Sportsbet Pty Ltd v State of New South Wales

REASONS FOR JUDGMENT 1 I delivered judgment in this proceeding on 16 June 2010: Sportsbet Pty Ltd v New South Wales [2010] FCA 604 (hereafter "Sportsbet"). I gave judgment in favour of Sportsbet and against Racing New South Wales in the sum of $2,061,000 together with interest. At the same time I declared approvals granted by Racing New South Wales and Harness Racing New South Wales to Sportsbet in 2008 to be invalid. Sportsbet now applies to re-open its case. During my consideration of the application the respondents have undertaken not to take out the orders. Those orders not having been perfected I retain jurisdiction to entertain the present application. The application has two components: first, it seeks to vary the declaration so that instead of the approvals being invalid what would now be invalid would be the condition imposing the race fields fee. The point may seem minor but the consequence of the approval being invalid in toto is that Sportsbet was not authorised to use race fields information in 2008-2010 which is an offence: s 33 Racing Administration Act 1998 (NSW). 2 Secondly, it seeks to have me extend the effect of the decision to the approval granted in 2009 for the 2009/2010 year. The consequence of that would be an increase in the judgment sum to $6,188,222 together with interest. 3 It is appropriate to deal with these separately.

Fee Condition or Approval 4 At paragraph [157] in Sportsbet [2010] FCA 604 I said: Plainly, Sportsbet is entitled to relief. It seeks declaratory orders which would hold invalid the 1.5% fee condition. There are two difficulties with that course. First, the constitutional infirmity springs from the practical operation of the fee condition and I have held that to be an inseverable part of a set of arrangements which includes the thresholds together with the rebates to the TAB and compensation arrangements with the clubs. If a measure is to be the subject of a declaration then it should involve, as RNSW and HRNSW point out, at least each element of the practical operation case. Secondly, there are significant problems with declaring only parts of the relevant instruments invalid. It would not, for example, be correct to leave operational the approvals with no condition as to fee attaching to them altogether. This raises the question of what the appropriate condition would be and that, so it seems to me, is not a judicial function. The appropriate course, therefore, is to declare each approval wholly invalid. 5 Sportsbet's written submissions at trial contemplated the possibility of that outcome. They were as follows: 95. Sportsbet seeks declarations of invalidity in relation to the fee imposed on it. This may be effected in the following ways: (a) A declaration of invalidity in relation to the fee condition (effectively reading down the approvals to be within s 92); or (b) A declaration of invalidity in relation to the approvals as a whole. 6 Mr Bennett QC, for Sportsbet, pointed out that in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 the conditions themselves had been declared invalid. This may well be so but I gave considered reasons for not taking that course. This is not a case of oversight or slip where re-opening might be seen as serving the practical end of nipping in the bud unnecessary appellate litigation. Rather, this is a case where the result which has occurred was contemplated by Sportsbet and where the issue of whether only the fee condition should be struck down was expressly considered and decided. I may be wrong in my conclusions on this question but the proper forum for that debate is the Full Court and not a re-opening application.