Betfair Pty Limited v Racing New South Wales

REASONS FOR JUDGMENT 1 This morning the applicant ("Betfair") has applied to adjourn the trial in this matter, listed to commence on Monday 16 November 2009, for a period of one week. It made that application on a number of bases. The first, put by Mr Robertson of Senior Counsel, was that the discovery orders made yesterday now impose upon his client a burden in terms of the preparation of the case, which would have the effect of taking away resources needed for the conduct of the trial and diverting them instead into the discovery process. I have no doubt that the process of complying with the orders made yesterday is going to impose a substantial burden upon Betfair. I indicated as much yesterday. 2 There is no evidence before me, however, as to either as to the precise extent of the burden or the capacity of Betfair's solicitors to deal with that burden. As to the former, I make no criticism. As I said yesterday, Betfair has not yet had an opportunity to put any evidence about the nature and extent of the burden. As to the latter, however, even if one knew what the extent of the burden was, one would need to know also the extent to which that burden was capable of being borne. From my perspective, it could possibly be the case that there are five solicitors at Gilbert and Tobin working on the matter - there could be 25. Unless one knows that information it is not possible, it seems to me, to assess accurately the submission that an intolerable burden has been placed upon Betfair. 3 I do not exclude the possibility that such a burden has been imposed but I do not think that I can find that such a burden exists in the absence of evidence and in the face of an objection about that absence of evidence. Accordingly, I conclude that the late discovery orders do not of themselves, as the evidence stands at the moment, justify the adjournment of the proceedings. 4 A number of other points were made. It was said that the tender bundle was, putting it neutrally, not yet in a state of readiness. It was said that there were subpoenas which were returnable next week, but there were notices to produce which fell into the same category, some of which were attended by various applications in relation to confidentially, privilege and the like. I accepted that that state of affairs is obviously unsatisfactory. To be dealing in the first week of a trial with such matters is clearly undesirable. 5 That said, the burden in the first week of the hearing will chiefly be borne by theh respondents, and not by Betfair, for it is the respondents who will be called upon to cross‑examine Betfair's witnesses. To the extent that the bundle is in a state of disorder (or in n multiple states of disorder) that is a burden which, in the first instance, will fall upon the respondents in their running of the case. So too, the inability at this stage to include documents in the tender bundle which may be thrown up as a result of the returns of subpoenas and notices to produce next week, is not one which will present the applicants forensically with a difficulty until the moment that the respondents' witnesses take a seat in the witness box. Accepting as I do the undesirability of that state of affairs, nevertheless I do not think that it is something which requires the adjournment of the proceedings. 6 It was also said on Betfair's behalf that its reply evidence was to be delivered only today. Obviously enough that is true, however, again the party who has the initial difficulty with dealing with that is going to be the respondents and not Betfair. 7 To the extent that the matters to which I have just referred prefigure inconvenience in the manner in which the trial is going to run, it might, in an ordinary case, nevertheless require the adjournment of the proceedings. However, there are a number of aspects of this litigation which I think combine to defeat that conclusion. The first of these is that these proceedings have been brought on with a reasonable degree of haste having regard to the complexity and magnitude of the proceedings. That had been occurred at the request of all the parties but particularly at the request of the respondents. Substantial sums of money are being retained by them each month and the consequence of those moneys not being distributed during the pendency of this litigation is one which has an effect beyond merely the parties who are before the Court. 8 Secondly, the respondents have made clear from the very earliest date in these proceedings that their senior counsel, Mr Gleeson, would be available for this three week period and not later. I have already acceded to an application to move the original three week period I had in mind, which was going to run from 23 November 2009, back to 16 November 2009 to meet their convenience in that regard. Ordinarily, the convenience of counsel might be something which, in the exigencies of a situation such as this, entitled to be represented by counsel of their choice to the extent that this can be facilitated. This is because of the size of the proceedings, the significance of them to the respondents and those who work for or stand behind them, and also because of the apparent novelty and complexity of the issues involved and their constitutional significance. 9 Thus, although I can see a great deal of force in the notion that the trial should be adjourned for a week, I think the better view, I think the better view is that should not occur. 10 That said, however, there are a number of lesser procedural matters which are extant at the moment which make a hearing starting on Monday 16 November 2009 perhaps less attractive than it otherwise might be. I had in mind the various confidentiality applications which appear to be extant; the apparent uncertainty attending the content of the tender bundle and the continued existence of various subpoenas and notices to produce yet to be returned. What I propose to do in the circumstances is to adjourn the case to Wednesday 18 November 2009, when the trial will commence at that time. I certify that the preceding Ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.