Sportsbet Pty Ltd v State of New South Wales (No. 14) [2010] FCA 127 (23 February 2010)

Last Updated: 24 February 2010

FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Ltd v State of New South Wales (No. 14) [2010] FCA 127

Citation:		Sportsbet Pty Ltd v State of New South Wales (No. 14) [2010] FCA 127
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:		23 February 2010
Catchwords:		EVIDENCE – Publication of – Prohibition on – Sensitive commercial information – In order to prevent prejudice to orderly conduct of commerce – Need for confidentiality only temporary – Federal Court of Australia Act 1976 (Cth) s 50
Legislation:		Federal Court of Australia Act 1976 (Cth) s 50
Cases cited:		Betfair Pty Limited v Racing New South Wales (No. 5) [2009] FCA 1011 applied Betfair Pty Limited v Racing New South Wales (No. 9) [2009] FCA 1349 cited Betfair Pty Limited v Racing New South Wales (No. 12) [2009] FCA 1519 cited Sportsbet Pty Ltd v State of New South Wales (No. 12) [2010] FCA 62 cited
Date of hearing:	16 February 2010
Date of last submissions:	19 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	Mr D M J Bennett QC with Mr T J 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, Mr J S Emmett and Mr S Robertson
Solicitor for the Second and Third Respondents:	Yeldham Price O'Brien Lusk
Counsel for Tabcorp etc.	Mr Brereton SC
Solicitor for Tabcorp etc.	Freehills

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:	23 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) the parts of the document identified in the schedule attached to these orders shall not be published to any person except the parties in this proceeding, the TAB parties and their respective legal representatives without the leave of the Court.
2. Order 1 does not affect any existing access of the parties in the proceedings to any documents identified in the Schedule or any existing confidentiality regime in place in relation to those documents.
3. The material identified in order 1 only be used for the purposes of these proceedings.
4. All existing confidentiality orders are extended to 5.00 pm Thursday 15 April 2010.
5. The parties are to bring in short minutes of order giving effect to these reasons by Tuesday 30 March 2010.
6. Stand over for further directions on the issue of confidentiality to Tuesday 6 April 2010.

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:	23 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The second and third respondents apply for further orders pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) in relation to parts of the transcript containing the cross-examination of Mr Tyshing together with certain other documents. These materials reveal sensitive commercial information which would be useful for other participants to know in the national wagering market. For example, the turnover figures for Sportsbet and various bookmakers are revealed.
2. In this proceeding I have previously held that the release of such information would be prejudicial to the orderly conduct of commerce due to the trade rivalry between the various market participants: Sportsbet Pty Ltd v State of New South Wales (No. 12) [2010] FCA 62 at [5] & [9]. To arrive at that conclusion, I applied reasoning from Betfair Pty Limited v Racing New South Wales (No. 5) [2009] FCA 1011. That decision involved a series of applications made by Betfair for confidentiality orders. Betfair’s concern was that the revelation of documents throwing light on its strategic decisions to Racing New South Wales would lead to their inadvertent disclosure to the TAB Limited, which I accepted stood effectively in the position of a trade rival to Betfair. That state of affairs arose from the strategy committee set up under the Racing Distribution Agreement pursuant to which both Racing New South Wales and the TAB were members.
3. Part of the claim also concerned a contention that Betfair’s internal financial documentation could be strategically useful to TAB Limited. Of that material I said at [35]:

The question of financial material is more difficult. I would accept that very recent financial information, which is not publicly available, might be relevant to the committee’s strategy functions. However, the evidence before me does not disclose how rapidly that relevance fades. My initial impression is that the outer limit may be about six months. If that be so, during the course of the proceedings information will continuously be released from the confidentiality regime upon reaching that age. However, there is not currently in the material before me sufficient evidence to permit an accurate answer to that question. I also incline to the view that Betfair’s marketing information, at least in relation to horses and harness racing, is entitled to be kept back since it may impact upon the committee’s strategic functions.

4. Further confidentiality orders along similar lines were made in Betfair Pty Limited v Racing New South Wales (No. 9) [2009] FCA 1349 and, again, in Betfair Pty Limited v Racing New South Wales (No. 12) [2009] FCA 1519. In neither case was the limitation arising from paragraph [35] of Betfair (No. 5) discussed. A similar remark may be made about the confidentiality orders made in Sportsbet (No. 12).
5. It seems to me that paragraph [35] of Betfair (No. 5) has a significant impact on the confidentiality orders which have thus far been made. I propose, in the interest of consistency, to accede therefore to the orders proposed by the second and third respondents but to indicate that on Thursday 15 April 2010 I propose, subject to any application made to the contrary, to revoke all confidentiality orders which have heretofore been made and in lieu thereof to put in place a new regime providing confidentiality for financial materials as follows:

Date	Protection
15 April 2010	Financial materials postdating 1 September 2009.
15 May 2010	Financial materials postdating 1 October 2009.
15 June 2010	Financial materials postdating 1 November 2009.
15 July 2010	Financial materials postdating 1 December 2009
15 August 2010	Financial materials postdating 1 January 2010
15 September 2010	Financial materials postdating 1 February 2010.

6. There may be strategy documents going beyond financial materials and it may be that a separate regime can be justified in respect of those documents. As I intend on and after 15 September 2009 there will be no financial materials subject to a confidentiality order under this structure.
7. I turn then to the application made by TAB Limited, Tabcorp Holdings Pty Limited, Luxbet Pty Limited and Skychannel Pty Limited (“the TAB parties”). I see no reason to distinguish the materials in those applications – which are essentially commercially sensitive materials – from the situation I have just discussed. Because all parties have proceeded thus far on the basis of Sportsbet (No. 12) and Betfair (No. 5) and (No. 12) it would be inappropriate and unfair presently not to make the orders sought. However, the confidentiality regime granted will expire on the same basis set out above.
8. The documents in respect of which protection is sought by the TAB parties are not presently the subject of an order pursuant to s 50. I will for similar reasons make the orders which are sought in those parties’ notice of motion. In relation to the second and third respondents’ application it is necessary for me to extend the interim orders which have been thus far made and I will do so. I will make both sets of those orders now. In relation to the regime of ongoing expiration of confidentiality orders, clearly there will be complex questions as to how this is to be achieved. It seems to be to be appropriate to give all parties some considerable period of time to work through those issues. The parties are, therefore, to bring in short minutes of order by Tuesday 30 March 2010 in accordance with the reasons set out above.
9. I will list this matter (and Betfair) for directions on Tuesday 6 April 2010 for the specific purpose of dealing with the ongoing aspects arising from confidentiality.
10. The orders of the Court are:
    1. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) the parts of the document identified in the schedule attached to these orders shall not be published to any person except the parties in this proceeding, the TAB parties and their respective legal representatives without the leave of the Court.
    2. Order 1 does not affect any existing access of the parties in the proceedings to any documents identified in the Schedule or any existing confidentiality regime in place in relation to those documents.

3. The material identified in order 1 only be used for the purposes of these proceedings.

4. All existing confidentiality orders are extended to 5.00 pm Thursday 15 April 2010.
5. The parties are to bring in short minutes of order giving effect to these reasons by Tuesday 30 March 2010.
6. Stand over for further directions on the issue of confidentiality to Tuesday 6 April 2010.

SCHEDULE

LIST OF PARTS OF DOCUMENTS

1. The dollar figures in the table at page 1362 of section 2 of the Court Book.
2. The figures in the tables on pages 1363 and 1364 of section 2 of the Court Book.
3. The dollar figure in brackets immediately after the words ‘reasonable financial offer’ on page 1366 of section 2 of the Court Book.
4. The dollar figure immediately after the words ‘was considering offering to pay’ in the second bullet point on page 1399 of section 2 of the Court Book.
5. The dollar figures in the second bullet point and last paragraph on page 1413 of section 2 of the Court Book.
6. The dollar figures in the second and third paragraphs on page 1414 of section 2 of the Court Book.
7. The dollar figure immediately after the words ‘Tabcorp further indicated that it will cap its second half operating costs at’ in the second paragraph under the heading ‘2006/07 WIF Payments’ on page 1481 of section 2 of the Court Book.
8. The dollar figure immediately after the words ‘for the purposes of the second half WIF calculation to the ‘in the second bullet point on page 1559 of section 2 of the Court book.
9. The following parts of page 1560 of section 2 of the Court Book:

(a) the dollar figure immediately after the words ‘for the purposes of the WIF calculation, to’ in the first bullet point;

(b) the dollar figure immediately after the words ‘A fixed price of’ in the first sub-bullet point to the second bullet point; and

(c) the dollar figures in the 3 bullet points under the heading ‘2.2.2 Thoroughbred Timeslot’.

10. The dollar figures in the table on page 1835 of section 2 of the Court Book.
11. The percentage figures and dollar figures in the final paragraph on page 2748 of section 2 of the Court Book.
12. The percentage figures and dollar figures in the first and fifth paragraphs on page 2749 of section 2 of the Court Book.
13. The dollar figure in the fifth bullet point on page 2795 of section 2 of the Court Book.
14. The dollar figure in paragraph 330(c) of the document entitled ‘Applicant’s Submissions on and Summary of Facts’.
    

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 23 February 2010