SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO: 13832/10 DIVISION: PROCEEDING: Queensland Harness Racing Limited & Ors v Racing Queensland Limited & Anor [2012] QSC 34 QUEENSLAND HARNESS RACING LIMITED ACN 128 036 000 (first plaintiff/first respondent) and ALBION PARK HARNESS RACING CLUB INCORPORATED ABN 20 915 436 422 (second plaintiff/second respondent) and GOLD COAST HARNESS RACING CLUB INC ABN 44 353 563 241 (third plaintiff/third respondent) and REDCLIFFE PENINSULA HARNESS RACING AND SPORTING CLUB INC ABN 95 525 290 290 (fourth plaintiff/fourth respondent) and BREEDERS AND OWNERS TRAINERS & REINSPERSONS ASSOCIATION (QLD) INCORPORATED ABN 82 432 467 833 (fifth plaintiff/fifth respondent) v RACING QUEENSLAND LIMITED ACN 142 786 874 (first defendant/first applicant) and ROBERT GEOFFREY BENTLEY (second defendant/second applicant) Trial Division Application DELIVERED ON: 5 March 2012 DELIVERED AT: Brisbane HEARING DATE: 17 October 2011 JUDGE: ORDER: Peter Lyons J 1. The following parts of the Second Further Amended Statement of Claim be struck out:
2 (a) paragraphs 2(b), 3, 4, 5, 6, 7, 7A, 7B, 8, 9, 10, 11, 12, 13, 14,15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 24A, 24B, 25, 26, 27, 28, 28AA, 28AB, 28A, 28B, 28C, 29, 30, 31, 32, 33, 34,35, 36, 37 and 38; (b) (c) in paragraph 39, the words and the Albion Park Club ; paragraphs 1(a), 1(b), 1(c), 1(d) and 2(b) of the prayer for relief. 2. Notwithstanding the order found in paragraph 1(a) the Plaintiffs have leave to file and serve a Third Further Amended Statement of Claim by 20 March 2012 as follows: (a) (b) repleading the Plaintiffs case with respect to the alleged Integration Agreement and pleading a cause of action for relief under s131 of the Corporations Act in a manner consistent with the reasons for judgment delivered 5 March 2012; amending paragraph 2G to add an allegation that the Queensland Control Bodies entered into the Intercode Agreement on their own behalves and as agent/s for the Queensland Racing Entities. 3. Paragraphs 1(a), (b), (c), (d) and 2(b) of the Amended Claim filed 11 July 2011 be struck out. 4. The hearing of questions 1A and 1B to Schedule A to the Application be adjourned to a date to be fixed. 5. The Plaintiffs pay two thirds of the Defendants costs of and incidental to the Application. CATCHWORDS: TRADE AND COMMERCE- COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION- CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS- MISLEADING OR DECEPTIVE CONDUCT GENERALLY - Where second defendant allegedly represented that Albion Park would not be sold, that it would remain the long term home and racing headquarters
3 for harness racing and that a substantial sum of money would be used to upgrade it - where the plaintiffs plead that had the representations been disavowed, the first plaintiff would not have supported the proposed amendment to the Racing Act 2002 that integrated the three codes of racing, the Minister would not have taken steps to introduce the Bill resulting in the amendment and the plaintiffs would not suffered loss - whether determining the motive of the Minister for introducing the Bill for the purpose of establishing causation under s 82 of the Trade Practices Act 1974 amounts to questioning the preparation and presentation of a document to the Legislative Assembly, such that the investigation is prohibited by s 8 of the Parliament of Queensland Act and the issue of damages under the Trade Practices Act is not justiciable. CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS - where plaintiffs plead that had the representations been disavowed, the first plaintiff would not have supported the proposed amendment to the Racing Act 2002 that integrated the three codes of racing, the Minister would not have taken steps to introduce the Bill resulting in the amendment and the plaintiffs would not suffered loss - whether determining the motive of the Minister for introducing the Bill for the purpose of establishing causation under s 82 of the Trade Practices Act 1974 would offend the constitutional principle that the courts will not examine the motives which inspire members of Parliament to enact Laws ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - where powers conferred on first defendant by the 2010 Amendment to the Racing Act - where plaintiffs plead none of the powers so conferred included a power to deal with Albion Park in a way inconsistent with its being made available for the purpose of the construction of a new grandstand, and its use for harness racing until at least 30 June 2040 - whether provisions of the Racing Act 2002 limit the power of the first defendant such that it would be beyond power for it to act in a way inconsistent with Albion Park being retained for the purpose of constructing a new grandstand, and for its use for harness racing until at least 30 June 2040. CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - PARTIES - GENERAL PRINCIPLES - where an agreement is said to have existed between the first plaintiff and the first defendant prior to the 2010 Amendment to the Racing Act 2002 - whether s 429 of the Racing Act
4 2002 applied to the agreement - whether, following the 2010 Amendment, by virtue of s 429 of the Racing Act 2002, there were no longer two parties to the agreement such that it ceased to exist. CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - where second defendant allegedly made oral representations - where the plaintiffs plead that these representations constituted an offer - where the plaintiffs plead there was acceptance of certain terms, some of which are not easily related to the alleged offers - whether offer and acceptance occurred such as to give rise to a contract Acts Interpretation Act 1954 (Qld) s 36 Parliament of Queensland Act 2001 ss 8, 9 Racing Act 2002, ss 33, 34 428, 429, 430 Racing and other Legislation Amendment Act 2010 Trade Practices Act 1974 s 52 Uniform Civil Procedure Rules 1999 rules 293, 146(1)(f) Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, considered Attorney-General v Quin (1990) 170 CLR 1, considered British Railways Board v Pickin [1974] AC 765, considered Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710; 1 Bell 252; considered Gangemi v The Western Australian Farmers Association [2002] WASC 229, followed Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308, followed Ingram v IRC [1997] 4 All ER 395, 423-424, considered Kildrummy (Jersey) Ltd v IRC 1991 SC1, 4, considered Labrador Co v R [1893] AC 104, considered Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, considered Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, considered Prebble v Television New Zealand [1995] 1 AC 321, considered
5 R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, followed Rowley v O Chee (2000) 1 Qd R 207, considered COUNSEL: M Stewart SC with A Duffy for the plaintiffs/respondents S Doyle SC with J Horton for the defendants/applicants SOLICITORS: Schweikert Harris Lawyers for the plaintiffs/respondents Clayton Utz for the defendants/applicants OTHER: P Davis SC with S del Villar appearing by leave and instructed by the Clerk of the Parliament of Queensland [1] Prior to the Racing and other Legislation Amendment Act 2010 (2010 Amendment), harness racing in Queensland was controlled by the first plaintiff (QHRL). The Albion Park Raceway (Albion Park) was owned by QHRL and Greyhounds Queensland Limited (GQL). As a result of the 2010 Amendment, control of harness racing and ownership of Albion Park passed to the first defendant (RQL). In the action, the plaintiffs allege that RQL is bound by an agreement relating (amongst other things) to the retention of Albion Park for harness racing (Integration Agreement); and that Albion Park is held on trust. The relief sought by the plaintiffs includes orders to enforce the Integration Agreement and the trust. [2] The defendants contend that the determination of questions said to be questions of law will result in the summary disposal of the action. The Speaker of the Queensland Legislative Assembly has provided submissions in relation to some of those questions. Background [3] For many years, thoroughbred racing, harness racing and greyhound racing (together the three codes) have been the subject of some form of statutory control. The current legislation is the Racing Act 2002 (Queensland). [4] The legislation has made provision that each code be subject to the direction of a control body. Prior to the 2010 Amendment, for thoroughbred racing, this was Queensland Racing Limited (QRL); for greyhound racing, GQL was the control body; and for harness racing, QHRL held the corresponding position. [5] UNiTAB conducted off-course wagering for races of the three codes. It generated income, some (at least) of which was to be made available to the three codes. To that end, Queensland Race Product Co (Product Co) was established, and entered into an agreement with UNiTAB to provide rights and information for UNiTAB to conduct race betting, in return for a fee (the agreement is referred to as the Product and Program Agreement). QRL, GQL, and QHRL (former control bodies) were
6 parties to an agreement (Intercode Agreement) relating to the sharing of revenue derived under the Product and Program Agreement. [6] Races are conducted by racing clubs, such as the second, third and fourth plaintiffs. [7] By late 2009, discussions of a proposal to integrate the functions of the former control bodies had commenced. This was to be achieved by the creation of a single control body for animal racing in Queensland (sometimes referred to as the amalgamation of the control bodies). Those discussions continued in the early months of 2010. The plaintiffs allege that those discussions gave rise to the Integration Agreement. [8] RQL was incorporated on 25 March 2010. The plaintiff alleges that it ratified the Integration Agreement. [9] On 13 April 2010, the Bill resulting in the 2010 Amendment was introduced into Parliament by the Minister responsible for the Office of Racing (Minister), and was passed on 20 May 2010. The plaintiffs contend that had amalgamation not been supported by QHRL, the Minister would not have taken steps to prepare and introduce the Bill, and no such legislation would have been enacted. [10] In December 2010, RQL announced a proposal to sell Albion Park. These proceedings were then commenced. The allegations made, and the relief claimed, are discussed in greater detail later in these reasons. It is at this point convenient to note that the plaintiffs seek to enforce the Intercode Agreement as well as the Integration Agreement. They also allege that the sale of Albion Park would be beyond the powers conferred on RQL by the Racing Act. The plaintiffs also allege breaches of, and claim relief under, the Trade Practices Act 1974 (Commonwealth). [11] On 16 August 2011, the defendants filed an application for summary disposal of the plaintiffs claim. An order was made that the defendants file and serve a list of questions of law, the determination of which was said to resolve that application; and an application for the separate determination of those questions in advance of the trial of the proceeding. Further orders dealt with the filing and serving of contentions by the parties; and the adjournment of the application for summary disposal to the Civil List, resulting in the present hearing. The application for an order for the separate determination of questions included six questions, which might be identified shortly as follows: (a) The Intercode Agreement questions (questions 1A and 1B); (b) The Integration Agreement question (question 2); (c) The trust question (question 3); (d) The limitation on power question (question 4); (e) The non-justiciability of the Trade Practices Act issues (question 5). [12] At the hearing, the parties to the proceedings accepted that the Intercode Agreement questions could not yet be determined. Their submissions were directed to the remaining questions. The defendants sought summary judgment under r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR); or alternatively an order striking out the plaintiff s current statement of claim. The Speaker of the Queensland Legislative Assembly was granted leave to appear. Submissions were made on his behalf as to the effect of the 2010 Amendments; and in relation to the non-justiciability of matters raised in the statement of claim.
7 [13] Notice had been given to the Attorneys-General for the Commonwealth and the States of a potential inconsistency between the provisions of the Trade Practices Act which make available relief for a breach of s 52 of that Act, and ss 8 and 9 of the Parliament of Queensland Act 2001 (Queensland). Submissions were made on behalf of the defendants and the Speaker on this topic. However, the plaintiffs did not contend that there was inconsistency between those provisions. I do not consider it necessary to discuss that question. Because it was said that determination of the non-justiciability issues in favour of the defendants would also determine at least some of the other questions, it is convenient to commence with question 5. Question 5: non-justiciability of the Trade Practices Act Issues [14] When a person claims damages under s 82 of the Trade Practices Act, the claim being based on misleading conduct of the kind referred to in s 52 of that Act, then the availability of relief depends upon the plaintiff establishing that it suffered loss or damage by that conduct. Similarly, when a plaintiff claims relief under s 87 of that Act on the basis of misleading conduct, the availability of relief depends upon the plaintiff showing that it has suffered, or is likely to suffer, loss or damage by that conduct. The loss relied upon by the first plaintiff includes the diminution in value of its assets, one being the interest it had in Albion Park. The loss relied on by the second plaintiff is the diminution in value of its tenancy of Albion Park. The loss alleged by the other plaintiffs is the reduction in prize money for harness races, and the reduction in money available to promote that form of racing, as a result of QHRL no longer being the control body for harness racing in Queensland. All of these losses are consequences of the 2010 Amendment. They are said to be caused by the misleading conduct alleged, by reason of the fact that representations were made, and adopted by RQL, that Albion Park would not be sold, but would remain the long term home and racing headquarters for harness racing, that a substantial sum of money would be used to upgrade Albion Park; and that income under the Product and Program Agreement would continue to be distributed in accordance with the Intercode Agreement. Had the representations been disavowed, so it is alleged, then the plaintiff would not have supported the proposed integration; the Minister would not have taken steps to introduce the Bill, and no legislation such as the 2010 Amendment would have been introduced. These allegations identify the causal link between the loss relied upon by the plaintiffs, and the misleading conduct which they allege. [15] For the defendants, it was submitted that, essential to establishing the claim for relief, were allegations that, had the first plaintiff not supported the proposed amalgamation of the control bodies, the Minister would not have introduced the Bill; and that the introduction and passage of the Bill, resulting in the 2010 Amendment, is the basis for the damage relied upon by the plaintiffs. They referred to what is described as a wider constitutional principle, identified in Prebble v Television New Zealand 1 as being that the courts and Parliament are both astute to recognise their respective constitutional roles. They submitted that one consequence of this principle is that the courts will not inquire into the conduct which has resulted in the enactment of a statute by the legislature. 2 They also relied 1 2 [1995] 1 AC 321, 332. Relying on Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308, 322-323; Labrador Co v R [1893] AC 104, 123; Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl
8 on s 8 and s 9 of the Parliament of Queensland Act. Submissions were made on behalf of the Speaker substantially to the same effect, relying generally on the same authorities. [16] It was submitted on behalf of the Speaker that the statement of claim seeks to impugn the 2010 Amendment, a course precluded by the constitutional principle referred to earlier. Reference was made to Rowley v O Chee 3 for the proposition that the freedom of proceedings in the Legislative Assembly is impeached if the proceedings are hindered, or detrimentally or prejudicially affected. [17] The plaintiffs submitted that their claims did not impugn the validity of the 2010 Amendment. They submitted that the authorities relied upon in their opponents submissions were authorities dealing with an attack on the validity of legislation, by reason of the conduct which led to its enactment; or were cases where that conduct was said to justify a court in not giving effect to the legislation. The plaintiffs submitted that they accepted the effect of the legislation, including the divesting of the interest in Albion Park formerly held by QHRL and GQL, described as an essential ingredient of the claim. It was submitted that the claim did not require examination of any conduct of a person in the person s capacity as a member of the Parliament. Accordingly, neither the wider constitutional principle, nor ss 8 and 9 of the Parliament of Queensland Act, prevented the plaintiffs from making the claim. [18] Sections 8 and 9 of the Parliament of Queensland Act are as follows: 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. 9 Meaning of proceedings in the Assembly (1) Proceedings in the Assembly include all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee. (2) Without limiting subsection (1), proceedings in the Assembly include (a) giving evidence before the Assembly, a committee or an inquiry; and (b) evidence given before the Assembly, a committee or an inquiry; and (c) presenting or submitting a document to the Assembly, a committee or an inquiry; and 3 & F 710; 1 Bell 252; British Railways Board v Pickin [1974] AC 765, 787, 790; and Gangemi v Western Australian Farmers Federation (Inc) [2002] WASC 229. (2000) 1 Qd R 207, 222-223, 227.
9 (d) a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry; and (e) preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c); and (f) preparing, making or publishing a document (including a report) under the authority of the Assembly or a committee; and (g) a document (including a report) prepared, made or published under the authority of the Assembly or a committee. (3) Despite subsection (2)(d), section 8 does not apply to a document mentioned in subsection (2)(d) (a) in relation to a purpose for which it was brought into existence other than for the purpose of being tabled in or presented or submitted to, the Assembly or a committee or an inquiry; and (b) if the document has been authorised by the Assembly or the committee to be published. (4) If the way in which a document is dealt with has the effect that (a) under an Act; or (b) under the rules, orders, directions or practices of the Assembly; the document is treated, or accepted, as having been tabled in the Assembly for any purpose, then, for the purposes of this Act, the document is taken to be tabled in the Assembly. (5) For this section, it does not matter what the nature of the business transacted by a committee is or whether the business is transacted under this Act or otherwise. [19] Section 8 precludes a court from questioning proceedings in the Legislative Assembly. Section 9 makes it clear that, for the purposes of s 8, presenting or submitting a document to the Legislative Assembly, and preparing a document for the purpose of presenting it to the Legislative Assembly, are both proceedings in the Assembly. The same section also extends the effect of s 8 to all acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly. [20] The plaintiffs claim for relief under the Trade Practices Act depends upon establishing that, in deciding to introduce the Bill which resulted in the 2010 Amendment, the Minister was influenced by the support of QHRL. In my view, that amounts to questioning the preparation and presentation of a document to the Legislative Assembly, involving, as it does, an investigation of the motives of the Minister for doing so. In my view, s 8 prohibits the court from undertaking such an investigation. 4 4 See Gangemi v Western Australian Farmers Federation (Inc) [2002] WASC 229 at [15].
10 [21] In R v Toohey; ex parte Northern Land Council 5, Mason J said that it was incontestable that the courts will not examine the motives which inspire members of Parliament to enact Laws. While his Honour did not identify the basis for that statement, it seems to me to represent (at least in part) the effect of ss 8 and 9 of the Parliament of Queensland Act. If the view I have taken of the effect of these sections is too wide, nevertheless I consider that the pursuit of the claim under the Trade Practices Act is precluded by constitutional principle, consistent with the statement of Mason J. 6 [22] Since this is sufficient to determine question 5, it is unnecessary to give further consideration to the application of the wider constitutional principle referred to, or the other authorities relied upon by the defendants and the Speaker. [23] It follows that the allegations in the statement of claim which relate only to the claims for relief under the Trade Practices Act should be struck out. I shall hear further submissions as to the orders which should be made as a consequence of these reasons. Question 3: the trust question [24] It was conceded on behalf of the plaintiffs that if the non-justiciability question were determined adversely to them, the same result would follow for the trust question. Accordingly, the allegations in the statement of claim relating solely to this question should be struck out. Again, I shall hear further submissions from the parties as to the appropriate orders. Question 4: the limitation on power question [25] Paragraph 36 of the statement of claim alleges that none of the powers conferred on RQL by the 2010 Amendment includes a power to deal with Albion Park in a way inconsistent with its being made available for the purpose of the construction of a new grandstand, and its use for harness racing until at least 30 June 2040. The allegation was elaborated on in the plaintiffs response to the defendants contentions in respect of their questions of law, and their submissions at the present hearing. The allegation is based on the proposition that the parties entered into the Integration Agreement; and that s 430 of the Racing Act recognises this. The plaintiffs contended in their written submissions that the question depends upon a construction of the statute; and that it should be decided only after the content of the agreement has been determined. [26] For the defendants, it was submitted that s 430 does not limit the broad powers conferred on RQL by the 2010 Amendment; and that the conduct of RQL which the plaintiffs challenge is the exercise of a statutory power which cannot be fettered by contract or estoppel. 7 5 6 7 (1981) 151 CLR 170, 225. See Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308, 322-323, where a claim for damages for negligence failed, because it required the court to determine whether the passage of an Act of Parliament was a reasonable and natural consequence of the alleged breaches of duty by the defendant. Relying on Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208, 210; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105, 107; see also Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, 74-76; Attorney- General (NSW) v Quin (1990) 170 CLR 1, 17-18.
11 [27] It is necessary to make some brief observations about the effect of the Racing Act, after the 2010 Amendment. Section 428 cancelled the approvals given under the Act to the former control bodies, including QHRL. The same section required the Minister to give an approval to RQL to be the control body for the three codes. Thus, for each of the three codes, RQL became the relevant control body. Section 33 identified the function of a control body as managing the relevant code; and conferred on a control body the powers necessary for performing its function, and all other powers necessary for discharging the obligations imposed on it under the Racing Act. A number of specific powers were conferred by s 34, including a power to assess the performance of venues, to ensure that they continue to be suitable to be licensed; to prepare and implement plans and strategies for developing, promoting and marketing the commercial operations of a code; and to make decisions about venue development and other infrastructure relevant to a code. It is inherent in the plaintiffs contentions that the powers conferred on RQL as a consequence of its appointment as the single control body for the three codes would extend to the sale of Albion Park, and decisions about the expenditure of money on its development. [28] It is apparent from a reading of s 430, that this section recognises that directors of former control bodies entered into, or may have entered into, an agreement for the enactment of statutory provisions having the effects set out in s 430. [29] It seems to me that for the purpose of determining question 4, it may be assumed that the agreement relied upon by the plaintiffs included provisions of the kind identified in s 430. If the agreement did not do so, then s 430 would not support their contention. [30] Section 430 may be thought to have two purposes. One is to provide protection to the directors of former control bodies that entered into an agreement of the kind identified in that section. Another might perhaps be to ensure the validity of such an agreement. [31] However, the section does not, in terms, purport to limit the powers conferred on RQL. Nor, it seems to me, should it be read as having, by implication, that effect. Recognition of the existence of an agreement usually carries with it recognition that the agreement might not be performed. The 2010 Amendment imposed specific contractual obligations on RQL, under s 429. It would be unusual to think that a provision such as s 429 had the effect of excluding from the powers of RQL, a power to do an act, otherwise within power, but which was in breach of a contract by which it became bound under s 429. Section 430 does not expressly recognise any obligation imposed on RQL by the agreement referred to in the section. It seems to me, therefore, to be a long step to regard the section as an implied limitation on the general powers conferred on RQL under the Racing Act. [32] The submissions made on behalf of the plaintiffs did not explain how the determination of the content of the Integration Agreement might affect the answer to question 4. It seems to me that the question can only arise on the assumption mentioned earlier. I do not see that the answer to the question could be affected by a decision about the content of the Integration Agreement (save that a decision adverse to the plaintiffs may make determination of the question unnecessary).
12 [33] In my view, on the assumption that there was an agreement to which QHRL was a party, for the enactment of provisions of the kind identified in s 430, it is nevertheless not beyond the power of RQL, as a result of it being appointed the control body for the three codes under s 428, to act in a way inconsistent with Albion Park being retained for the purpose of constructing a new grandstand, and for its use for harness racing until at least 30 June 2040. Again, I propose to hear further submissions about orders to be made as a consequence of this determination. Question 2: The Integration Agreement [34] The question formulated by the defendants was whether, assuming that the Integration Agreement existed, it ceased to have force and effect on about 1 July 2010. The underlying contention of the defendants was that by virtue of s 429, the benefit and burden of the agreement vested in RQL, with the consequence that the agreement ceased to exist. On the application, the defendants also submitted that no agreement was formed, because the pleaded offer and the pleaded acceptance did not correspond. [35] For the plaintiffs, it was orally submitted that there was correspondence between the pleaded offer and the pleaded acceptance. They submitted that the potentially relevant provision of s 429 is subsection (1)(b); but that properly construed, it did not apply to the Integration Agreement. [36] The manner in which the statement of claim pleads the formation of the Integration Agreement is not beyond criticism. Thus it pleads oral representations by the second defendant (in paragraph 7); an interpretation of those representations (in paragraph 7A); and that the representations so interpreted constituted an offer incorporating the representations as interpreted, as things promised if QHRL agreed to the integration (in paragraph 7B). It pleads that this offer was made by the second defendant on his own behalf or alternatively on behalf of RQL (at a time prior to its incorporation). It later pleads that Mr Lette, director, class B shareholder and Chairman of the first defendant, informed the Minister that QHRL supported the proposal to create a single control body. It pleads that this amounted to acceptance of the offer; and, in the same paragraph (paragraph 23), terms of the agreement, some of which are not easily related to the offer. [37] In those circumstances, it seems to me the pleading of the agreement is unsatisfactory. Part of the difficulty arises from the fact that paragraphs in the pleading contain multiple allegations (see r 146(1)(f) of the UCPR). Moreover, the pleading suggests that there is an act which amounts to the acceptance of the offer; but then alleges that the resulting agreement includes terms not pleaded as part of the offer, without the identification of any legally appropriate basis for doing so. [38] Accordingly, it seems to me that the allegations which relate to the making of the Integration Agreement should be struck out; but I consider that there is some prospect that the plaintiffs could plead the making of the agreement in a way which avoids these difficulties. However, it remains necessary to consider the effect of s 429 of the Racing Act. [39] Section 429 of the Racing Act is as follows: 429 Assets and liabilities etc. (1) On the commencement
13 (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. [40] The defendants submissions depend upon an extension of what was described by Millett LJ as the two-party rule, namely, that a person cannot make a contract with himself or herself. 8 It is inherent in the defendants submissions that this rule has the consequence that, where a contract is made between two parties, and the rights and obligations of one under the contract are assigned to and taken on by the other, there ceases to be an effective contract. The plaintiffs have not challenged that proposition. [41] The effect of the plaintiffs submissions is that s 429 does not affect the Integration Agreement. They submitted that paragraph (1)(b) of the section is the paragraph dealing with contracts; and paragraph 1(a) deals with other rights and obligations; for otherwise paragraph (1)(b) would add nothing to paragraph (1)(a). They then submitted that paragraph (1)(b), making reference to the new control body as well as another entity and the other entity, is directed to agreements and arrangements other than an agreement or arrangement between RQL and a former control body. More generally, they submitted it was not part of the purpose for which s 429 was enacted, to affect an agreement between a former control body and RQL. They referred to s 430, which (as has been seen) contains some recognition of an agreement such as the Integration Agreement. [42] For the defendants, it was submitted that paragraph (1)(b) applied to the Integration Agreement. It was also submitted that paragraph (1)(a) applied to that agreement, relying on the definition of asset found in s 36 of the Acts Interpretation Act 1954 (Qld). That definition includes all types of property, which is defined in the same section to include things in action. It was then submitted that paragraph 1(b) nevertheless had a function to perform, namely, specifying the parties to an agreement or an arrangement to which a former control body had been a party prior to the 2010 Amendment. It was submitted that the purpose of s 429 and related provisions of the 2010 Amendment was to achieve a seamless and complete transition of assets and liabilities from the former control bodies to RQL. [43] It seems to me that a purpose of s 429, apparent from its terms, is to preserve existing rights, obligations and agreements of a former control body. The position for which the defendants contended seems to me to be contrary to that purpose. 8 Ingram v IRC [1997] 4 All ER 395, 423-424, see also Kildrummy (Jersey) Ltd v IRC 1991 SC 1, 4.
14 Moreover, if a contractual right is to be destroyed by a statute, I am inclined to think that that intention should be clearly expressed in the statute. 9 There is also some support for the plaintiffs submissions to be found in s 430. There would seem to me to be some discord, rather than harmony, between a provision of a statute which allows directors to make an agreement, and a provision of the same statute which destroys such an agreement. Acceptance of the plaintiffs submissions does not seem to me to be inconsistent with the general conferral of powers and discretions on RQL by other provisions of the Racing Act. As has been seen, the Act preserves previously made agreements and arrangements. [44] In my view, s 429 of the Racing Act does not have the effect that the Integration Agreement (assuming its prior existence) ceased to be operative. Conclusion [45] I would answer questions 2, 3 and 4 in the negative. [46] I would answer question 5 as follows: The raising and the agitation at trial of the issues relating to a cause of action based upon s 52 of the Trade Practices Act 1974 (Cth) is precluded by s 8 of the Parliament of Queensland Act 2001 (Qld). [47] I would be prepared to strike out those parts of the statement of claim which relate only to questions 3, 4 and 5. It seems to me that the present pleading of the formation of the Integration Agreement should be struck out. I would be prepared to hear further submissions from the parties about the terms of these orders; and about any further orders to be made, including for costs. 9 On the defendants argument, these rights are property. Alternatively, they may be common law rights: see French CJ, What were they thinking? Statutory Interpretation and Parliamentary Intention Sir Frank Kitto Lecture, University of New England, 23 September 2011.