ATC broaches $10m question as Supreme Court defers hearing ahead of Racing NSW appeal

Claims Racing NSW owes the Australian Turf Club almost $10 million in unpaid wagering monies are yet to be tested with the NSW Supreme Court deferring the case on Friday.

Allegations of unpaid TAB distributions to the ATC by the thoroughbred regulator emerged in court when the race club’s legal representative, Scott Robertson SC, sought to amend the injunctive relief granted to it by Justice Francois Kunc in February.

The ATC submitted to the court that Racing NSW is withholding $9,449,910.86 from TAB wagering revenue that is overdue.

The two parties returned to court nine days after Justice Kunc had ruled that Racing NSW’s decision to appoint an administrator to run the ATC in December was invalid.

Justice Kunc found in the ATC’s favour on March 11, declaring that Racing NSW’s actions of placing it into the hands of an administrator was a “decisive intrusion into the affairs of a race club”.

Racing NSW said last week that it would challenge the Supreme Court, warning the outcome threatens its capacity to support the state’s 120 race clubs and “50,000 participants”.

But it was revealed before Justice Kunc on Friday, when the ATC was challenging Racing NSW’s right to information regarding catering costs and an investigation into alleged theft from hospitality spots at its Sydney racecourses, that the regulator had yet to make a formal application for leave to appeal the judgment. 

Justice Kunc said the NSW Court of Appeal had the ability to hear an appeal in the week of April 13 or April 20 if Racing NSW intended to proceed with that course of action.

“As much as I would like to take up residence at a racecourse and be available to deal with any disputes, that’s just not an efficient use of your time or mine,” Justice Kunc told Racing NSW’s legal team.  

“But quite seriously, this cannot be allowed to continue to take up the time of the List or the Court where it’s clear what this dispute really needs to have happen to it, which is for, and if I’m wrong, your client’s got an administrator in place and all these other disputes no doubt will fall away.”

For that reason, Justice Kunc deferred the current legal action and set aside May 1 as a possible date to hear the case.

“I think the better course is that these proceedings go to sleep while you (ATC) move your attentions to the Court of Appeal,” he said.

In the dispute over catering and accusations of theft at Sydney’s racecourse venues, which came to light in February, Racing NSW, via a letter to the ATC, questioned the club’s handling of its catering business and an internal investigation into theft allegations.

Racing NSW demanded that the ATC divulge details around its broader hospitality business, which the club’s board then took umbrage at and sent the matter to court.

Racing NSW had made a request for information based upon section 29B of the Thoroughbred Racing Act, which allows it to give direction in writing to a registered race club to provide specified documents or furnish specified information to Racing NSW.  

Under the Act, failure to comply could result in civil penalties or the club’s deregistration.

The Australian Turf Club’s injunction application, heard before Justice Kunc in February, contended that the Act only applied to matters of racing, not to the club’s catering or hospitality functions.

The matter had been paused while the ATC’s challenge to the appointment of an administrator was to be heard a month later, which it subsequently won through Justice Kunc’s findings of “invalid” application of the Thoroughbred Racing Act.