Australia Court Allows Horse-Sex Rules Challenger Appeal

An Australian judge allowed a proponent of artificial insemination to breed thoroughbred racehorses to appeal a ruling upholding an international ban, overruling objections to the late filing of the challenge.

Federal Court Justice Peter Jacobson in Sydney today ruled a six-week delay in the filing of a notice of appeal wasn’t enough to bar the request as the case involves issues “of significance to the thoroughbred industry.”

Bruce McHugh, a former chairman of a Sydney racing club, sued thoroughbred authorities to legalize the use of artificial insemination, arguing the ban on the practice was an illegal trade restraint as he seeks to start a breeding business. Federal Court Justice Alan Robertson dismissed the bid Dec. 19, upholding an international ban that has been in effect since at least the 1940s.

Under federal court rules, McHugh had until Jan. 31 to file his notice of appeal.

The combination of Christmas holidays, a monthlong Australian summer vacation period in January, the review of Robertson’s 369-page judgment, retirement of the trial lawyer and the need to get a second attorney’s opinion didn’t provide enough time to file the required papers, McHugh’s lawyer Jason Lazarus argued in court today.

Robertson took a year to release the judgment, following a seven-week trial and a six-week delay to Mar. 15, when McHugh was ready to file the notice of appeal was “insignificant,” Lazarus said.

The explanation for the delay was “manifestly inadequate,” Christian Bova, lawyer for the Australian Turf Club, said, urging the judge to reject the request.

‘Draconian’ Consequences

Consequences of a rejection for McHugh would be “draconian,” while the explanation for the delay is adequate, Jacobson said in his ruling from the bench, agreeing to provide the extension.

International rules, including those in Australia, require racehorses must have physical sex for their foals to be considered thoroughbreds.

The suit threatened to upset traditions behind horseracing’s appeal to kings, queens, sheikhs and billionaires, according to Tony Bannon, attorney who had defended the Australian Turf Club at trial.

The law required that the plaintiff must show trade restraint was unreasonable when it was established for it to be illegal. Since the rule was imposed many decades ago, it was reasonable at that time, Robertson ruled.

Trade Restraint

The judge’s ruling failed to take into account advances in technology and restraint of trade can’t be indefinite, Lazarus said, indicating some of the reasons for McHugh’s appeal.

The multibillion-dollar thoroughbred breeding industry sees the world’s most-prized horses being sent around the globe by their owners, including Dubai’s ruler Sheikh Mohammed bin Rashid al-Maktoum, as so-called shuttle stallions to physically mate.

Fees for a mating have exceeded $330,000, according to, an industry website in Australia, the world’s biggest thoroughbred racing jurisdiction after the U.S.

McHugh claimed the rule requiring horses to have physical sex makes breeding expensive and dangerous and prevents him from getting into the business.

He is former chairman of the Sydney Turf Club, which last year merged with the Australian Jockey Club to become the Australian Turf Club.

The case is Bruce McHugh v the Australian Jockey Club Ltd. NSD455/2013. Federal Court of Australia (Sydney).

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