Sportsbet Pty Ltd v State of New South Wales

REASONS FOR JUDGMENT 1 By notice of motion filed on Friday 13 November 2009 the applicant ("Sportsbet") seeks orders which would require the second and third respondents to discover further documents. At 3.30pm yesterday, that is Tuesday 24 November 2009, I dismissed that application with costs. These are my reasons for taking that course. 2 It is first necessary, however, to say something of the context in which the application was made and heard. These proceedings are fixed for hearing on Monday 30 November 2009 immediately after the conclusion of the proceedings in Betfair v Racing New South Wales. Both that case and this case have in common an allegation that the imposition of a fee fixed by the New South Wales racing authorities by reference to turnover of a wagering operator is constitutionally unlawful by reason of its impact upon interstate trade. Betfair is a betting exchange operating from Tasmania; Sportsbet is a corporate bookmaker operating from the Northern Territory. 3 Thus far the cases have travelled together in my docket with a couple of minor exceptions when they were listed separately for directions. The trial in the Betfair proceeding commenced before me last Wednesday 18 November 2009. However, both cases were originally fixed for a hearing commencing on Monday 16 November 2009. The order fixing both matters for hearing was made on 5 June this year. Both sets of proceedings have been attended by a degree of urgency. At present the racing authorities who are the respondents in both sets of proceedings and the first and second respondents in the Betfair proceedings, have been collecting the impugned fee from wagering operators under their protest. If either Betfair or Sportsbet succeed in their cases there is a prospect, but not a certainty, that that money, which is presently in excess of $44 million, will have to be refunded. To protect themselves against that eventuality the racing authorities are presently not distributing the fees which they have collected to the participants in the New South Wales racing industry. 4 Accordingly, funding to that industry which is in large part dependent upon distribution of that fee is partially cut off or impeded. That state of affairs will continue whilstsoever the present proceedings and Betfair's proceedings remain on foot in this Court or on foot in any appeal. The effect on third parties such as racing clubs and those who are employed by or in contractual relations with racing clubs is obvious. It follows, as I have previously accepted, that the present proceedings must be heard as expeditiously as possible. 5 Because the Betfair trial is presently running it has been necessary to deal with the current application largely out of hours. During the course of the hearing of the present application I refused an application by Sportsbet to cross‑examine the racing authorities' solicitor, Mr Price, on the steps he took in pursuit of the process of discovery. Ultimately I also imposed time limits on the addresses of counsel. I took that rather unusual course because of the imperative need to resolve the present application before the length of the submissions determined, in a de facto way, the outcome of an adjournment application to be dealt with later by me today. 6 I refused the application to cross‑examine because of the concerns I held that the magnitude of the cross‑examination which was contemplated might unacceptably lengthen the hearing and also because of my impression that the points which were sought to be made through the cross‑examination of Mr Price could just as readily be made by way of submission from the bar table. 7 The issues which arise on the application for further discovery are, so it seems to me, three: (i) whether the categories of discovery now sought in the notice of motion are to be seen as being within the previous categories which have been ordered; (ii) whether, if they are, there has been any failure by the racing authorities properly to comply with the obligations inherent in the original discovery orders; and (iii) whether, if the documents now sought do not truly lie within the previous categories ordered whether there should nevertheless be an order for fresh discovery. It is useful to deal with those issues in the order which I have just outlined.