Earlier today in Australia, Federal Court judge Alan Robertson ruled against the plaintiff, Bruce McHugh, and upheld the “live cover only” restriction for the breeding and registration of Thoroughbreds.
McHugh had filed suit against the Australian Stud Book, Australian Jockey Club, and Thoroughbred Breeders Australia more than three years ago, and the judge’s decision came almost a year after the conclusion of arguments on the substance of the suit.
The rationale behind McHugh’s suit was that the live cover provision was a restraint of trade that effectively prevented participation of many parties both in standing stallions and in breeding racehorses. In his 375-page decision, however, Robertson judged that McHugh had failed to make the case due to a lack of evidence.
A news story from news.com Australia stated that Robertson ruled that “McHugh had failed to show the court the AI rule was a restraint of trade, because he [Robertson] accepted it was a reasonable provision when it was established ‘many decades ago to prevent the attribution of incorrect paternity to a thoroughbred horse.’”
The ruling caused an outburst of commentary from the spokesmen of the organizations against whom McHugh had brought suit.
Michael Ford, the keeper of the Australian Stud Book, said that the Federal Court came to the “right decision, and we are pleased that the effect of the court’s decision is to protect the integrity of the Stud Book and Thoroughbred breeding in Australia.
“Because of the global market for breeding and racing of Thoroughbreds, and the rules on artificial breeding in other jurisdictions, the introduction of artificial insemination into Australian Thoroughbred breeding would have had serious consequences for our industry.
“This is a comprehensive victory for the hundreds of thousands of Australians who derive a livelihood from the thoroughbred racing industry, which will now remain a significant driver of the Australian economy.”
In addition to denying McHugh’s complaint on grounds of lacking evidence, Robertson also gave weight to the gist of Ford’s comment above that the value and commercial strength of the Australian Thoroughbred would be weakened by a change in the live cover restriction.
I am very happy to learn of this decision. We have enough problems on our plate without adding this one into the mix. 375 pages? One year? Wow. If they had asked me I would have penned: Sorry, live cover only.
Ha! Then the lawyers wouldn’t have gotten paid! Big Bucks!!
Based on grounds attributed to Robertson, a terrible decision.
Lack of evidence ? What kind of evidence did he believe could be introduced?
Evidence it is a restraint on trade? Is it not plain as a fencepost that if a stallion must give live covers, hundreds of would-be users are out of reach geographically?
Is it not commonly known the reason behind “live cover” was to limit the possibility of a particular horse flooding the business and diminishing the gene pool? Is it not recognized that limitation has already been breached when some stallions are reported being bred to 200 plus mares in one hemisphere and 200 more in another?
Fourhundred mares to one stallion in ONE year.
What about the hundreds of mares in any year given a shot of collected sperm at time of live cover? Did the mare get in foal on the live cover or on the sperm delivered by AI?? Prove the mare ‘took’ on the live cover. It is no better than a 50/50 chance, but ‘benefit of any doubt’ is given to the live cover. Tell us “WHY?”
Then Roberson recites the impact it might have on “foreign affairs”. He was not asked nor entitled to rule on the effect it might have outside Australia. A ruling for his own country is why it was before him.
A pathetic decision. No wonder it took him so long to conjure-up his excuses. He was reduced to trawling for justification. He sustained a judicial hernia finding for the Estabishment. But all that may be offset. A man named Kerry Packer took on and beat the Australian Cricket Establishment … and cricket is even bigger than horseracing in Australia.
Possibly there is an Appeals route available . If the Plaintiff can afford to go on, his case may (I think) be finally heard by the House of Lords in London.
I hope he has the necessary money and energy to see it through.
An alternative is establishment of independent Thoroughbred Stud Books. With all our modern technology it can readily be proven the horses in the alternative Stud Book are just as blueblooded as those entered with a quill in the monopolistic books.
Consequently there would not be any reason they would be denied the right to race as Thoroughbreds.
Garry,
You raise some fascinating points, as usual. The judge, in his 375-page statement on the decision, took a very precise and legally exact line on “restraint of trade” as it applies to Australian law and practice. From what I can glean in a quick reading of the material, he consciously and explicitly ignored wide areas of the question and affixed his verdict only to the specific question of whether live covers were preventing professional breeders from producing and raising Thoroughbreds.
Then he also considered the question of the international implications, but the deed was done by then.
Considering that McHugh has burnt through around $2 million Aus, I doubt that he will be wildly interested in pursuing this, but that’s part of the game, isn’t it?
One startling thing that I learnt from reading the transcript of the judgment is that McHugh went to the authorized bodies and asked them to set up an AI stud book, but they refused. And that is what set the suit in motion.
Cheers, mate.