Betfair Pty Limited v Racing New South Wales (No 12) [2009] FCA 1519 (27 November 2009)

Last Updated: 22 December 2009

FEDERAL COURT OF AUSTRALIA

Betfair Pty Limited v Racing New South Wales (No 12) [2009] FCA 1519

BETFAIR PTY LIMITED v RACING NEW SOUTH WALES , HARNESS RACING NEW SOUTH WALES and ATTORNEY-GENERAL (NEW SOUTH WALES)
NSD 1566 of 2008

PERRAM J
27 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1566 of 2008

BETWEEN:

BETFAIR PTY LIMITED Applicant

AND:	RACING NEW SOUTH WALES First Respondent HARNESS RACING NEW SOUTH WALES Second Respondent ATTORNEY-GENERAL (NEW SOUTH WALES) Intervener

JUDGE:	PERRAM J
DATE OF ORDER:	27 NOVEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The parties are to bring in a short minute of order giving effect to the reasons for judgment.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1566 of 2008

BETWEEN:

BETFAIR PTY LIMITED Applicant

AND:	RACING NEW SOUTH WALES First Respondent HARNESS RACING NEW SOUTH WALES Second Respondent ATTORNEY-GENERAL (NEW SOUTH WALES) Intervener

JUDGE:	PERRAM J
DATE:	27 NOVEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There are four applications presently relating to confidentiality. The first is made by the Applicant (Betfair) in relation to certain documents; the second is also made by Betfair in relation to certain aspects of the transcript; the third is made by the respondents; and the final one is made by Tabcorp, which is a third party to the proceedings. I have previously concluded that Betfair and Tabcorp are effectively in a position which is analogous to that of trade rivals: see Betfair Pty Ltd v Racing New South Wales (No 9) [2009] FCA 1349 at [2]; Betfair Pty Ltd v Racing New South Wales (No 5) [2009] FCA 1011 at [30]- [32]. The material in question is substantial. It consists of extracts of transcript exhibited to the affidavit of Mr Blanksby, and documents exhibited to the affidavits of Mr Freeman and Mr Price.
2. Consistent with the requirements set out by Hayne J in Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 40, I have, as best I can, examined those materials which are contained in about five or six lever arch folders of paper. Having done so I am satisfied that the release of the information in question to the corresponding competitor would be inimical to the orderly conduct of commerce and should not be made public: see Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 at 157 to 158 per Bowen CJ.
3. So far as the transcript is concerned it is to be noted that it resulted from the cross-examination of Betfair’s Chief Executive Officer, Mr Twaits, during the afternoon of 20 November 2009 when the court was, for a period, held in camera. The ensuing transcript is largely innocuous and should be released. However, the parties are in general agreement that certain parts of it should not be released. I have examined those parts and my previous reasoning in relation to the position of trade rivals and commercially sensitive information applies to it.
4. There was, however, a dispute by the respondents as to the following parts of the transcript: page 64, lines 6, 7, 8, 15, 16, 21, 29 and 30; page 65, lines 1, 7, 25, and 27 to 35, except for the particular number referred to in those lines; and, page 66, lines 12 to 17. Having read those I do not think that those parts should be made public. They go to the kind of commercial considerations referred to by the Chief Justice in Parish. I do not regard the Full Court’s recent decision in Hogan v Australian Crime Commission [2009] FCAFC 71; (2009) 177 FCR 205 as requiring a different outcome. I therefore conclude that all of the material in the transcript identified as being confidential and all of the material referred to as requiring confidentiality in the affidavits of Messrs Blanksby, Price and Freeman, should remain confidential.
5. I do not see any good reason at the moment for in-house counsel to see this material. That is because it is not obvious on its face why that would be necessary, and also because we are now in the second day of closing submissions and it is unlikely, in a practical sense, that there is anything which could be done by them with this material. If there is some proven necessity for in-house counsel to have access to the material then application may be made to vary this regime.
6. Having been tendered in the proceedings, it is arguable that the Harman obligation (Home Office v Harman [1981] QB 534; Hearn v Street [2008] HCA 36; (2008) 235 CLR 125) no longer applies to the documents which have been tendered on this application. That is an unsatisfactory state of affairs from all parties’ perspectives. Accordingly I order, pursuant to O 15 r 18 of the Federal Court Rules, that the documents the subject of the confidentiality regime not be used other than for the purposes of these proceedings.
7. I direct the parties to bring in a single short minute of order giving effect to what I have just held.
   

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 27 November 2009

Counsel for the Applicant:	Mr A. J. Meagher SC and Mr P. W. Flynn
Solicitor for the Applicant:	Gilbert + Tobin
Counsel for the Respondents:	Mr J. T. Gleeson SC, Mr S. Kerr SC and Mr S. J. Emmett
Solicitor for the Respondents:	Yeldham Price O'Brien Lusk
Counsel for the Respondents:	Mr J. K. Kirk
Solicitor for the Respondents:	Attorney-General of New South Wales
Counsel for the Respondents:	Mr C. Moore
Solicitor for the Respondents:	Freehills

Date of Hearing:	26 November 2009
Date of Judgment:	27 November 2009