ATC presses case to defy administration as Supreme Court case begins

The Supreme Court will continue hearing Racing NSW’s bid to place the Australian Turf Club (ATC) into administration until at least Monday, after ATC barrister Scott Robertson SC failed to complete his submissions on the opening day.

The first day saw Robertson outline the ATC’s reasoning for seeking to stop Racing NSW from appointing an administrator under the Thoroughbred Racing Act.

Justice Kunc heard that the ATC is arguing the regulator has exceeded its powers on three grounds.

The first is that Racing NSW is acting with an improper purpose in appointing an administrator on the basis of its concerns regarding the club’s commercial affairs. The ATC argues that those matters aren’t within the body’s powers, as they extend beyond its express role in regulating horse racing.   

Among Robertson’s arguments was that the initial intention of the Thoroughbred Racing Act was to separate the commercial and integrity functions of race clubs but not make one subordinate to the other.

Effectively, he is trying to argue that just because Racing NSW is a regulator, it doesn’t mean it can manage what goes on in matters in the race club outside of racing matters.

The second ground put forward was that Racing NSW acted with legal unreasonableness in saying it could withdraw support, including its guarantee of the ATC’s debt facilities, in its dealings with the club during the show cause process.

In its third argument, the ATC submits that Racing NSW lacks the power to appoint an administrator because such a move would contravene the Corporations Act; therefore, any other capacity the regulator had to appoint an administrator was superseded by the Mergers Act under which the ATC was formed.

Racing NSW’s legal counsel Michael Henry asked at the end of the session if there would be consideration given to extending the case into Monday, given the level of detail involved. Justice Kunc confirmed that it would be acceptable, ensuring the case will most likely stretch for at least another day.

Three of the four remaining members of the ATC board, chairman Tim Hale, vice chair Caroline Searcy and Annette English were in court as was the ATC’s acting chief executive Steve McMahon.