Sportsbet Pty Ltd v State of New South Wales (No 12) [2010] FCA 62 (9 February 2010)

Last Updated: 15 February 2010

FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Ltd v State of New South Wales (No 12) [2010] FCA 62

Citation:		Sportsbet Pty Ltd v State of New South Wales (No 12) [2010] FCA 62
Parties:		SPORTSBET PTY LTD v STATE OF NEW SOUTH WALES, RACING NEW SOUTH WALES and HARNESS RACING NEW SOUTH WALES
File number(s):		NSD 1821 of 2008
Judges:		PERRAM J
Date of judgment:		9 February 2010
Catchwords:		EVIDENCE – Publication of – Prohibition on – In order to prevent prejudice to orderly conduct of commerce – Federal Court of Australia Act 1976 (Cth) s 50
Legislation:		Federal Court of Australia Act 1976 (Cth) s 50
Cases cited:		Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 cited Betfair Pty Limited v Racing New South Wales (No 5) [2009] FCA 1011 referred to Betfair Pty Limited v Racing New South Wales (No 12) [2009] FCA 1519 cited Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 cited
Date of hearing:	8 February 2010
Date of last submissions:	8 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	Mr D M J Bennett QC with Mr T North SC, Mr A Tokley, Mr A Paterson and Mr P Nugent
Solicitor for the Applicant:	Fitzpatrick Legal
Counsel for the First Respondent:	Mr S B Lloyd SC with Ms A M Mitchelmore
Solicitor for the First Respondent:	New South Wales Crown Solicitor's Office
Counsel for the Second and Third Respondents:	Mr J T Gleeson SC with Mr S A Kerr SC and Mr S Robertson
Solicitor for the Second and Third Respondents:	Yeldham Price O'Brien Lusk

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1821 of 2008

BETWEEN:

SPORTSBET PTY LTD Applicant

AND:	STATE OF NEW SOUTH WALES First Respondent RACING NEW SOUTH WALES Second Respondent HARNESS RACING NEW SOUTH WALES Third Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	9 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The respondents be granted leave until Friday 12 February 2010 to provide the Court further evidence why the documents in paragraph 19 of the affidavit of Mr Price dated 3 February 2010 should be the subject of a non-disclosure order under section 50 Federal Court of Australia Act 1976 (Cth).
2. The contents of the documents in paragraph 19 of the affidavit of Mr Price dated 3 February 2010 are not to be disclosed in the interim period, with such an order ceasing at 5.00 pm on Friday 12 February 2010.
3. All other confidentiality orders, including but not limited to, the orders issued on 2 December 2009, 5 February 2010 and 8 February 2010, are extended until 5.00 pm Friday 12 February 2010.
4. To the extent that it is not already clear I extend, and if necessary establish, the interim protection afforded to the large submission document filed by the applicants, being the document in excess of 100 pages length
5. The parties are to bring in short minutes of order by 10:15 am Friday 12 February 2010 consistent with my reasons.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1821 of 2008

BETWEEN:

SPORTSBET PTY LTD Applicant

AND:	STATE OF NEW SOUTH WALES First Respondent RACING NEW SOUTH WALES Second Respondent HARNESS RACING NEW SOUTH WALES Third Respondent

JUDGE:	PERRAM J
DATE:	9 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of motion filed on 2 February 2010 TAB Limited, Tabcorp Holdings Limited and Luxbet Pty Limited, who I shall collectively refer to as Tabcorp, applied for confidentiality orders, pursuant to s 50 of the Federal Court of Australia Act 1976. The orders sought were in the following terms:
   1. The parts of the documents identified in the Schedule attached to this Notice of Motion are to be kept confidential and are not to be disclosed or published to any person without leave of the Court.
      
   2. Order 1 does not affect any existing access of the parties in the proceedings to any of the documents identified in the Schedule or any existing confidentiality regimes in place in relation to those documents.
      
   3. The material identified in order 1 only be used for the purposes of these proceedings.
      

2 The schedule referred to in those orders was as follows:

1. The following parts of the Deed of Accession, Cooperation and Amendment (which is at pages 171-340 of section 4 of the Court Book - ‘Documents subject to confidentiality’):

(a) clauses 3A, 7A.2, 7A.4, 7A.7, 9A, 9B, 11B;
(b) the definition in clause 1.1 of the term “Non Totalizator Receipts”;
(c) the definition of “Operating Costs and Expenses” and the various amendments, notes to, and explanations that follow that definition; and
(c) Annexure E,

all as set out in Schedule 1 to the Deed of Accession, Cooperation and Amendment.

2. The following parts of document 74 (which is at pages of [sic] 1394-1444 of section 2 of the Court Book):
   

(a) the text set out under the heading ‘Fairfax Agreement’ on page 3;
(b) all of the text on page 4 with the exception of the heading ‘News Agreement’;
(c) the text at the top of page 5 to the words ‘These payments are quarantined from the WIF’; and
(d) the dollar figure immediately after the words ‘was considering offering to pay’ in the second bullet point on page 6.

3. The following parts of document 108 (which is at pages of [sic] 1790-1857 of section 2 of the Court Book):
   

(a) the dollar figures in the table under the heading ‘For Racing NSW Country’ on page 53; and
(b) the dollar figures in the table under the heading ‘For Provincial Association’ on page 54.

3. None of those orders was opposed by any other party. The basis for the proposed orders was that Tabcorp and Sportsbet are trade rivals and that the documents in question would effectively disclose trade secrets or commercially delicate information of Tabcorp to Sportsbet (and inferentially it might be said to other competitors who are aware of these proceedings).
4. I previously accepted that Tabcorp and Betfair are trade rivals in the requisite sense: see Betfair Pty Limited v Racing New South Wales (No 5) [2009] FCA 1011 at [30]-[32]. I see no reason to distinguish the position of Sportsbet or any other large interstate bookmaker from that of Betfair. In principle, therefore, the claims are tenable. The appropriate question then, is whether I can be satisfied that the release of the material in question would be inimicable to the orderly conduct of commerce and should, therefore, not be made public: see Betfair Pty Limited v Racing New South Wales (No 12) [2009] FCA 1519 at [2]; Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 at 157-158. To answer that question it is necessary that the documents be inspected by the Court: see Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 40 per Hayne JA.
5. The first set of documents consists of various parts of the agreements between Tabcorp and, loosely speaking, the racing industry.
6. The nominated clauses reveal most of the cost structures of TAB’s business as well as material explaining its various obligations with respect to different wagering events. I will not set them out as that would involve disclosing the information which is sought to be protected. I am satisfied that disclosure of this information would be prejudicial to the orderly conduct of commerce. Tabcorp also sought orders in respect of:

1. certain documents setting out the terms of agreements with Fairfax and News; and

2. certain documents setting out sponsorship arrangements for country and provincial racing clubs and their links with a particular television company.

I am satisfied that disclosure of these matters would also be inimicable to the orderly conduct of commerce.

7. I turn then to the second and third respondents’ motion which was filed on 5 February 2010 and dated 3 February 2010. This motion seeks to do two things. First, it seeks to put in place a regime where discovered documents containing irrelevant portions have been redacted. Although Mr Price, in his affidavit, suggested that this was opposed by Sportsbet no opposition to that course was indicated on the hearing of the motion before me. I am content that that course be taken. The second part of the motion concerned confidentiality orders. The confidential documents were referred to in paragraph 19 of Mr Price’s affidavit of 3 February 2010. The documents in paragraph 15 were the subject of confidentiality orders made by me in the Betfair proceedings on 30 November 2009. I accept that they were appropriately the subject of fresh orders.
8. The documents in paragraph 19 consist of exhibit KDB1 to the affidavit of Mr Bulloch together with a schedule containing a summary and details of wagering operators with turnover in excess of $5 million. I am not presently satisfied that a confidentiality order is appropriate for those materials. However, during the course of argument this morning I have indicated that I will grant leave to put on some further evidence about that, particularly since it involves the position of third parties who are not represented before me. I will extend the interim protection for both sets of documents in paragraph 19 to the date I indicate at the end of these reasons.
9. I turn then to Sportsbet’s application which was pursued by a notice of motion filed on 5 February 2010. It sought to restrain publication of Annexure F to Mr Tyshing’s affidavit of 13 October 2009. Annexure F sets out various revenue details and volume details for Sportsbet. I am satisfied that the disclosure of this material would be inimicable to the orderly conduct of commerce and the material would be of significant interest to Sportsbet’s competitors.
10. I am also satisfied that similar orders should be made over the corresponding portions of the transcript of Mr Tyshing’s cross-examination in private session. That transcript should be released in due course with the relevant portions redacted. An order has also been sought in respect of exhibit A, a document entitled “Companies, Partnerships Etc. – NSW Thoroughbred Turnover Greater than $5 Million”, which for similar reasons should be granted. I am prepared to order that certain parts of the two documents handed up and headed “Impact of ‘Fee-Free’ Thresholds”, to the extent that they deal with the information the subject of other s 50 orders, should likewise be the subject of a s 50 order.
11. I direct the parties to bring in short minutes of order by 10.15am Friday 12 February 2010 and I extend all current interim confidentiality orders to 5.00 pm on Friday 12 February 2010. To the extent that it is not already clear I extend, and if necessary establish, the interim protection afforded to the large submission document filed by the applicants, being the document in excess of 100 pages length.
    

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 12 February 2010