Betfair Pty Limited (ACN 110 084 985) & Anor v State of WA

[2007] HCATrans 77

[2007] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C2 of 2007

B e t w e e n -

BETFAIR PTY LIMITED (ACN 110 084 985)

First Plaintiff

MATTHEW EDWARD ERCEG

Second Plaintiff

and

STATE OF WESTERN AUSTRALIA

Defendant

Directions

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 21 FEBRUARY 2007, AT 9.17 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If your Honour pleases, I appear for the plaintiffs.  (instructed by Gilbert & Tobin)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please your Honour, I appear for the defendant.  (instructed by State Solicitor’s Office (WA))

HIS HONOUR:   Yes.  Mr Gageler, your outline sets out the orders that you are seeking, is that correct?

MR GAGELER:   Yes, there has been some fine tuning, your Honour, and I can propose some directions as agreed between the parties.

HIS HONOUR:   This matter has not been before any Judge yet, has it?

MR GAGELER:   No.

HIS HONOUR:   I see that it is submitted that it is unlikely that there will be any facts in issue.

MR GAGELER:   Yes.

HIS HONOUR:   I suppose you cannot say that absolutely.

MR GAGELER:   We cannot and we have been very careful in the pleadings and particularisation to cover the ground that we think will be necessary to be covered for constitutional purposes and we think there is nothing at the level of primary fact that is controversial.

HIS HONOUR:   Anyway, we can see about that when the matter comes back.

MR GAGELER:   Yes.

HIS HONOUR:   Are Tasmania and Western Australia the only States with this sort of legislation?

MR GAGELER:   Tasmania is the only State with this precise – I am sorry.  There are two bits of legislation involved.  There is the prohibiting legislation and the empowering legislation.  The Tasmanian legislation is the empowering legislation and the Western Australian legislation is the prohibiting legislation.  They are both unique, although it may well be that other States are looking at what Western Australia has done and will think about doing the same.

HIS HONOUR:   And may want to intervene?

MR GAGELER:   Yes.

HIS HONOUR:   Is that right, Mr Meadows?

MR MEADOWS:   Yes.  My understanding is that a number of the States are proposing to intervene.  I know that New South Wales and South Australia have indicated that they intend to and that Victoria and Queensland are considering it and that Tasmania is considering it, perhaps not in support of Western Australia.

HIS HONOUR:   No, …..questions.  All right.  The only question I raise is whether it should be mentioned on 24 April or a little later.  The only reason why I say that is it may be desirable that one Judge looks after the directions or any management that is required.  I may not be here in that week, that is all.

MR GAGELER:   I see, yes.  Well, any time suitable to your Honour.  We chose that week because it was a sitting week in Canberra.

HIS HONOUR:   Yes, quite.  It could be done by video, anyway, I suppose.

MR GAGELER:   Yes.

HIS HONOUR:   It may be that I will be here, but why do we not make orders in terms of the directions proposed, 1 to 5, and that instead of 6 that the matter be listed upon three days notice to the Court with a view to – I could list it for video link to Brisbane on, say, 3 May.  Is that any problem to anybody?

MR GAGELER:   I am sorry, your Honour, I do not have my diary here but I will be in Adelaide.  It may be a slight difficulty with a video link.

HIS HONOUR:   What date would suit you, Mr Gageler?

MR GAGELER:   If your Honour was not in Canberra but in Brisbane on 26 or 27 April, would that be a possibility?

HIS HONOUR:   Those are the dates that I do not think I will be here.  When I say here I may not be in the country.

MR GAGELER:   Yes.  Perhaps 11 May, your Honour.

HIS HONOUR:   What day of the week is that?

MR GAGELER:   That is Friday, 11 May.

HIS HONOUR:   Is that a sitting week?

MR GAGELER:   It is not.

HIS HONOUR:   No.  Thank you very much.

MR GAGELER:   Your Honour, can I say this.  It does not have to be me, but we will fit in.

HIS HONOUR:   No, no, I think it is better that it is counsel who is running the matter, highly desirable really, and I am certainly prepared to get a date that suits you, but you do not want it any later than need be, of course.

MR GAGELER:   I certainly do not.  I want it as soon as possible.  It is only that I will be in Adelaide and not sure about the video facilities from there.

HIS HONOUR:   What about Monday, 30 April?

MR GAGELER:   Yes, I could do that.

HIS HONOUR:   Or 1 May might be better.  What about 1 May, Mr Gageler?  I would list it at 9.15 and there is no daylight saving then.

MR MEADOWS:   I hope not, your Honour.

HIS HONOUR:   I am sorry, yes.  Yes, quite.

MR MEADOWS:   It is 7.15.

MR GAGELER:   I see.

HIS HONOUR:   Mr Gageler, I do not want to take you out of some other ‑ ‑ ‑

MR GAGELER:   I have the same problem in Adelaide, but I might just have to work around that.  If your Honour can make ‑ ‑ ‑

HIS HONOUR:   Why do we not do it this way?  With the understanding that we will have the matter on as quickly as possible, the matter be listed for further directions on a date to be fixed after the filing and serving of the draft special case and then we will get a date that suits everybody.  I mean, it may be that we can do it 26, 27, 28 April, something like that.  I understand what you want and we will try to do it very urgently.

MR GAGELER:   Thank you.

HIS HONOUR:   So the orders would be as proposed in the draft order for directions with the change that I have just suggested to order No 6.  Instead of the proposed order No 6, it will be that the matter be listed for further directions on a date to be fixed on and after the filing of the draft special case.

MR GAGELER:   Thank you, your Honour.

HIS HONOUR:   What happens about costs in these matters?  Do I reserve costs?

MR GAGELER:   Yes.

HIS HONOUR:   Yes, all right, and I note there will be an additional order that costs will be reserved.  Nothing further then?

MR GAGELER:   No, your Honour.

HIS HONOUR:   Thank you.

AT 9.26 AM THE MATTER WAS CONCLUDED