CrownBet Pty Ltd v State of New South Wales (No 2)

[2017] NSWSC 1549

Supreme Court

New South Wales

Medium Neutral Citation:	CrownBet Pty Ltd v State of New South Wales (No 2) [2017] NSWSC 1549
Hearing dates:	On the papers
Decision date:	15 November 2017
Jurisdiction:	Equity - Commercial List
Before:	Stevenson J
Decision:	Order that the Amended Summons be dismissed. No order as to the costs of the proceedings with the intent that all parties bear their own costs
Catchwords:	COSTS – where plaintiff sought declaration that proposed conduct not unlawful – where court declined to make declaration as a matter of discretion – where only active defendant not a disinterested contradictor
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) Unlawful Gambling Act 1998 (NSW)
Cases Cited:	CrownBet Pty Ltd v State of New South Wales [2017] NSWSC 1470
Category:	Costs
Parties:	CrownBet Pty Ltd (Plaintiff) State of New South Wales (First Defendant) TAB Limited (Second Defendant) ClubsNSW Pty Ltd (Third Defendant) Warners Bay Bowling Club Co-Op Ltd trading as Warners Bay Sports Club (Fourth Defendant) ClubsNSW Digital Services Pty Limited (Fifth Defendant)
Representation:	Counsel: B W Walker SC with P D Herzfeld and K Boettcher (Plaintiff) P J Brereton SC with R C A Higgins SC and B Lim (Second Defendant)   Solicitors: Minter Ellison (Plaintiff) Crown Solicitor’s Office (First Defendant) Herbert Smith Freehills (Second Defendant) Baker & McKenzie (Third & Fifth Defendants) Henry Davis York (Fourth Defendant)
File Number(s):	SC 2017/157108

Judgment

1. I gave judgment in this matter on 27 October 2017 (CrownBet Pty Ltd v State of New South Wales [2017] NSWSC 1470).

2. I shall use the same abbreviations here as in that judgment.

3. I declined to exercise my discretion to make the declaration sought by CrownBet for the reasons set out in that judgment.

4. The matter remaining for consideration is the costs of the proceedings.

5. I have received submissions from CrownBet and TAB on that question. It is agreed that I should decide the issue on the papers.

6. The general rule is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1.

7. As I have concluded that the Amended Summons should be dismissed (see [164] of the judgment), application of that general rule would result in an order that CrownBet pay TAB’s costs. However, the Court’s discretion as to costs is unfettered and must be exercised according to what the justice of the case requires.

8. There are a number of factors at play.

9. The first is that, although I do not see this as a “test case” (as its object was to achieve a favourable commercial outcome for CrownBet), it may have had ramifications and consequences beyond the immediate parties; in particular for the clubs represented by ClubsNSW.

10. The second is that, as Liquor & Gaming NSW decided to play no role in the proceedings (it entered a submitting appearance: see [10] to [12] of my judgment), I was assisted by the fact that TAB played the role of contradictor.

11. However, just as it could not be said that CrownBet brought these proceedings in the public interest, it could not, in my opinion, be said that TAB was motivated by altruism when it adopted that role. As I observed at [19] of the judgment, TAB was not a disinterested contradictor. It had an obvious interest in protecting its position as a competitor of CrownBet.

12. So far as concerns the “event” that costs normally follow, the issue that occupied most of the time before me was whether the implementation of Phase 1 of the CrownBet “offering” would cause CrownBet or the Club (or both) to contravene one or more sections of the Unlawful Gambling Act 1998 (NSW).

13. As I declined to express any opinion about that matter, neither party can be said to have achieved success.

14. In substance, I see these proceedings as being a tussle between two major players in the wagering industry, both of whom were seeking to obtain a commercial advantage over the other.

15. Although I concluded that I should express no view as to the lawfulness or otherwise of the arrangements that CrownBet proposes, I do not see how it could be contended that either CrownBet or TAB has emerged from the field of battle as a clear victor.

16. Taking all these matters into consideration, the conclusion to which I have come is that there should be no order as to the costs of the proceedings; with the intent that CrownBet and TAB bear their own costs.

17. I order that the Amended Summons be dismissed.

18. I make no order as to the costs of the proceedings, with the intent that all parties bear their own costs.

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Decision last updated: 17 April 2018