Betfair Pty Limited v Racing New South Wales (No 4)

[2009] FCA 923

FEDERAL COURT OF AUSTRALIA

Betfair Pty Limited v Racing New South Wales (No 4) [2009] FCA 923

BETFAIR PTY LIMITED v RACING NEW SOUTH WALES and HARNESS RACING NEW SOUTH WALES

NSD 1566 of 2008

PERRAM J
19 AUGUST 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

JUDGE:	PERRAM J
DATE OF ORDER:	19 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first and second respondents provide a list identifying each of the documents falling within paragraphs 4, 5, 6 and 7 of Part 2 of Schedule 1 of their verified lists by Wednesday 2 September 2009, together with an affidavit sworn by an appropriate person explaining the basis for the privilege asserted. 

2.To the extent that the Attorney-General or the Director General of Community (NSW) wishes to make any privilege claim in relation to the first and second respondents’ discovered documents, affidavits in support of such claims are to be filed and served by Wednesday 2 September 2009. 

3.Order 11 of 25 February 2009 be varied so that persons include expert witnesses.

4.Any application to vary the confidentiality regime and any affidavit in support thereof to be filed and served by Friday 21 August 2009.  Such application to be returnable before me on Tuesday 25 August 2009 for the purposes of fixing it for a hearing. 

5.Costs to be costs in the cause.

6.The matter be stood over for further directions on 25 August 2009.

7.The parties have liberty to apply on 1 day’s notice.

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

JUDGE:	PERRAM J
DATE:	19 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The first question which arises in this matter is whether I should now bring the issue of privilege to a head.  Whilst the timeframes of the demands of the applicant (“Betfair”) that the respondents articulate the basis of their privilege were, in my opinion, unreasonable, the interests of case management require this issue to be resolved promptly particularly in light of the impending hearing date.  Accordingly, I have decided that the basis of the privilege claims will need to be articulated by 2 September 2009. 

2. The next issue is whether the respondents should be obliged to indicate to Betfair in advance of the date upon which their expert evidence is due the nature of that expert evidence.  I have concluded that they are not so obliged.    The timetable was set some time ago and I can see no reason why Betfair should be released from the practical consequences of its operation.

3. The next issue is whether the confidentiality regime imposed on 25 February 2009 should be amended to permit confidential documents to be shown to the respondents’ experts.  I have concluded that such access must be granted.  However, I have also concluded that there is no reason why the identity of the respondents’ experts should remain unknown.   Accordingly, I have decided to vary the confidentiality order of 25 February 2009 by adding the respondents’ experts to the list of persons referred to in that order. 

4. The next issue is whether, more generally, the confidentiality regime should be varied because of alleged over-claiming by Betfair.  I have concluded that the evidence before me does not make good that claim and that if that matter is to be pursued it will need to be by a properly articulated motion, which should be filed together with an affidavit by Friday 21 August 2009.   That motion will be returnable for directions only on Tuesday 25 August 2009 for the purpose of fixing a date. 

5. The next issue is whether I should compel Betfair to reconsider the extent of its redactions.  In my opinion the order of the Full Court made yesterday will naturally cause a revision of that topic.  I see no reason to make an additional order.  I do not think that the material before me allows me to conclude that Betfair’s redactions have been overzealous.  More material will be needed than merely the confidential exhibit placed before me. 

6. The next issue is costs.  The appropriate order is that costs be costs in the cause.  There is to be no order as to costs in relation to the Attorney-General.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       19 August 2009

Counsel for the Applicant:	Mr A. Roberston SC and Ms K. C. Morgan
Solicitor for the Applicant:	Gilbert + Tobin
Counsel for the Respondents:	Mr S. A. Kerr
Solicitor for the Respondents:	Yeldham Price O'Brien Lusk
Counsel for the Intervener:	Mr J. Kirk
Solicitor for the Intervener:	NSW Attorney-General

Date of Hearing:	19 August 2009
Date of Judgment:	19 August 2009