or steeple chase but not to include flag race or jumping or a like event in which a skill other than speed alone is tested. Subsection (2) provides that a person who desires to hold a combined sports meeting may make application as prescribed for a permit under that section. The application is made to the chief executive who may grant or refuse it. A permit under that section is said to be subject to the Act and on such terms, conditions or restrictions as the chief executive imposes and it authorizes the holder thereof to conduct a combined sports meeting and do such other acts and things as are prescribed with respect thereto.[2]

8 The central question is whether a combined sports meeting for which a permit has been granted under s 135 may nevertheless also be an unregistered race meeting contrary to local r 77 with the consequent disqualification by the Queensland Principal Club of those who participate in it. If that is so then this appeal must fail; if not, it must succeed.

9 It was common ground before this Court that the reference in local r 77(1) to an unregistered meeting is a reference to the requirement in Australian r 13 which provides that the committee of a Principal Club may at its discretion, accept or refuse registration of race meetings. Under Australian r 35 the committee has power to exempt any such meeting from the provisions of any rules. It was common ground in the present appeal that no such registration was obtained in the present case, nor was any exemption granted under r 35.

10 The local rules of racing of the Principal Club, together with the Australian rules of racing as adopted by the Club together constitute the rules of racing.[3] The relationship between the rules of racing and the provisions of the Act is stated in s 130(2) which provides that the rules of racing shall apply subject to the Act and clubs shall make all necessary adaptions to those rules for the purpose of the application of the Act.[4]

11 In considering the intended purpose of s 135 it is convenient to look first at its place in the context of the Act. The Act is divided into eight parts; preliminary, administration, regulation of racing codes, bookmakers, regulation of totalisators, unlawful betting, miscellaneous and transitional. It is Part 3, which is headed "Regulation of Racing Codes" which is of primary importance here. It is, in turn, divided into eight divisions; racing, trotting, greyhound racing, racing appeals tribunal, racing industry co-ordinating committee, prohibition on the admission of the public to inquiries, racing development fund and general provisions. Section 135 is in the last of those divisions which contains a miscellany of unrelated sections. The provisions with respect to race meetings are contained, or at least primarily contained in Division 1. Before turning to any relevant specific provisions something should be said about the history of the Act in general and of s 135 in particular.

12 The Act is, in large measure, an updating and consolidation of the Racing and Betting Act of 1954 and no less than 17 amending Acts. However s 135 was a new provision in 1980. To say that it does not sit well with a number of provisions which had existed in the earlier Act and which were reproduced with minor changes in the Act is something of an understatement. Read literally, a number of those continued provisions are inconsistent with s 135. The most important of these, for present purposes are, s 16[5] and s 31.[6] Both are contained in Division 1 of Part 3 headed "Racing",[7] as is s 11A which states the function of the Queensland Principal Club.

"A person other than a non-proprietary registered race club shall not conduct a horse race or hold a race meeting."

Read literally[8] this would mean that, in holding its combined sports day for which it had a permit under s 135, Kooralbyn Hotel Resort was in breach of s 16.

14 It is common ground in this Court that that cannot have been the legislative intention; and that, on the contrary, the intention is that a person who conducts a combined sports meeting pursuant to a permit under s 135 is not in breach of s 16. That result may be reached in a number of ways. One, for which Mr Dunning for the respondent contended, is that because s 135 is a subsequent and more specific provision, a permit holder under that section should be excepted from the requirement that only non-proprietary registered clubs may conduct a horse race or hold a race meeting. Another possible construction is that the legislative intention is that a combined sports meeting for which a permit has been obtained is not a race meeting for the purpose of Division 1 or the rules of racing or a trotting meeting for the purpose of Division 2[9] or the rules of trotting or a greyhound meeting for the purposes of Division 3[10] or the rules of greyhound racing.

15 A similar apparent inconsistency is met in s 31(1) which provides:

"A person shall not hold a race meeting or conduct a horse race on a racecourse that is not licensed under this Act."

16 A place for which a permit has been obtained under s 135 is not, by virtue of that permit, a licenced racecourse within the meaning of s 31(1). Section 137 is the section which provides for licensing of racecourses,[11] and the location for the horse races the subject of the permit under s 135 was plainly not licensed under s 137. Moreover the Act appears to use the terms "licence" and "permit" in different senses, the latter being used for rights to do something on one occasion only such as to conduct a combined sports meeting or to conduct bookmaking at a particular athletic meeting;[12] the former being used for the conferral of rights of a more enduring kind such as, in the above example, the licensing of a racing venue, the licensing of bookmakers and bookmakers' clerks[13] and the granting of totalisator licences.[14]

17 Consequently, like s 16, s 31 must be reconciled with s 135 in one or other of the ways referred to earlier; either the requirement of licensing does not apply to a venue for a combined sports meeting notwithstanding that a combined sports meeting is also a race meeting or a combined sports meeting is not a race meeting.[15]

18 There is at least one indication in the Act, other than in s 135 itself, that a combined sports meeting is not intended to be a race meeting for the purpose of Division 1 or the rules of racing, a trotting meeting for the purpose of Division 2 or the rules of trotting or a greyhound meeting for the purpose of Division 3 or the rules of greyhound racing. Section 24[16] provides that a race meeting shall be deemed to commence at the time at which betting with bookmakers under the direction or authority of the steward or stewards in control of that meeting or investment on a totalisator commences at that meeting, whichever is the earlier. It is implicit in that section that a race meeting is one at which betting with bookmakers or investment on a totalisator takes place. That is not always so in respect of a combined sports meeting. In this case the permit expressly excluded betting with bookmakers and the operation of the totalisator.

19 If, notwithstanding the broad definition of the term in s 5, "race meeting" in Division 1 and the rules of racing means a meeting at which betting with bookmakers or on the totalisator takes place, the restrictions on who may hold such meetings in s 16 and where they may be held in s 31 makes good sense in an Act which also regulates bookmakers and totalisators. So do the requirements for registration under the rules of racing. On the other hand it does not make sense to construe those sections so that they would apply to, say, horse races conducted at a pony club or to some other amateur event.

20 The terms of s 135 itself do not prohibit the holding of a combined sports meeting, as defined, without a permit. Nor do any other provisions of the Act. Section 135, in terms, authorises a permit holder to conduct such a meeting. What is the purpose of that authority in the context we have described? In our opinion it is to conduct a combined sports meeting, which includes, amongst other entertainments, racing or trotting or greyhound racing, without being subject to those provisions of the Act, or the rules thereunder, relating to race meetings or trotting meetings or greyhound meetings. In other words it is to deem a combined sports meeting not to be a race meeting or a trotting meeting or a greyhound meeting.

21 Given that, as appears from what we have said, and as indeed was common ground, the Act cannot be construed literally, this Court is then left, as was the learned primary judge, to arrive at a construction which, in its view, in the context of the Act as a whole, most accords with its evident intention. It is with some hesitation that we differ in this respect from the careful reasoned judgment of the learned primary judge. However, for the reasons already given, the construction which, in our view, is more consistent with what appears to be the intention of s 135 is one which frees a permit holder under s 135, and those who participate in events for which the permit is granted, from any obligations which the Act or the rules thereunder otherwise impose on those engaged in racing or trotting or greyhound racing.

22 We would therefore allow the appeal and make the following orders:

1. a declaration that the Kooralbyn Picnic Race Day was not an "unregistered meeting" within the meaning of r 77 of the local rules of the Queensland Principal Club;

2. a declaration that the Queensland Principal Club's purported disqualification of each of the appellants under local r 77 was unlawful;

4. an order that the respondent pay the appellants' costs of this appeal and of the application below.

[4] Section 11B(2)(a) also provides that the Queensland Principal Club may make or amend the local rules of racing in accordance with the Australian rules of racing.

[5] Which corresponds with s 37 and s 38 of the 1954 Act.

[6] Which corresponds with s 42(1) of the 1954 Act.

[7] Defined to mean races for galloping horses: see the definitions of "racing" and "horse race" in s 5.

[8] See the definitions in fn 7 and of "race meeting", "non-proprietary club" and "registered" in s 5.

[11] Section 137 speaks of "racing venues" but, in the case of galloping horses, that is a racecourse: see the definition of "racing venue" in s 5.

[15] The equivalent sections for trotting and greyhound racing are s 71 and s 112.

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