Intralot Australia Pty Ltd v State of Victoria
[2015] VSC 407
•14 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2013 4532
| INTRALOT AUSTRALIA PTY LTD (ACN 114 435 531) | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HARGRAVE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 July 2015 |
DATE OF JUDGMENT: | 14 August 2015 |
CASE MAY BE CITED AS: | Intralot Australia Pty Ltd v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2015] VSC 407 |
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PRACTICE AND PROCEDURE – Discovery – Inspection – Statutory prohibitions against disclosure – Whether Gambling Regulation Act 2003, ss 10.1.30 or 10.1.31 prohibit Court from ordering inspection or production of documents – Held: s 10.1.30(1) prohibits Court from ordering production by the State of documents containing ‘protected information’ – Javorsky & Anor v Commissioner of Taxation (2005) 189 FLR 228; Smith v Victoria Police (2012) 36 VR 97.
CONSTITUTIONAL LAW – Constitution Act 1975, s 85(5) – Whether engaged by Gambling Regulation Act 2003, ss 10.1.30 or 10.1.31 – Held: sections limited power of Supreme Court concerning inspection and production of relevant documents and were ineffective for want of compliance with s 85(5)– The Broken Hill Proprietary Co Ltd v Dagi & Ors [1996] 2 VR 117.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N O’Bryan AM SC with Mr D B Clough | Maddocks |
| For the Defendant | Mr D G Collins QC with Mr K Loxley | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Does Division 6 prohibit the State from providing inspection of the Tatts documents to Intralot? 2
Is any such prohibition rendered ineffective by s 85(5) of the Constitution Act 1975?...... 10
Conclusion......................................................................................................................................... 14
HIS HONOUR:
The plaintiff, Intralot Australia Pty Ltd, claims damages against the defendant, State of Victoria. Intralot’s claims arise out of a tendering process conducted by the State for licences to conduct public lotteries in Victoria. The process was governed by Part 3 of Chapter 5 of the Gambling Regulation Act 2003 (the ‘Act’). As a result of the tendering process, public lottery licences were issued to Intralot and Tattersalls’ Sweeps Pty Ltd (‘Tatts’). During the tendering process, Tatts provided information with respect to its affairs to representatives of the State.
The State filed a defence and so discovery of documents was required. The State’s list of documents claims objections to the production of the documents enumerated in Part 2 of Schedule 1 on various grounds, including that 441 relevant documents contain information with respect to the affairs of Tatts (the ‘Tatts documents’).
The issue for determination is whether the objection to production of the Tatts documents can be maintained.
The objection to production is made under Division 6 of Part 1 of Chapter 10 of the Act (‘Division 6’). In summary, and subject to specific exceptions, Division 6 relevantly prohibits any ‘regulated person’ (as defined) from disclosing to any person (including ‘to a court’), or producing ‘in a court’, ‘protected information’ — being information with respect to the affairs of any person — which was acquired by the regulated person in performing his or her functions under the Act or any ‘gaming Act or gaming regulations’ (collectively ‘gaming legislation’).
There are two principal issues:
(1) Does Division 6 prohibit the State from providing inspection of the Tatts documents to Intralot?
(2) Is any such prohibition rendered ineffective by s 85(5) of the Constitution Act 1975?
Does Division 6 prohibit the State from providing inspection of the Tatts documents to Intralot?
I will deal first with the interpretation of Division 6.
Section 10.1.29(1) contains the following relevant definitions for the purposes of the Division:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions;
…
produce includes permit access to;
protected information means information, other than pre-commitment information within the meaning of section 3.8A.24, that is—
(a) information with respect to the affairs of any person; or
(b)information with respect to the establishment or development of a casino;
regulated person means the Commission or a person who is or was—
(a)a commissioner;
(b)an employee or member of staff referred to in section 10.1.25(1) or (2);
(c)a person nominated under section 10.1.25(3);
(d)the Minister;
(e)the Secretary;
(f)an employee in the department administered by the Minister;
(g)a person nominated under section 10.1A.1(1);
(h)a person acting on behalf of the Commission, the Minister or the Secretary;
(i)a member of the Review Panel established by section 10.2A.2.
Section 10.1.30(1) contains the general prohibition against disclosure ‘to someone else’ of protected information, subject to the exceptions in sub-s (2):
10.1.30General duty of confidentiality
(1)A regulated person must not, directly or indirectly, make a record of, or disclose to someone else, any protected information acquired by the person in the performance of functions under a gaming Act or gaming regulations.
(2) Subsection (1) does not apply to—
(a)a record or disclosure made in the performance of, or for the purpose of performing or enabling someone else to perform, a function under—
(i)a gaming Act or gaming regulations; or
(ii)the Liquor Control Reform Act 1998 or regulations made under that Act; or
(b)a record or disclosure permitted or required to be made by or under another provision of this Division.
Section 10.1.31(1) contains the prohibition against disclosure ‘to’ or production ‘in’ a court of documents or protected information acquired by regulated persons in the performance of functions under gaming legislation, subject to the exceptions in sub-s (2):
10.1.31Disclosure in legal proceedings
(1)Subject to subsection (2), a regulated person is not, except for the purposes of a gaming Act or gaming regulations, permitted or required—
(a)to produce in a court a document that has come into the person’s possession or under the person's control; or
(b)to disclose to a court any protected information that has come to the person’s notice—
in the performance of functions under a gaming Act or gaming regulations.
(2)A regulated person may disclose, or be required to disclose, protected information to a court or produce, or be required to produce, in court any document containing information if—
(a)the Minister certifies that it is necessary in the public interest that the information should be disclosed to a court; or
(b)the person to whose affairs the information relates has expressly authorised it to be disclosed to a court.
Section 10.1.32 contains other exceptions to the disclosure prohibitions, most of which do not relate to the prohibitions against disclosure to a court. Section 10.1.32(1)(a) permits a regulated person to disclose protected information ‘with the consent (express or implied) of the person to whose affairs the information relates’. As appears below, Tatts has not consented.
As the High Court has repeatedly stated, the process of statutory construction involves beginning with the words of the statute and then considering those words in light of their context and the purpose of the provision to be interpreted. In Federal Commissioner of Taxation v Unit Trend Services Pty Ltd, French CJ, Crennan, Kiefel, Gageler and Keane JJ stated:[1]
As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd: ‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. Context and purpose are also important. In Certain Lloyd's Underwriters v Cross French CJ and Hayne J said:
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ ... That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.
[1](2013) 250 CLR 523, 539-540 [47] (emphasis in original; citations omitted); see also, Independent Commission against Corruption v Cunneen & Ors [2015] HCA 14 [31].
As the above statement demonstrates, the Court must approach the task of statutory construction of the text with consistency, context and the purpose of the Act as a whole firmly in mind.
Intralot contends that Division 6 has no application to the circumstances in this case, because the person with the discovery obligation, the State, is not a defined ‘regulated person’. I do not accept that submission. The definition of ‘regulated person’ includes persons who are all functionaries of the State in one way or another. It would be entirely inconsistent with the purpose of Division 6 to allow it to be circumvented by the simple device of subpoenaing the State to produce documents containing protected information which came into the State’s possession by means of its functionaries performing functions under gaming legislation.
Next, Intralot contended that the prohibition in s 10.1.30 is irrelevant to the present dispute, because s 10.1.31 was clearly intended to ‘cover the field’ with respect to the prohibition on disclosing protected information in the context of court proceedings. I do not accept that submission either.
Intralot first relied upon the heading to s 10.1.31 — ‘Disclosure in legal proceedings’ — in support of this submission. In my opinion, the heading is equivocal and cannot alter the words in s 10.1.31 which, insofar as they deal with disclosure, deal only with disclosure ‘to a court’, and not to a party in court proceedings or in relation to court proceedings. In my opinion, s 10.1.30 applies generally, including in the context of court proceedings.
On the basis that its submissions concerning the inapplicability of s 10.1.30 were rejected, Intralot contends that the prohibition against disclosure in s 10.1.30(1) does not apply to the State’s obligation to provide Intralot with inspection of the Tatts documents, because the exception in s 10.1.30(2)(a)(i) is engaged (the ‘general exception’). No reliance was placed upon the other exceptions, contained in s 10.1.32, as there is presently no evidence before the Court which could enliven any of those exceptions.
Intralot contends that the general exception is engaged, because disclosure to another person under the State’s obligation to permit inspection of discovered documents in the proceeding constitutes ‘disclosure made in the performance of, or for the purpose of performing or enabling someone else to perform, a function under [gaming legislation]’. Intralot relies on cases concerning similar, but not identical, secrecy provisions in s 16 of the Income Tax Assessment Act 1936 (Cth) (the ‘ITAA’), in particular Javorsky & Anor v Commissioner of Taxation.[2]
[2](2005) 189 FLR 228 (‘Javorsky’).
In Javorsky, White J, in the Supreme Court of New South Wales, considered the prohibition in s 16 of the ITAA in the context of proceedings brought against the Commissioner of Taxation by a liquidator, seeking to avoid a payment of tax to the Commissioner as a voidable transaction under s 588FE of the Corporations Act 2001 (Cth). The Commissioner resisted giving discovery on the basis of the prohibitions contained in s 16 of the ITAA, which then provided:
16. Officers to observe secrecy
(1) In this section, unless the contrary intention appears:
…
‘officer’ means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax.
(2)Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of ‘officer’ in subsection (1).
(2A)Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person’s duties as an officer.
(3)An officer shall not be required to produce in Court any return, assessment or notice of assessment, or to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax.[3]
[3]Ibid [8]-[9] (emphasis added).
The structure of s 16 of the ITAA is similar to that of ss 10.1.30 and 10.1.31 of the Act. There is a general prohibition on disclosure and a specific prohibition on production or disclosure in a court. The exceptions to these prohibitions are, however, expressed differently in s 16 of the ITAA.
The exception against the general prohibition is widely expressed in s 16(2A). It permits an officer to divulge information ‘in the performance of the person’s duties as an officer’. White J decided that this exception permitted an officer of the Commissioner to provide inspection of documents containing the relevant information if ordered by a court to do so.[4] White J expressed his reasons for this conclusion in the following terms:[5]
[4]Ibid [20]-[23].
[5]Ibid (citations in original).
20Irrespective of the scope of the prohibitions in s 16(2) and s 3C(2), the exception to that prohibition is satisfied.
21In Canadian Pacific Tobacco Co Ltd v Stapleton,[6] Dixon CJ considered the scope of s 16(2). At that time, s 16(2) included the exception which is now found in s 16(2A). It then provided:
[6](1952) 86 CLR 1.
An officer shall not either directly or indirectly, except in the performance of any duty as an officer and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any such information so acquired by him.
22Dixon CJ said that the words in the exception should be given a wide interpretation. His Honour said:[7]
The exception governs all that is incidental to the carrying out of what is commonly called ‘the duties of an officer’s employment’; that is to say, the functions and proper actions which his employment authorises.
23If the defendant were required to produce documents by an order of the Court for discovery, the obedience to such an order would readily fall within the concept of the performance of the defendant’s duties as an officer.
[7]Ibid 6-7.
Section 10.1.30(2)(a) uses different language to s 16(2A) of the ITAA. The general exception allows disclosure ‘in the performance of … a function under [gaming legislation]’. In my opinion, the limitation of the exception to functions ‘under’ gaming legislation makes the general exception narrower than that in s 16(2A) of the ITAA. Intralot contended that a wider interpretation should be given, relying in particular on Smith v Victoria Police,[8] a decision of Ferguson J (as she then was).
[8](2012) 36 VR 97.
In Smith v Victoria Police, Ferguson J considered an exception to a disclosure prohibition in s 22(1) of the Whistleblowers Protection Act 2001. The relevant exception was expressed in s 22(1)(a) in the following terms:
…except for the purposes of —
(a)the exercise of the functions under this Act of [certain named parliamentarians and officers of the State including the Chief Commissioner of Police]
The proceeding concerned a claim by Smith (a member of Victoria Police) for damages. The State discovered certain files in the possession of the Chief Commissioner of Police but objected to their production on the grounds that to do so would contravene the prohibition against disclosure in s 22(1) of the Whistleblowers Protection Act 2001. Smith relied upon the exception set out above. Ferguson J held that clear legislation was required to broaden the exclusions from the requirement to produce relevant documents which would assist the Court in adjudication of the issues in dispute. Her Honour stated:[9]
The importance of the discovery process in litigation should not be forgotten. There are exceptions to the production by a party of relevant documents and limitations that the Court may impose on the breadth of discovery to be given. However, clear legislation would be required to broaden the exclusions from the requirement to produce relevant documents which will assist the Court in adjudication of the issues in dispute. As Sheppard J said in Sanko Steamship Co Ltd v Sumitomo Australia Ltd:
Courts entrusted with the task of settling disputes between citizens have an important public function. There is a public interest in the proper administration of justice. The powers of courts to compel the production of documents have an ancient origin and have been restated and, in the case of courts having a statutory origin, re-enacted many times … One would not lightly infer that those powers were circumscribed in any way. That is why the legislature, when enacting the Income Tax Assessment Act, has been careful to include in s 16 an express provision limiting the powers of courts to compel the production of documents. Even so, the courts have nevertheless held that the Commissioner remains, in an appropriate case, obliged to give discovery of documents in a case in which he is a party.
[9]Ibid [42] (citations omitted).
In reaching her conclusion, Ferguson J considered Canadian Pacific Tobacco Co Ltd v Stapleton,[10] referred to above in the quoted passage from Javorsky, and other cases concerning similar legislation.[11] Her Honour concluded, however, that the matter was to be determined by reference to the words of the particular exception in the Whistleblowers Protection Act 2001, interpreted in the context of the relevant statutory purpose and the Act as a whole. In the circumstances of that case, her Honour concluded that the exception should not be construed narrowly but should be given a wide interpretation, so as to promote the purpose of the Act to protect whistleblowers.[12] Moreover, her Honour heard and considered argument concerning the functions of the Chief Commissioner under the legislation.[13]
[10](1952) 86 CLR 1.
[11]Smith v Victoria Police (2012) 36 VR 97, 100-105 [12]-[30].
[12]Ibid 109-111 [46]-[58].
[13]Ibid [47]-[53].
In this case, the Act alone comprises two volumes covering 1,868 pages and there is more gaming legislation specifically referred to in the general exception. Intralot made no attempt to identify the functions of regulated persons under gaming legislation which may be said to include providing inspection of documents under the discovery and inspection process of the Court. Nor did Intralot make submissions concerning any particular functions of regulated persons under gaming legislation in the context of the obvious purpose of Division 6 — to prevent disclosure of protected information subject only to specified exceptions.
In my opinion, the purpose of Division 6 supports giving a narrow interpretation to the clear words of the general exception. So construed, the general exception does not include providing protected information to Intralot by way of inspection of the Tatts documents.
If I am wrong in my conclusion that s 10.1.30 is relevant to this issue, and s 10.1.31 contains the only relevant prohibition, I agree with Intralot that s 10.1.31 does not prohibit inspection of the Tatts documents.
The relevant question is whether, by complying with an order that it provide inspection of the Tatts documents to Intralot, the State is either producing documents ‘in a court’ or disclosing protected information ‘to a court’. In my opinion, s 10.1.31 does not direct itself to that question. A contrary conclusion concerning s 16(3) of the ITAA was reached by White J in Javorsky,[14] but that view was based upon the particular provisions of the Supreme Court Rules in New South Wales, which required any party who provides a list of documents to produce all documents listed at the trial of the proceeding. On this basis, White J reasoned that, although delayed until the trial, the effect of ordering discovery would be to require the Commissioner to produce documents containing information respecting the affairs of another person to a court, in contravention of s 16(3) of the ITAA.[15] There is no such requirement in this State. There is no equivalent rule in the Supreme Court (General Civil Procedure) Rules 2005 which requires a party who has provided a list or affidavit of documents to produce all of the discovered documents at trial.
[14](2005) 189 FLR 228.
[15]Ibid [38].
I conclude that s 10.1.30(1) prohibits the State from providing inspection to Intralot of the Tatts documents. There is no such prohibition in s 10.1.31. Section 10.1.31(1) does, however, prohibit a court from requiring the State to produce the Tatts documents in court or to disclose the protected information in those documents to that court. This Court falls within the definition of ‘court’ in Division 6.
Is any such prohibition rendered ineffective by s 85(5) of the Constitution Act 1975?
My conclusion that Division 6 prohibits the State from providing inspection of the Tatts documents to Intralot, and prohibits this Court from requiring the State to produce the Tatts documents in Court or to disclose protected information in those documents to the Court, raises the next issue: are those prohibitions rendered ineffective by s 85(5) of the Constitution Act 1975?
Section 85 of the Constitution Act 1975 relevantly provides:
85Powers and jurisdiction of the Court
(1)Subject to this Act the [Supreme] Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.
… [Repealed]
(3)The [Supreme] Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.
(4)This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the [Supreme] Court.
(5)A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless —
(a)the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and
(b)the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and
(c)the statement is so made—
(i)during the member’s second reading speech; or
(ii)after not less than 24 hours’ notice is given of the intention to make the statement but before the third reading of the Bill; or
(iii)with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.[16]
[16]Emphasis added.
Division 6 does not directly repeal or amend s 85. Intralot contends that Division 6 implicitly amends s 85(3) by limiting the Court’s powers or authorities concerning discovery, inspection and production of documents as they stood immediately before the commencement of the Supreme Court Act 1986 on 1 January 1987. The State contends that s 85 is irrelevant, as it says nothing about the plenary power of the State to prohibit the production of documents or information as it sees fit. For the following reasons, I do not accept the State’s contention.
First, before the commencement of the Supreme Court Act 1986, the relevant powers and authorities of the Court with respect to discovery, inspection and production were conferred by the Supreme Court Act 1958 and the General Rules of Procedure in Civil Proceedings 1985 (the ‘1985 Rules’).
Second, s 25 of the Supreme Court Act 1958 gave the judges of the Court power to make Rules of Court for specified matters, including:
(i)Generally for regulating any matters relating to the practice and procedure of the Court or to the duties of the officers thereof or to the costs of proceedings therein.
Third, discovery, inspection and production of relevant documents are clearly matters relating to the practice and procedure of the Court.
Fourth, pursuant to its rule-making power under s 25(i) of the Supreme Court Act 1958, the judges of this Court made the 1985 Rules, which gave the Court the following powers in relation to discovery, inspection and production of documents:
(1) Order 31 Rule 12 provided that in any action commenced by writ of summons, any party may serve upon any opposite party a notice for discovery;
(2) Order 31 Rule 13 provided that a party served with a notice for discovery shall file and serve an affidavit of discovery;
(3) Order 31 Rule 13A provided that, if a party neglects or refuses to make discovery or made insufficient discovery, a judge may order discovery upon such terms as he (or she) shall think fit;
(4) Order 31 Rule 14 provided that the Court or a judge could at any time during the pendency of a proceeding order the production by a party of any documents in that party’s possession or power relating to the dispute;
(5) Order 31 Rule 15 provided that any party to a proceeding was entitled to give a notice to any other party to produce any document referred to in an affidavit filed by the other party;
(6) Order 31 Rule 17 provided for inspection to be given in response to any such notice to produce;
(7) Order 31 Rule 18 provided a power to a judge to make an order for inspection if inspection was not given following service of a notice to produce; and
(8) Order 31 Rule 19(2) gave the Court or a judge power to inspect a document over which a claim of privilege was made, for the purpose of deciding the validity of that claim.
Fifth, the evidence establishes that the Tatts documents are relevant to the issues in the proceeding and no claim of privilege of any kind is made in respect of them. The sole objection to production is that the Tatts documents are ‘subject to the duty of confidentiality under s 10.1.30’ of the Act.
Sixth, for the reasons given above, s 10.1.30(1) prohibits the State from providing inspection of the Tatts documents to Intralot, and s 10.1.31 prohibits the Court from requiring production of the Tatts documents in Court or the disclosure of the protected information in those documents to a court. In my opinion, however, those prohibitions are ineffective in relation to this Court because:
(1) they modify, restrict or limit the powers and authorities of this Court under the 1985 Rules in connection with discovery, inspection and production of documents. In particular, the prohibitions limit this Court’s powers to order production of relevant documents, and to order inspection of documents where a notice to produce was not complied with; and
(2) the ‘manner and form’ requirements in s 85(5)(a), (b) and (c) of the Constitution have not been complied with. In that regard, it is clear that s 85(5)(a) was not complied with, and that is enough. In comparison, s 11.1.7 of the Act specifically invokes s 85 with respect to s 3.2.5.
My conclusion that the prohibitions in Division 6 are ineffective in proceedings in this Court is consistent with the reasons of Phillips JA in The Broken Hill Proprietary Co Ltd v Dagi & Ors,[17] where his Honour considered the general structure and operation of s 85 of the Constitution Act 1975. In summary, his Honour stated:
[17][1996] 2 VR 117.
(1) ‘any attempt to alter a subsection of s 85 will attract the requirements of sub-s (5) unless the alteration be achieved by a provision “which directly repeals or directly amends” s 85’.[18]
(2) In the absence of direct repeal or amendment to s 85, s 85(5) provides on its proper interpretation that the alteration ‘will be ineffective’ unless the ‘manner and form requirements’ of s 85(5) are complied with.[19]
(3) A provision in an Act will be taken to ‘alter or vary’ the Court’s jurisdiction, powers or authorities ‘whenever an Act purports to modify or restrict what are otherwise the jurisdiction, powers and authorities of this Court.’[20] Later, his Honour spoke in terms of a provision which ‘operates as a limitation upon the powers of this Court’ as attracting the need for compliance with the manner and form requirements of s 85(5).[21]
[18]Ibid 185.
[19]Ibid 185-6. See also 149-150 (Brooking JA), 158 (Tadgell JA).
[20]Ibid 187 (emphasis added).
[21]Ibid (emphasis added).
Conclusion
For the above reasons, I conclude as follows:
(1) On its proper construction, s 10.1.30(1) of the Act prohibits the State from providing inspection of the Tatts documents to Intralot.
(2) On its proper construction, s 10.1.31 of the Act prohibits this Court from requiring the State to produce the Tatts documents in Court or to disclose the protected information in those documents to the Court.
(3) Those prohibitions are, however, ineffective by operation of s 85(5) of the Constitution Act 1975.
I will therefore make orders requiring the State to provide inspection of the Tatts documents. Before inspection takes place, however, Tatts should be given an opportunity to make submissions to the Court as to why inspection by Intralot should not be allowed or should be subject to any limitations, for example because of commercial confidentiality in a trade rival context.[22] In this regard, I note that Tatts was informed by the State of this application by letter dated 8 July 2015 and has made no application to intervene. Further, Intralot approached Tatts seeking its consent under s 10.1.32(a) of the Act to the disclosure of its documents. Tatts advised it was not in a position to consent to the disclosure without having reviewed the relevant documents, which it was not prepared to do unless Intralot indemnified it for its costs. In these circumstances, Intralot deferred its request that Tatts consent until the issues raised in this application were determined by the Court.
[22]For example, Mobil Oil Australia Pty Ltd v Guina Developments Pty Ltd [1996] 2 VR 34.
I will hear the parties as to the form of orders, and as to costs.
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