Betfair Pty Ltd v Racing New South Wales (No 15)
[2010] FCA 736
•16 July 2010
FEDERAL COURT OF AUSTRALIA
Betfair Pty Ltd v Racing New South Wales (No 15) [2010] FCA 736
Citation: Betfair Pty Ltd v Racing New South Wales (No 15) [2010] FCA 736 Parties: BETFAIR PTY LTD v RACING NEW SOUTH WALES, HARNESS RACING NEW SOUTH WALES and ATTORNEY-GENERAL (NEW SOUTH WALES) File number: NSD 1566 of 2008 Judge: PERRAM J Date of judgment: 16 July 2010 Catchwords: EVIDENCE – Suppression of – 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 Ltd v Racing New South Wales (No 5) [2009] FCA 1011 cited
Betfair Pty Ltd v Racing New South Wales (No 9) [2009] FCA 1349 cited
Betfair Pty Ltd v Racing New South Wales (No 12) [2009] FCA 1519 cited
Hogan v Australian Crime Commission [2010] HCA 21 cited
Sportsbet Pty Ltd v State of New South Wales [2010] FCA 127 citedDate of hearing: 6 April 2010 Date of last submissions: 6 April 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: Mr A J Meagher SC with Mr P W Flynn Solicitor for the Applicant: Gilbert & Tobin Solicitor for the Respondents: Yeldham Price O'Brien Lusk Solicitor for the Intervener: New South Wales Crown Solicitor’s Office Solicitor for Tabcorp Freehills
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1566 of 2008
BETWEEN: BETFAIR PTY LTD
ApplicantAND: RACING NEW SOUTH WALES
First RespondentHARNESS RACING NEW SOUTH WALES
Second RespondentATTORNEY-GENERAL (NEW SOUTH WALES)
Intervener
JUDGE:
PERRAM J
DATE OF ORDER:
16 JULY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The parties bring in short minutes of order within 28 days reflecting the reasons for judgment contained herein.
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 1566 of 2008
BETWEEN: BETFAIR PTY LTD
ApplicantAND: RACING NEW SOUTH WALES
First RespondentHARNESS RACING NEW SOUTH WALES
Second RespondentATTORNEY-GENERAL (NEW SOUTH WALES)
Intervener
JUDGE:
PERRAM J
DATE:
16 JULY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
At various times throughout this litigation the Court has put in place confidentiality régimes including orders made pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). Section 50 provides:
Prohibition of publication of evidence etc.
(1)The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
(2) This section does not limit section 23HC.
That power is enlivened only on the Court forming the opinion of necessity referred to. The use of that word and the two matters it is related to – the administration of justice and national security – show that the provision is not concerned with trivialities: Hogan v Australian Crime Commission [2010] HCA 21 at [30] per the Court citing Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 133 per Bowen CJ.
The confidentiality régimes in this proceeding have fallen into two categories. In the first the orders dealt with the degrees of access the parties and their representatives were entitled to have to documents produced under compulsory process. The second was concerned with documents which were placed into evidence. The necessity for these régimes arose because of the commercial position of one of the parties, Betfair, and that of a third party, the TAB Ltd (and related companies). I accepted at an early stage in the litigation that those two sets of entities were, in substance, trade rivals. Betfair is a substantial world-wide betting exchange and the TAB conducts, inter alia, substantial betting operations in New South Wales. The connection of the TAB to this litigation is provided by the provisions of the Racing Distribution Agreement which require the TAB to fund in large measure the New South Wales racing authorities who are parties to this case and who, in turn, are involved in the formulation of the TAB’s strategies through a committee known as the strategy committee. In Betfair Pty Ltd v Racing New South Wales (No 5) [2009] FCA 1011 I accepted that the racing authorities and Betfair stood, therefore, in a position which was analogous to that of trade rivals.
In the same decision, I accepted that the ordinary implied undertaking would be sufficient to protect the documents produced under compulsory process but that there might be a category of documents for which an augmented régime – limiting access by clients – would be necessary. In Betfair Pty Ltd v Racing New South Wales (No 9) [2009] FCA 1349 I made such orders.
Once the trial was underway corresponding orders were eventually made dealing with the material which was placed into evidence: Betfair Pty Ltd v Racing New South Wales (No 12) [2009] FCA 1519. The orders which are presently in place are complex. Similar orders were made in the related Sportsbet proceeding. However, in Sportsbet Pty Ltd v State of New South Wales (No 14) [2010] FCA 127 I indicated that I was of the view that the régime should be unwound after the materials in question were more than seven and a half months old. The reason I did this was because I did not believe that their commercially sensitive nature would subsist after that period and, therefore, that the trade rival problem would dissipate. I subsequently invited further submissions in this proceeding as to why a similar course should not now be undertaken.
In response, Betfair submitted that there was no need to alter the régime administering the treatment of documents which had been obtained pursuant to compulsory process. This was because the documents were not in evidence and, the proceedings being at an end (at least at first instance), there was no utility in now tampering with that régime. I accept this submission.
The more difficult question concerns the material which was placed into evidence. Betfair’s claim for confidentiality was made over 15 volumes of documents which were exhibited to an affidavit of Mr Blanksby sworn on 30 October 2009 on the eve of the trial. Confidentiality was claimed in respect of the four categories which I accepted in Betfair (No 9) [2009] FCA 1349. That régime was then extended to evidence in Betfair (No 12) [2009] FCA 1519. An affidavit of Mr Blanksby, this time of 25 November 2009, was relied upon. At that time a fifth category was added consisting of commercially sensitive information in a shareholders’ agreement between Crown Ltd and The Sporting Exchange Ltd and an order was also made in respect of certain aspects of the transcript of Mr Twaits’ cross-examination which had occurred in camera.
Betfair accepts that most of the confidentiality in these materials will have expired by 25 November 2010 but does not accept that this is so with respect to the portions of the transcript which are presently suppressed or the documents concerning the shareholder arrangements between Crown Ltd and The Sporting Exchange Ltd.
The shear volume of material in question in this case, combined with the absence of a contradictor, means that it would be administratively very complex to have differing expiry dates for different documents. I accept that 25 November 2010 is an appropriate date for the confidentiality régime generally to expire. I also accept that the transcript of Mr Twaits’ cross-examination to the limited extent that it is the subject of a s 50 order and the documents concerning Crown Ltd and The Sporting Exchange Ltd should remain subject, as Betfair submits, to an ongoing s 50 order.
The Tabcorp parties make a similar claim in relation to various aspects of the evidence consisting, especially, of certain elements of the Racing Distribution Agreement and related documents. All of the parts pointed to fall squarely into the trade rival category. Their disclosure would reveal to Betfair the inner workings of Tabcorp’s business and would, I accept, in all likelihood do considerable commercial damage to it.
Accordingly, it is appropriate to accede to Tabcorp’s application. The Racing Distribution Agreement endures until 2097 and Tabcorp seeks an order that the nominated provisions remain confidential until that period. I can identify no reason why that should not be the case although the period claimed is very extensive. Again, it emerges from the status of the TAB as a trade rival to Betfair.
Tabcorp also claimed a non-publication order with respect to certain parts of the Deed of Mutual Release under which Racing New South Wales and Harness Racing New South Wales repay to the TAB certain moneys collected by them. The relevant parts of that deed have been referred to in the principal judgment. The parts presently under claim relate to confidential aspects of the conduct of the TAB’s business which it would be useful for Betfair to know and which do not bear on the issues in this litigation. In those circumstances it is appropriate to accede to Tabcorp’s application. For similar reasons, it is also appropriate to accede to Tabcorp’s application in so far as it concerns the other documents nominated by it concerning its confidential financial materials.
In those circumstances I accept the submissions made by Betfair and Tabcorp. The parties are to bring in short minutes of order giving effect to these reasons within 28 days.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 16 July 2010
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