CONSIDERATION
37 I am of the view that although Tabcorp has a commercial interest in the outcome of the proceeding, this is not enough in itself to satisfy O 6 r 8 of the FC Rules. I am not persuaded that Tabcorp ought to have been joined as a party.
38 As noted above, the authorities show that the test for whether a party ought to be joined that must be satisfied is whether any order made by the Court may have a direct effect on the rights and liabilities of the party seeking to be joined and not an effect that is merely indirect or consequential: News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-525.
39 As Sportsbet's challenge is to the validity of a law of general application, the effect on Tabcorp will not arise directly from any order as to its validity but will be an indirect and consequential effect. If s 2.5.19B of the GR Act is declared invalid in part, the consequence would be that Tabcorp and other Victorian wagering operators would no longer be exempt from the operation of s 2.5.19B(1). The fact that Tabcorp (and other Victorian wagering operators) would have a new liability in addition to fees payable under existing commercial arrangements is an indirect effect of the orders. Similarly if s 2.5.19B is held to be invalid in its entirety, the consequence would be that many participants in the wagering industry would not be obliged to make any contribution for the publication or use of Victorian race field information. But Tabcorp would continue to be obliged to pay fees under its existing commercial arrangements. Again this would not be a direct consequence of such orders, but merely consequential on the operation of the GR Act without the invalid provision. The commercial arrangements to which Tabcorp referred in detail are independent of Tabcorp's relationship to the current respondents and are independent of the legislation. They may be re-negotiated or changed. Any impact of the orders on those commercial arrangements is clearly indirect. Importantly, in my view, those commercial arrangements are not relevant to the question of whether the provisions in the GR are valid, and they are not the subject of any of the orders sought.
40 In the context of a proceeding challenging the constitutional validity of a statute, interests of third parties will inevitably be affected. It does not follow however that such a third party ought to have been joined or is necessary to be joined to determine whether the legislation is or is not beyond legislative power. Those questions can be determined with the current parties. The addition of Tabcorp would not alter the nature of the questions arising under the action: see Australian Tape Manufacturers Association Lt v Commonwealth (1990) 94 ALR 641 per Dawson J at 645. Nor would its involvement as a party make it any the more likely that the issues in the proceeding would be resolved one way or the other.
41 The State of Victoria is as well placed as any person or entity to respond to the challenge to the validity of s 2.5.19B of the GR Act. If that provision is found to be invalid in whole or in part, the effect will indirectly affect Tabcorp and other participants in the wagering providing industry in Victoria or in respect of Victorian racing. Whilst the indirect effect on Tabcorp may be somewhat greater than that on other participants in that industry, that is in my view a matter of degree. HRV also is as well placed as any person or entity to respond to the challenge to the validity of the condition it has imposed on Sportsbet to pay the fee in the circumstances referred to above. Clearly, if its decision is found to be invalid, that will have a direct effect on its operations. The effect on Tabcorp and on other wagering service providers in Victoria or in respect of races conducted under the aegis of HRV would be indirect, albeit again perhaps to a somewhat greater indirect degree than to other industry participants.
42 In reality, in my view, Tabcorp's application for joinder is merely to support the State of Victoria and HRV in their resistance to the claims of Sportsbet.
43 The fact that the amended pleadings have made express reference to Tabcorp, as set out above, does not mean that it is directly affected by the outcome of the litigation. Tabcorp is referred to by way of example and in each case other licensed Victorian wagering operators are also referred to. The fact that the Court will need to examine the comparative position of Sportsbet and the Victorian wagering industry (including Tabcorp) does not make each element of the local industry necessary to be joined. The interests of all interstate bookmakers who accept bets on Victorian harness racing, interstate totalisators, Victorian bookmakers and Tabcorp may all be affected by the litigation. The presence of each or any of them is clearly not necessary in order to adjudicate on the questions arising.
44 I accept that there is evidence that Tabcorp may wish to lead in relation to its financial contributions and to harness racing in Victoria and to its commercial arrangements, and more generally about the respective contributions to harness racing in Victoria of Tabcorp and other wagering service providers. Even accepting such evidence may be relevant, any such evidence is available to be called by the existing respondents. There is no suggestion that they will not have access to that evidence. They can decide what evidence they wish to call. There is no basis for thinking their decisions in that regard would be influenced by factors different from those presently motivating Tabcorp to make its joinder application. The mere fact that Tabcorp may be in a better position to assemble such evidence is not enough to make it necessary that it be joined as a party. The word "necessary" requires that it be more than just convenient; it must be essential to determine the questions which arise. Similarly, there is no reason to think that the existing respondents would not put as forcefully or as well as Tabcorp any legal submissions which should be put in opposition to Sportsbet's application.
45 For those reasons, I am not satisfied that Tabcorp's joinder is necessary to ensure that all matters in dispute in the proceeding are effectually and completely determined and adjudicated upon.
46 I note for completeness that, as I do not think Tabcorp ought to be joined, I have not taken into account whether the joinder would delay the proceeding or cause prejudice to a party, or if there was undue delay in making the application. I accept its submissions that it has acted promptly and in a timely manner. However, its joinder would if anything tend to prolong the proceeding simply because there would be an additional party seeking to be heard, to adduce or test evidence, and to make submissions which I think would be likely to somewhat duplicate the steps taken by the existing respondents. As I have indicated, however, it is not on that ground that I propose to reject the joinder application.
47 I am persuaded, however, that Tabcorp has sufficient interest to intervene in the proceeding. That is possibly erring on the side of caution. I have concluded the State of Victoria and HRV are in a satisfactory position to adduce and test all relevant evidence and to make submissions on the issues in the proceedings. I propose to limit Tabcorp's intervention to making submissions, orally or in writing, on issues not addressed by the other parties. If there are issues that cannot or do not get addressed by the parties, Tabcorp may then be able to provide a contribution that is useful and of course different from the contribution of the other parties. Due to this limited role that they may have, I do not think the intervention will interfere with the ability of the parties to conduct the proceeding as they wish. That leave is given really from an abundance of caution. It may not be sought to be exercised. Consistently with that leave, I will also reserve to Tabcorp leave to apply to the Court to make submissions on other topics if the circumstances warrant it doing so.
48 I will make orders accordingly.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.