O'BRIEN v. STEAD.

Star (Christchurch), Issue 4729, 22 August 1893, Page 3

O'BRIEN v. STEAD.

Proceedings in the Supreme 1 Court. i THIS DAY. ' fcThe Canterbury Jockey Club case came ■ on for hearing before his Honor Mr Justice Dennibton at tho civil sittings this morni ing, in connection with the interim injuuei tion granted by his Honor restraining the , Stewards from hearing and determining , the objections made by Major George. Mr Harper, with him Mr Lane, for' tho \ plaintiff, Mr Fisher for defendant, and Mr , Stringer for Major George. ; Tbe present case was an application by : the defendant to dissolve the injunction. ] The facts of the cßse were shown by the statement of claim which set forth that Daniel O'Brien, the plaintiff, was a trainer and owner of horses for racing purposes aud the de- ' fendant, G. G. Stead, fche Treasurer of the ' Christchurch Jookey Club. In 1890 thw said Club issued a programme of races to ' be run at the autumn meeting of tho Club in 1893, and therein was an item "Tlie Challenge Stakea of 2000 soys, the nominator of the winner to receive 100 soys j the owner of the second horse, 200 j and fche third 100 soys out of the stake." Plaintiff owned a horse called Loyalty, and had entered it for this race which it had won. The Bum of £1520 was paid to the plaintiff by the defendant aB representing the total amount of money which tbe Slaintiff was entitled to receive after educting the sum of £100 as mentioned in the said programme. No account was rendered by the defendant in pursuance of the Eules of Eacingto the plaintiff showing the total amount of moneys paid to and received by defendant on account of the stakes. The plaintiff had demanded from the defendant payment of ail such stake and forfeit, and the defendant had refused to pay any further sum than that already paid. The plaintiff believed that the defendant had still in hands, or under his oontrol, a large sum of money, received,; by him as and for stakes and forfeits in the said race, far exceeding the sum of £2000 mentioned in the programme, and he submitted that under the Bules of Bacing he waß entitled to have an account rendered to him by the defendant, and to receive from the defendant payment of all moneys paid by the defendant for stakes i and forfeits in the race, subject onlyjto the j proper deductions. { Affidavits were filed in aupport of the J claim. j The statement of defence admitted the poaition of the defendant, and denied that since the first action brought against him, G. G. Stead had procured an objection to be lodged against tho plaintiff's horse ' by the owner of the second horse or any other person. The defendants relied on Bule 25 of the Bules of Bacing, whereby the Stewards were given power to make all suoh arrangements for a meeting as they chose. They also relied on Bules 20, 32, 126, 129, 131, (providing that all protests are to be determined by the Stewards) and 137. £1520 was the total amount payable to the winner of the Challenge Stakes. The defendants held that until the objection raised by Major George had been settled by the Stewards it could not be known . whether Loyalty had been disqualified from running in the race or not. The Stewards had a peouliar and exclusive jurisdiction to hear and determine the said objection, and the plaintiff ought not to be permitted to use the authority of the Court to restrain them. The defendants submitted that G. G. Stead was merely a ! stakeholder, and that the plaintiff could re- ] cover no money until the objection of Major George had been heard. The plaintiff was on the unpaid forfeit list. The affidavit of G. G. Stead said that he atiU believed the plaintiff's horße was disqualified, and as Treasurer of the Canterbury Jockey Club he had written and demanded a return of the stake. The plaintiff was in arrears and on the forfeit lißt. The race had been run under the distinct condition that all objections should be decided by the Stewards present at the race. Loyalty had been entered by the plaintiff, who was also the ojvner of Launceston, Tamar and Beflection for the said race. The objection lodged by Major George should be heard and determined by the Stewards before the money could be paid which was in the hands of the stakeholder. Daniel O'Brien, in hia replying affidavit, recited the full facts of his connection with the case, and said the statement of defence showed that the objection had already been prejudged, and that it had been found, as a facfc, that he was on the unpaid forfeit list. He submitted he was entitled to come to Court as long as the Stewards had any interest in the matters involved in the objection, and that their jurisdiction was ousted from such objection. His reliance waa greatly based on the circular issued by the Canterbury Jockey Club, in which it invited horse-owners to compete in the Challenge Stakes, and which went on tosay :— " It will doubtless be borne in mind that the buyer becomes responsible for the forfeit, so that the race will in no way become a tax upon breeders, whilst it will undoubtedly increase the value of their stook." Mr Fisher said before proceeding with the points he would like his Honor to recall to mind the first action brought by O'Brien against Stead for the amount of the race. On that case investigation had proved O'Brien to be in default; and Major George, the owner of the Becond horse, had entered a protest. He was, of course, very properly biassed. The Stewards proposed to look into the objection, bnt they were restrained by the order of the Court, because O'Brien had said that they had an interest. The Stewards were representatives of sport, and had to look to the interests of the whole of the people dealing with sport, otherwise they would not care whether or not the injunction stood. Many of these Stewards practically knew nothing of the case, and were perfectly unbiassed and unprejudiced. They were gentlemen of the highest character, whom his Honor would have the greatest pleasure in having aB a special jnry. The present proceedings would tend to unpopularise racing. If hia Honor had the opinion that the stewards were men of standing and honour he would destroy the injunction. He (Mr Fisher) thought he could show a very strong case why the injunction Bhould be removed. When the plaintiff came first into court he Bhould have shown his whole case; this he had not done. The injunction should, therefore, go. In authorities (cited) on "Injunctions" it was Btated that all the facts should be brought into the ease when first stated. An injunction could be dissolved if the Court considered that it had been improperly giant ad, or if misrepresentation could be shown in the i affidavits. Another ground for dissolving an injunction was if further facts were , deduced throwing more light ou the caee. ■ There were a string of cases in which . these grounds had been held authoritai tively. O'Brien had failed to bring to the , Court matters having a most important i bearing on the case, and which must have . influenced the mind of the Court towards , refusing the injunction. He ought to have * Bhown to the Court the rules giving the i stewards jurisdiction after the race. His Honor said that D. O'Brien had set . forward facts which, he said, ousted their jurisdiction. _ Mr Fisher said O'Brien had drawn atten- [ tion to certain rules and had left others ! alone. He should have put in Eule 126 i which would have shown that Major • George's objection was in accordance with i the Bules. He should also have put in fchafc . part of the official programme wherein it , was stated that all disputes were to be > settled by the stewards present at the race. , He did nofc bring* forward the facfc of his » reception of that programme, and he had t withheld ofcher points bearing on the - matter. He had not shown whether or not I he was a defaulter to the Club. ! His Honor said he had admitted it, as he r had never denied ifc. 3 Mr Fisher said O'Brien had not disclosed : to the Court his dispute aboufc the payi 1 ment. ? His Honor said the Club had refused to 3 1 take the man's money uuder protest, and j had held over him the strong screw of ctfs-

; qualification. The Club was about the only , party who would not accept money under protest. The plaintiff had had to withdraw his protest in order to save himself trom disqualification. He (His Honor) did not say this was done rightly or wrongly. The Club kuew that the paymont of the money was essential to the removal of the disqualification, and on that removal tho plaintiff depended for his life as a racing i_a_. He (Hij Honor) would be Boiry to admit that O'Brien had paid without protest. Mr Fisher continued, and submitted that : the Court had been entitled to receive in tbo firet placo every item in connection with the ciise. Every fact and point now brought forward should have boen ehown at the time of the application for the . injunction. Hia Honor said these disclosures were necessary for the defence of this pesenfc caae. O'Brien could nofc have been expected to anticipate the attitude of the other side. His contention was that all that took place after the race had no bearing on his first application. Waß the contention of Mr Fisher that O'Brien should have presumed and anticipated the present application ? Mr Fisher said he submitted that O'Brion should, on hiß statement of claim, have shown all the alleged facts instead of only the one that tbe Stowards were biassed. He further submitted tbat the ground of obtaining the injunction, tbat "Mr Stead had obtained a protest against the horse," was totally false, so therefore the injunction should not stand. Moreover O'Brien had misrepresented not only Mr Stead, but the Stewards as well. His Honor would, of course, require more evidence that Mr Stead had procured a protest against the horse. His Honor said he was not trying the oase, but merely hearing an application in regard to an ad interim injunction. The evidence in the case would be for a Jury. Mr Fisher said that in stating that the Stewards had an intereet in the protest, and that they ..were going to use tha 1 , interest, O'Brien was misrepresenting them. Thia had been the chief ground on whioh the injunction had been claimed, and the defendants now submitted that even if the Stewards had had an interest in the protest, it did not invalidate their jurisdiction. They were not striotly arbitrators, and had certain powers given to them whioh enabled them ; to adjudicate in all cases. This was upheld j by several cases (cited), and the race in question had been got np and rnn under their recognised authority and jurisdiction, and under the distinct condition that they trere to oonsider all disputes. Mr Fisher then quoted caseß showing that Courts of Law had held that by the conditions under which races were | run the decision of the stewards was final. i In nearly all the oases reported in the law books the stewards -had interests in the ! race, bat that fact had never yet been held |tobe an objection. The second point he I would raise was that the plaintiff ! must make out snch a case in support !of his application for an injunction ;as to enable a Court of Law to see and consider all the points. O'Brien | had not made out Bueh a case. For this point there were also authorities. The tacts pnt forward in support of the application for the injunction had to be sufficient to snpport an action at law. If the caße could be more satisfactorily tried by the Court than by the Stewards, then an injunction was good, bnt not otherwise. His Honor said he did not see that it wasa case to be more satisfactorily tried by the one than by the other. It was a matter of right. Mr Fißher further submitted that it had been held that the of the Court should not be taken up by racing disputes, and that the Stewards should- be allowed to settle all the matters. He cited several casea wherein the Judgea had expressed the view that the Legislature had framed | the Bacing and Betting Acts so as to prevent the time of law Courts being taken up by absurd quarrels over bets and stakes. O'Brien was, he submitted, excluded by his own conduct from asking the assistance of the Court : he was claiming to recover the " stakes and forfeits " By the conditions of the programme and Eules 25, 28, 32, 136 and 131, ifc was clear that O'Brien had entered his horses on tbe basis that all protests, &c, should be decided by the stewards. It was known who the stewards were, and if he had thought them dishonorable men and not likely to give him justice, he could have objected to them. Bnt he had accepted them and run his horse under the rules, and when he found that they did not suit him he came to the Courts of law. Theief ore the Court should not assist in setting aside the rules when the) action of a party had been such as O'Brien's had. There were authorities to uphold this view. If the stewards were not willing to act, or if their authority was gone, then the Courts of Law could be asked for assistance, but nob otherwise. [Left sitting.]