21 These were said to be discoverable within categories 12, 13 and 14, which were as follows:
12. All documents created on or after 1 July 2004 considered by the Board of HRNSW and all documents considered by any officer, employee or consultant of HRNSW involved in the preparation of the documents for the Board recording or referring to charging a fee to wagering operators for a race field publication approval (or a race field use approval) and/or setting the level of that fee, including without limitation any consideration of:
(i) the discretion available to a racing control body under reg 16 of the RA Regulations;
(ii) the Note to reg 16 of the RA Regulations;
(iii) the impact of the decision in Betfair v Western Australia;
(iv) fees for publication of race fields set by GRNSW or RVL;
(v) the calculation or setting of a fee on a gross revenue or gross profit basis;
(vi) the annual turnover of bookmakers operating in New South Wales from 1 January 2007, including the number or identity of bookmakers with turnover equal to or below $5 million per annum and those with turnover above $5 million per annum
13. All documents created on or after 1 July 2004 recording or referring to consideration given by HRNSW to charging a fee to wagering operators for a race field publication approval (or a race field use approval) and/or setting the level of that fee, including without limitation any consideration of:
(i) the discretion available to a racing control body under reg 16 of the RA Regulations;
(ii) the Note to reg 16 of the RA Regulations;
(iii) the impact of the decision in Betfair v Western Australia;
(iv) fees for publication of race fields set by GRNSW or RVL;
(v) the calculation or setting of a fee on a gross revenue or gross profit basis;
(vi) the annual turnover of bookmakers operating in New South Wales from 1 January 2007, including the number or identity of bookmakers with turnover equal to or below $5 million per annum and those with turnover above $5 million per annum
14. All documents created on or after 1 July 2004 received by or created at the request of or by Max Pool, CEO of HRNSW, recording or referring to charging a fee to wagering operators for a race field publication approval (or a race field use approval) and/or setting the level of that fee.
22 I do not think that the fact that the CEO's report was discussed suggests the existence of documents in categories 12, 13 or 14. The report may not have mentioned the matter at all.
23 For the same reasons I have given in respect of the first respondent, I do not think that the item "Race Fields Legislation - status report" reveals the existence of discoverable documents. In any event, the second respondent's position is that it cannot locate this document. Again, I see no reason, without more, to require any further explanation of the reasons it is missing or the searches which have to date been made.
24 As for the item "Race Field Information", I do not see why it need involve documents which must fall into categories 12, 13 or 14. The applicant's submission assumes, in effect, that anything to do with race field information necessarily falls within categories 12, 13 and 14, but this is not what those categories say.
Letters of instruction and correspondence with consultants
25 It appears that the first respondent engaged the Boston Consulting Group ("BCG") to prepare a report for submission to an inquiry headed by Mr Alan Cameron AM into the structure of the New South Wales racing industry. A copy of that report has been discovered. The applicant seeks the discovery of BCG's instructions and, also, all correspondence in relation to the preparation of the report passing between the first respondent and BCG, including any notes at meetings. This is said to be within categories 1 and 2.
26 I do not see that every piece of correspondence passing between BCG and the first respondent in relation to the report need fall within categories 1 and 2 at all. Indeed, the idea that every item of correspondence and every meeting necessarily included a conversation or correspondence about such fees seems to me to be somewhat unlikely. In any event, as I have already indicated, the categories call for documents which show a "consideration" of that or related subject matter, and I am far from persuaded that the correspondence in question would be of that character.
27 The instructions to BCG may have touched upon the turnover fee. However, they do not fall within category 1 because, so it seems to me, they were not prepared, so far as I can see, for the board or for consideration by the board. It is possible that the instructions documents may fall within category 2, but it is not inevitable or necessarily even likely that they do do so; for example, the instructions may have been cast in a way which did not involve any consideration of the imposition of the fee within the meaning of either category. I cannot, therefore, say that the discovery process has miscarried.
28 The same point may be made in relation to category 6. It is not sufficient, for present purposes, to point to something which might be discoverable. It needs to be shown that there are grounds for thinking a discoverable document exists. I do not think that the present possibility I have just referred to constitutes sufficient grounds within the meaning of O 15 r 11.
29 The applicant also seeks further discovery from the second respondent of briefing materials or correspondence relating to Equinox Consulting. Equinox Consulting was retained by the second respondent to advise it in relation to changes to the race fields legislation. Presentations in PowerPoint slides by Equinox Consulting have been discovered, together with a proposal. The briefing materials and correspondence are said to go to categories 12, 13 and 17. I have already set out categories 12 and 13. Category 17 is as follows:
17. All documents created between 1 July 2006 and 21 July 2008 (inclusive) recording or referring to any consideration of the costs of funding the New South Wales racing industry and the actual or potential sources of that funding.
30 I do not understand why the briefing materials - which I take to be instructions - would fall within categories 12, 13 or 17 for the same reasons I have given in relation to BCG and the first respondent.
Discovery in relation to reasons to impose 1.5 per cent fee
31 The first respondent appears to have decided, on 18 June 2008 and on 2 July 2008, to impose the 1.5 per cent turnover fee on all wagering operators. At that time the board appears to have had a report before it of its CEO. On 25 July 2008 the board endorsed that earlier decision and delegated to the CEO the function of granting race field approvals, together with a further power of sub-delegation. At that time, there was a further report from him before the board. On 5 August 2008 the applicant applied for an approval, which it received on 15 August 2008 under cover of a letter of the same date. On the same day, TAB Limited also received an approval from the first respondent.
32 All of these documents have been discovered, although some of them had been redacted for presently immaterial reasons. The applicant submits that the discovery is deficient because: first, no document setting forth the reasons for imposing the 1.5 per cent fee have been discovered; secondly, no documents have been produced about the decision to issue the approval on 15 August 2008; and, thirdly, no documents have been discovered about the decision to issue TAB with an approval on the same day.
33 There was, of course, no legal obligation on the first respondent to produce reasons for its decision. The applicant's complaint assumes that such reasons were produced. It is just as likely, so far as I can see, that they were not. It is true that paragraphs 101 and 107 of its defence have the first respondent positively asserting that the approvals were issued with a specified legitimate object. It follows, so Ms Morgan submitted for the applicant, that it must have had at least those reasons.
34 Another way of looking at it, however, I think, is that there is simply no documentary basis for those paragraphs. I do not think, in that circumstance, that there is any particular reason why I should infer that documents revealing the first respondent's reasons are being held back. Rather, I would infer that such documents simply do not exist. I would deal with the alleged undiscovered documents in the same way. Clearly, decisions were made to issue approvals to the applicant and the TAB on 15 August 2008.
35 The absence of discovered reasons leads only to the inference that no reasons were produced. That proposition may ultimately not be one which is unfavourable to the applicant.
Conclusion
36 In light of those remarks I order the first respondent to file and serve an affidavit, within seven days, deposing to the steps taken to discover the emails from or to Mr V'Landys in the period 1 July 2004 to 31 December 2007. I order the second respondent to file and serve an affidavit, within seven days, deposing to the steps taken to discover the emails from or to Mr Pool. The first respondent is to give discovery of section 3.3 of the board papers for 19 March 2007.
37 I dismiss the motion of 22 September 2009. Costs are to be costs in the cause.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram J.