Sportsbet Pty Ltd v Moraitis
[2008] NTSC 54
•23/12/2008
Sportsbet Pty Ltd v Moraitis [2008] NTSC 54
PARTIES: SPORTSBET PTY LTD v MORAITIS TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORYJURISDICTION: SUPREME COURT OF THE
NORTHERN TERRITORY
EXERCISING TERRITORY
JURISDICTIONFILE NO: 138 of 2007 (20733770) DELIVERED: 22 December 2008 HEARING DATE: 26 June 2008 JUDGMENT OF: SOUTHWOOD J CATCHWORDS: Jurisdiction of Courts (Cross Vesting) Act (NT)
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Bateman Project Engineering Pty Ltd v Pegasus Gold Australia Pty Ltd
[2000] NTSC 3
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Bond Brewing Holdings v National Australia Bank (1990) 1 ACSR 616
Calvert v William Hill Credit Ltd [2008] EWHC 454 (Cth).
Delfino v Trevis (No1) [1963] NSWR 11191
Huddart Parker v Ship Mill Hill (1950) 81 CLR 502
Issitch v Worrell (2000) 172 ALR 586
James Hardie & Coy Pty Ltd v Barry and Another (2000) 50 NSWLR 357
Leithead v Leithead (1991) 109 FLR 177
Mattock v Mattock (1989) 97 FLR 112
Re Morgan (1887) 35 Ch D 492
Northern Territory Housing Commission v Territory Bricks Pty Ltd (1983)
71 FLR 273
Rickham Pty Ltd & Rosenhain v Duralla Creek Pty Ltd (Unreported,
Supreme Court of Victoria, Hansen J, 15 December 1995)
Rick Manietta Pty Ltd v National Mutual Life Association of Australia Ltd
(Unreported, Supreme Court of Victoria, McDonald J, 8 September 1995);
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460
Swanson v Harley (1995) 103 NTR 25
Toren Fishing and Trading Ltd v McKenzie Family Nominees Pty Ltd and
Ors (1995) 4 NTLR 195
West’s Process Engineering Pty Ltd (Administrator Appointed) v Westralian
Sands Ltd (Unreported, Supreme Court of New South Wales, Rolfe J,
6 August 1997
Woodward v H & J Nominees Pty Ltd (1993) 17 Fam LR 327
World Firefighters [2001] QSC 164REPRESENTATION:
Counsel:
Plaintiff: T North SC Defendant: A Sullivan QC Solicitors:
Plaintiff: Minter Ellison Defendant: De Silva Hebron Judgment category classification: B
Judgment ID Number: Sou0815 Number of pages: 29 IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSportsbet Pty Ltd v Moraitis [2008] NTSC 54
No 138 of 2007 (20733770)
BETWEEN:
SPORTSBET PTY LTD
Plaintiff
AND:
STEPHEN MORAITIS
Defendant
CORAM: SOUTHWOOD J REASONS FOR JUDGMENT (Delivered 22 December 2008)
Introduction
By summons, under s 5(1) of the Jurisdiction of Courts (Cross Vesting) Act (NT), the defendant applies to have this proceeding transferred to the Federal Court of Australia (New South Wales Registry). The application is opposed.
The plaintiff is a company carrying on business in the Northern Territory of Australia as a sports bookmaker, taking bets by telephone and via the internet on horse racing and other sporting events. The plaintiff is licensed to do so under the Racing and Betting Act (NT). The bets are physically taken in Darwin. The plaintiff claims $3,867,846 in unpaid bets, plus interest and costs from the defendant.
The defendant was a customer of the plaintiff. The defendant confesses that he is indebted to the plaintiff for the amount claimed but seeks to avoid liability on three alternative grounds: forgiveness of the debt, settlement of the plaintiff’s claim, and a set-off. The set-off is not particularised in the defendant’s defence which has been filed in this proceeding. The set-off is based on a statement of claim that the defendant has filed in a proceeding he has commenced against the plaintiff and Matthew Terence Tripp in the Federal Court.
Mr Tripp is a director and the Chief Executive Officer of the plaintiff. He resides in Melbourne. The defendant resides in Sydney.
| [5] | has made two claims in the proceeding in the Federal Court. First, under |
In an attempt to recover his gambling losses to the plaintiff, the defendant the plaintiff should have known was a problem gambler.
| defendant for payment of the amount of $3, 867,846 for unpaid bets. On 10 December 2007, in response to the plaintiff’s demands, Mr Ron Finlay, who was then the solicitor for the defendant, wrote a letter to Mr Tripp. In it he alleged that the plaintiff had broken its Responsible Gambling Code of Conduct by allowing the defendant, who is a problem gambler, to re-register as a player after he had voluntarily excluded himself from betting in March 2005. Mr Finlay informed Mr Tripp that the defendant had resolved to recover his gambling losses by commencing a proceeding in the Federal Court. |
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History of the Proceedings
The history of the two proceedings is as follows.
The defendant began placing bets with the plaintiff in 2002 or thereabouts. From time to time the defendant suffered substantial losses to the plaintiff. In the latter part of 2007, the plaintiff began to make demands of the
On 14 December 2007, the plaintiff filed the Writ in this proceeding. On provided for a moratorium on taking further steps in any court proceedings until 29 February 2008, or such other date that may be agreed in writing, so the parties could try and negotiate a settlement of their disputes. Clause 2 of the agreement acknowledged that the defendant was at liberty to file and serve any defence and/or cross claim in this proceeding and/or commence proceedings against the plaintiff in any other jurisdiction after the end of the moratorium. According to the plaintiff the negotiations were unsuccessful and on or about 4 April 2008, the plaintiff advised the defendant that it intended to press on with its claim in this Court.
On 15 April 2008, the solicitors for the defendant wrote to the solicitors for the plaintiff advising them that the defendant would be commencing proceedings in the Federal Court and would be making an application under the cross vesting legislation to transfer this proceeding to the Federal Court. On 1 May 2008, the plaintiff filed the statement of claim in this proceeding. On 28 May 2008, the defendant filed his application in the Federal Court and, on 29 May 2008, the defendant filed his defence in this Court.
On 2 June 2008, the defendant filed the summons seeking an order that under s 5(1) of the Jurisdiction of Courts (Cross Vesting) Act (NT) this proceeding be transferred to the Federal Court. On 13 June 2008, the
plaintiff filed a summons in this Court seeking summary judgment. On
26 June 2008, I determined that the defendant’s application to transfer this
proceeding to the Federal Court should be heard and determined before the
plaintiff’s summons for summary judgment.Jurisdiction of Courts (Cross Vesting) Act
[11] Subsection 5(1) of the Jurisdiction of Courts (Cross Vesting) Act (NT) states:
(1) Where – (a)
a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Supreme Court; and
(b) it appears to the Supreme Court that –
(i)
the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be
determined by the Federal Court or the Family Court;
(ii) having regard to –
(A) whether, in the opinion of the Supreme Court, apart from this Act and a law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from an accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being
instituted in the Federal Court or the Family Court;
(B) the extent to which, in the opinion of the Supreme Court,
the matters for determination in the relevant proceeding
are matters arising under or involving questions as to the
application, interpretation or validity of a law of the
Commonwealth and not within the jurisdiction of the
Supreme Court apart from this Act and a law of the
Commonwealth or another State relating to cross-vesting
of jurisdiction; and(C) the interests of justice, it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be; or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court,
the Supreme Court shall transfer the relevant proceeding to the Federal Court
or the Family Court, as the case may be.
| [12] | proceeding that has been commenced in this Court to the Federal Court. |
There are three situations in which this Court may be required to transfer a the proceeding; and it is more appropriate that the relevant proceeding be determined by the Federal Court: s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross Vesting) Act (NT). Thirdly, where it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court. That is, when it is considered that this Court is the non-preferred forum for a duly instituted proceeding: s 5(1)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act (NT).
| [13] | contained in s 5(1)(b)(i) and s 5(1)(b)(iii) of the Jurisdiction of Courts |
The relevant provisions for the transfer of this proceeding are those as, regardless of the provisions of the cross vesting legislation, this proceeding was capable of being instituted in this Court and the matters for determination are within the ordinary jurisdiction of this Court.
| [16] |
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The relevant legal principles
As to s 5(1)(b)(i) of the Jurisdiction of Courts (Cross Vesting) Act (NT), two questions arise: First, is the proceeding in this Court related to the proceeding in the Federal Court? Secondly, which is the more appropriate court for the determination of this proceeding?
In my opinion, the proceeding in the Federal Court is related to the proceeding this Court. Both this Court and the Federal Court may be required to decide the same substantive questions about the alleged unconscionable conduct and negligence of the plaintiff.
In contractual cases there are three broad factors to be taken into account when applying the above test. First, the governing law of any contract in dispute. Secondly, the connection between the alleged conduct or the
subject matter of the proceeding and the jurisdiction and thirdly, the cost
and inconvenience to the parties associated with the forum selected by the
plaintiff. In relation to proceedings based on tort the place of the tort is
also a relevant factor to be taken into account. As is the residence of the
parties.[19] Matters falling solely within s 5(1)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act (NT) are also to be approached by determining which court is the more appropriate court in the sense discussed by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd[13]: James Hardie & Coy Pty Ltd v Barry and Another[14]; Bankinvest AG v Seabrook15.
The defendant’s submissions
In support of the defendant’s application to transfer this proceeding to the Federal Court, Senior Counsel for the defendant, Mr Sullivan QC, made the following submissions. So far as the legal issues in both proceedings were concerned neither the Supreme Court nor the Federal Court was a more appropriate court. Therefore, in order to determine which court was the more appropriate court to hear this proceeding it was necessary to look at the following matters: the issues in the proceeding; what was likely to be the evidence of each party in relation to each issue; and, where the balance of convenience lay. Such an analysis, it was said, reveals that the balance of convenience is in favour of the Federal Court. The defendant submitted that it follows that the Federal Court is the more appropriate court to hear this proceeding in the interests of justice.
| [21] | the various betting accounts that the defendant had with the plaintiff |
Mr Sullivan said that the following issues arose in this proceeding: (1) were jurisdiction in matters such as those raised in this proceeding; (2) did the defendant recommence betting with the plaintiff in October 2005; (3) is the defendant entitled to set-off the amounts claimed by him in the Federal Court proceeding against his indebtedness to the plaintiff; (4) did the plaintiff forgive the defendant’s debt; and, (5) were the parties’ respective claims against each other compromised. As to the defendant’s set-off, the two principal issues are: (1) did the plaintiff engage in unconscionable conduct by using its superior bargaining power to take advantage of the defendant’s special disability – his compulsive gambling; and (2) did the plaintiff negligently breach the duty of care that the plaintiff owed to the defendant.
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[23] Finally, Mr Sullivan submitted that the connection of this proceeding with the Northern Territory is tenuous.
The plaintiff’s submissions
| [24] | to the Federal Court on a number of grounds. First, the plaintiff sought to |
The plaintiff opposed the defendant’s application to transfer this proceeding Court before filing his defence in this proceeding, and the fact that the defendant was maintaining inconsistent defences in this proceeding amounted to an abuse of process. Thirdly, Mr North said that there is a preponderance of connecting factors in this proceeding with the Northern Territory. The plaintiff will be calling a number of witnesses who reside in the Northern Territory and virtually all of the relevant documents are in the Northern Territory as there are regulatory requirements in the Northern Territory which necessitate the retention of such documents.
| [25] | properly responsive to the statement of claim filed in this proceeding (in |
The substantive issues in this proceeding
As there are significant parts of the defendant’s defence that are not reply to the defence in this proceeding or a defence to the proceeding in the Federal Court, it is difficult to completely and precisely identify all of the issues in this proceeding. The application to transfer this proceeding to the Federal Court is further complicated by the fact that no evidence has been tendered about the nature, duration or extent of the defendant’s alleged gambling problem. There are still matters in this proceeding which may need to be further investigated by the parties. As a result, it is difficult to form a view about the full extent of the evidence which may be relevant in this regard. Nonetheless, I have taken the following matters into consideration.
[26] The following facts are admitted by the defendant in his defence:
• The plaintiff is an incorporation that is capable of suing and being sued. • The plaintiff is licensed under the Racing and Betting Act (NT) bookmaking.
•
The plaintiff’s place of business and betting facilities are located in Darwin.
•
The plaintiff’s business is governed by the Racing and Betting Act (NT).
•
On or about 30 April 2004, the plaintiff opened betting account No 96589 for the defendant under the defendant’s name.
•
The plaintiff would receive and negotiate bets placed by the defendant via the telephone and the defendant would open an account with the plaintiff.
•
Up until March 2005, the defendant utilised the telephone betting facilities of the plaintiff to place his bets.
•
The defendant was sometimes informed orally of the balance of his betting accounts by the plaintiff’s telephone operator when he telephoned the plaintiff’s betting number.
•
The defendant was sometimes informed orally of the balance of his betting accounts by Mr John McDonald when he telephoned his mobile telephone number for the purpose of placing a bet or discussing the balance of his betting accounts.
•
The defendant made payments to the plaintiff using: direct cash; cheque deposits; and a telephone payment facility called “BPAY”.
•
As at 4 July 2007, the defendant owed a debt to the plaintiff in the sum of $2,242,144.
•
On 1 October 2005, the defendant resumed betting with the plaintiff. The defendant’s bets were processed through betting account No. 96589.
•
In about May 2006, the plaintiff opened and operated a betting account No. 117610 under the name of the defendant.
•
In about July 2006, the plaintiff opened and operated a betting account No. 124536 under the name of the defendant.
•
From about October 2005 to about July 2007, the defendant utilised the telephone betting facilities of the plaintiff to place bets.
•
From about October 2005 to July 2007, the defendant was sometimes informed orally of the balance of his betting account by the plaintiff’s telephone operator when he telephoned the plaintiff’s betting number.
•
From about October 2005 to April 2006, the defendant was sometimes informed orally of the balance of his betting account by Mr John McDonald when he telephoned Mr McDonald for the purpose of placing bets or discussing the balance of his betting account.
•
From about April 2006 to July 2007, the defendant was sometimes informed orally of the balance of his betting account by Mr Matthew Tripp when he telephoned Mr Tripp for the purpose of placing bets or discussing the balance of his betting account.
•
From October 2005 to about July 2007, the defendant made payments to the plaintiff using: a telephone payment facility called “BPAY”; direct cash; or cheque deposits.
•
As at 17 June 2007, the defendant owed the plaintiff a further debt of $1,627,702.
•
As at 17 June 2007, the defendant owed the plaintiff a total debt of $3, 867,846.
| [27] | statement of claim or the 2006 Agreement pleaded in the statement of claim. |
The defendant does not admit either the 2004 Agreement pleaded in the par 5 of the defence the defendant denies that in performance of the 2004 Agreement betting account No. 96589 was opened, credit was extended to the plaintiff and the defendant placed bets with the plaintiff. In par 10 of the defence there is a similar denial in relation to the 2006 Agreement.
The following issues potentially arise for determination by the Court in this proceeding:
1. Did the plaintiff and the defendant enter into the 2004 Agreement pleaded in par 3 of the statement of claim?
2. What were the terms of the 2004 Agreement?
3. Were the various matters alleged in par 5 of the statement of claim undertaken in performance of the 2004 Agreement?
4. Did the plaintiff and the defendant enter into the 2006 Agreement pleaded in par 8 of the statement of claim?
5. What were the terms of the 2006 Agreement?
6. Were the various matters alleged in par 10 of the statement of claim undertaken in performance of the 2006 Agreement?
7. Did the plaintiff forgive the defendant the debt of $3,867,846?
8. Did the plaintiff and the defendant reach a settlement or compromise of the claims that they allege against each other?
9. Is the defendant entitled to set-off against his indebtedness to the plaintiff, the amounts claimed by him in the proceeding in the Federal Court?
10. Did the defendant lose substantial sums of money to the plaintiff between 2 September 2002 and March 2005?
11. Prior to March 2005, did the plaintiff adopt and implement a Responsible Gambling Code of Conduct? If so, what were the terms or provisions of the Code and how was the Code implemented and administered?
12. On 15 March 2005, was the defendant voluntarily excluded from placing a bet with the plaintiff? If so, what did that mean? What was the effect of such exclusion?
13. What was the meaning and effect of the letter dated 15 March 2005?
14. On 15 March 2005, was the defendant’s betting account with the plaintiff closed?
15. Did the defendant have knowledge of each of the betting accounts that he held with the plaintiff?
16. What was the meaning and effect of the plaintiff’s letter dated 24 March 2005?
17. On or about 17 June 2005, did the plaintiff accept payment of the sum of $70,000 and release the defendant from all liability for the defendant’s indebtedness to the plaintiff as at that date?
18. How extensive was the defendant’s gambling with the plaintiff between 1 October 2005 and July 2007? What were the defendant’s losses during this period? What were the defendant’s winnings during this period?
19. Did the applicant suffer from a special disadvantage?
20. Was the defendant a “problem gambler”? What is a problem gambler? Could the defendant exercise self control over his gambling?
21. Was the plaintiff aware of the defendant’s “condition”?
22. How much credit did the plaintiff extend to the defendant between 1 October 2005 and July 2007 and in what circumstances was the credit extended to the defendant?
23. Was the plaintiff in a superior bargaining position to that of the defendant?
24. Did the plaintiff use its superior bargaining position to take advantage of the defendant’s “special disability”?
25. Did the plaintiff engage in unconscionable conduct?
26. Did the plaintiff owe the defendant a duty of care?
27. Did the plaintiff negligently breach its duty of care to the defendant?
28. Did the plaintiff’s negligence cause the defendant damage?
So far as the application to transfer these proceedings to the Federal Court is concerned, a further potentially relevant issue is wether the following terms were included in both the 2004 Agreement and the 2006 Agreement pleaded in the statement of claim filed in this proceeding: (1) all bets are considered to be placed and received in the Northern Territory of Australia; and (2) the Membership and Betting Rules shall be governed by and construed in accordance with the laws of the Northern Territory and the
defendant irrevocably submits to the exclusive jurisdiction of the Northern
Territory Courts [emphasis added] in respect of any dispute or matter
arising from or out of the Membership and Betting Rules. Such jurisdiction
clauses may be a relevant factor in considering whether a proceeding should
be transferred under the cross vesting legislation: Huddart Parker v Ship
Mill Hill[16]; West's Process Engineering Pty Ltd (Administrator Appointed) vWestralian Sands Ltd[17]; Rick Manietta Pty Ltd v National Mutual Life
Association of Australia Ltd[18]; World Firefighters[19] and Bond Brewing Holdings v National Australia Bank[20]. However, despite the defendant’s mere non admissions, the plaintiff has not, as yet, led sufficient evidence to establish either the 2004 Agreement or the 2006 Agreement pleaded in the statement of claim or the terms of those agreements. Consequently, I have not given this factor any real weight in coming to my decision in this application.
| [30] | pleadings, noted that further enquiries and investigations may still need to |
Having considered the pleadings, noted the incomplete state of the in par [28] above:
Issue 1: John McDonald (Melbourne); the defendant (Sydney);
Richard Molinari (unknown); a witness who is able to give
direct evidence as to whether the plaintiff’s Membership and
Betting Rules were published on the plaintiff’s website on
30 April 2004; a witness through whom the relevant
Membership and Betting Rules may be tendered; a witness
who is able to give evidence about the procedures undertaken
in order to open betting account No. 96589 on the plaintiff’s
computer; a witness who can establish that the relevant
betting statements were sent to the defendant by the plaintiff
its servants and agents; a witness who is able to give evidence
about the custom and usage of a sports bookmaker in the
Northern Territory; various employees of the plaintiff who
can give evidence about dealings with the defendant or
Richard Molinari in relation to betting account No. 63255;
and, a person through whom the recordings of all relevant
telephone conversations may be tendered;.Issue 2: The same witnesses as for issue 1 above; presumably, if the
relevant documents are proven, the documents that are said to
contain the terms of the 2004 Agreement will largely speak
for themselves.Issue 3: John McDonald; the defendant; staff of the plaintiff who had
dealings with the plaintiff over the relevant period who can
give evidence about any instructions they were given, the
procedures that they followed when dealing with the
defendant, their dealings with the defendant, the opening and
operation of Betting Account No. 1, and the extension of
credit to the defendant; a person through whom the recordings
of all relevant telephone conversations maybe tendered; and,
a witness who can establish that the relevant settling account
statements were sent to the defendant by the plaintiff, its
servants and agents.Issue 4: Matthew Tripp (Melbourne); the defendant; a witness who is
able to give direct evidence as to whether the plaintiff’s
Membership and Betting Rules were published on the
plaintiff’s website on 14 July 2006; a witness through whom
the relevant Membership and Betting Rules may be tendered;
a witness who is able to give about the procedures undertaken
in order to open of betting accounts No. 117610 and 124536
on the plaintiff’s computer; a witness who can establish that
the relevant settling account statements were sent to the
defendant by the plaintiff, its servants and agents; a witness
who is able to give evidence about the custom and usage of a
sports bookmaker in the Northern Territory; and, various
employees of the plaintiff who can give evidence about
dealings with the defendant in relation to betting accounts
63225, 117610 and 124536; a person through whom the
recordings of all relevant telephone conversations maybe
tendered.Issue 5:
The same witnesses as for issue 4; presumably, if the relevant documents are proven, the documents that are said to contain the terms of the 2006 Agreement will largely speak for
themselves. Issue 6:
Matthew Tripp; the defendant; staff of the plaintiff who had dealings with the plaintiff over the relevant period who can give evidence about any instructions they were given, the
procedures that they followed when dealing with the
defendant, their dealings with the defendant, the opening and
operation of Betting Account No 2, and the extension of
credit to the defendant; a person through whom the recordings
of all relevant telephone conversations may be tendered; and,
a witness who can establish that the relevant settling account
statements were sent to the defendant by the plaintiff, its
servants and agents.Issue 7: Matthew Tripp; Mr Tripp Snr (Melbourne); and the
defendant.Issue 8: Grant Griffiths (Victoria); Matthew Tripp; possibly other
members of the Board of the plaintiff; any relevant minutes of
meetings or resolutions of the Board of the plaintiff; Ron
Finlay (Sydney); and, the defendant.Issue 9: As to issues 9 to 28 referred to in par [28] above –
John McDonald; Matthew Tripp; Toni Griffin (Darwin), who
is said to have a discussion with Mr Finlay about the seven
day closure period in March 2005; Malcolm Richardson;
various staff employed by the plaintiff who had dealings with
the defendant during the second betting period; staff through
whom the recordings of the various relevant telephone
conversations may be tendered; staff of the plaintiff who can
prove the terms of the plaintiff’s Responsible Gaming Code
of Conduct and give evidence about the operation of the Code
of Conduct; possibly and still to be determined, employees of
other sports betting organisations in the Northern Territory
who can give evidence about the defendant’s betting patterns,
if any, with those organisations and whether the defendant
voluntarily excluded himself from those organisations;
possibly evidence from other sports betting organisations in
the Northern Territory about the betting patterns of other
large punters; an expert psychologist or psychiatrist, the
defendant, Ron Finlay and Professor Alexander Blaszcynski
(Sydney).
As to issue number 28 which is referred to in par [28] above, the plaintiff says that it will argue that the defendant’s gambling with the plaintiff did not cause him any loss or damage because, had the defendant not gambled with the plaintiff, it is likely that he would have gambled with other sports bookmakers: Calvert v William Hill Credit Ltd[21]. As a result, it will be
necessary for the defendant to call other sports bookmakers in the Northern Territory to give evidence about the defendant’s gambling patterns. In par 15 (iii) of the defence filed in this proceeding, there is a suggestion that the
defendant may have placed bets with other sports bookmakers. The
suggestion arises because what is pleaded as consideration for the plaintiff’s
forgiveness of the defendant’s debt is that, if the defendant resumed betting,
he would bet exclusively with the plaintiff. However, at this stage of the
proceeding it is unclear whether the defendant did, in fact, bet with any
other sports bookmakers. No evidence has been tendered about this to date.
It is a matter which still needs to be investigated.
It is likely that the plaintiff will call at least four witnesses from Melbourne or elsewhere in Victoria, two and possibly more witnesses from Darwin and an expert witness who resides somewhere in Australia to give evidence at
the hearing of this proceeding. It is likely that the defendant will call at
least three witnesses who live in Sydney to give evidence at the hearing of
this proceeding.Consideration
In my opinion, the preponderance of connecting factors is in favour of this proceeding being heard by this Court. This Court is the more appropriate court to hear this proceeding and it is in the interests of justice that it does so. The plaintiff carries on its business in the Northern Territory. That business relevantly involves staff who took the various telephone calls made by the defendant and who dealt with the defendant, staff who managed the recordings of the various telephone calls made by the defendant and staff who supplied the defendant with various betting statements. The licensing and operation of the business is governed by the laws of the Northern Territory. The conduct alleged to have constituted the tort and the unconscionable conduct which are relied on to establish the defendant’s set- off against the plaintiff is all likely to have occurred in the Northern Territory.
I accept Mr North SC’s submissions that, in addition to John McDonald, Matthew Tripp, Mr Tripp Snr, Grant Griffith, Malcolm Richardson and Toni Griffin, the plaintiff is likely to call a number of other witnesses to give evidence at the hearing of this proceeding and at least some of those witnesses are likely to be residents of the Northern Territory. I have referred to the likely category of those witnesses in par [29] above. Those witnesses may include various staff employed by the plaintiff, staff employed by other sports betting organisations and staff employed by the Racing and Gaming Authority of the Northern Territory.
| [35] | witnesses that he will need to call in support of his case. For example, I do |
In my opinion, it is likely that the defendant has underestimated the implemented a Responsible Gambling Code of Conduct, the content of the Code and the purpose and effect of the Code. It may well be that the defendant will need to call someone from the Racing and Gaming Authority or some other person from the Northern Territory to prove these matters.
If the proceedings were to be held in Sydney, it would still be necessary for a minimum of four witnesses to travel to Sydney from Melbourne and for a minimum of two witnesses to travel to Sydney from Darwin. It would also be necessary for counsel from Melbourne and Adelaide to travel to Sydney and for solicitors to travel to Sydney from Melbourne. Most of the people I
have mentioned would also need to be accommodated in Sydney. If the
Federal Court travelled between Sydney and Melbourne to accommodate
witnesses, then at least the Federal Court Judge and his associate and six
legal representatives of the parties would have to travel backwards and
forwards between Sydney and Melbourne. Regardless of whether the
hearing of this proceeding is to be held in Sydney or Darwin, there are
going to be cost consequences that arise from the fact that the key witnesses
live in different cities. In my opinion, the most appropriate way for these
issues to be managed is by this Court making appropriate directions.
Directions can be given by this Court which can accommodate the fact that
both witnesses and legal practitioners reside in different jurisdictions,
including - counsel may be given leave to appear at interlocutory hearings
either by telephone or by way of video conferencing; the evidence in chief
of each witness is to be in the form of witness statements or affidavits;
copies can be made of documents that have been provided to expert
witnesses and consistently collated bundles of the documents can be
provided to legal representatives and the Court; likewise with any additional
documents that may be relevant for cross examination of the expert
witnesses, this can be done in such a way that privilege of the documents is
maintained until cross examination commences; expert witnesses may give
their evidence by way of video conferencing; all relevant documents can be
scanned and copied by appropriate electronic means; and bundles of
uncontroversial documents which are to be tendered can also be prepared in
a form that is convenient to all parties.
While a number of the witnesses reside interstate, it is not said that they would be seriously inconvenienced if they were required to travel to Darwin or that they cannot afford to travel to Darwin. The evidence of Mr Finlay is likely to be of short duration and it should not be necessary for the defendant’s expert witness to travel to Darwin. The plaintiff’s position is that there is no difficulty with any of the plaintiff’s witnesses travelling to Darwin.
I have not given a lot of weight to the fact that the parties have chosen legal practitioners who reside interstate to represent them. Both parties appear to have the means to do so. There are any number of legal firms and legal
| practitioners in the Northern Territory who have the capacity to conduct this proceeding. The Australian legal profession is now a national legal profession and legal practitioners who accept retainers in relation to interstate work must expect to travel. | |
| [39] | this proceeding and the proceeding in the Federal Court constitute an abuse |
I do not accept the plaintiff’s submission that the defendant’s conduct of alternative: Issitch v Worrell[22]; Delfino v Trevis (No 1)[23]; Re Morgan[24]. Similarly, the rule against departure in pleadings has no application to pleadings in separate proceedings: Northern Territory Housing Commission v Territory Bricks Pty Ltd[25]. That being said, and subject to the defendant tendering the necessary further evidence, my preliminary view is that the defendant will have considerable difficulty in establishing the defences of forgiveness of debt or settlement of the parties claims.
Orders
The application to transfer this proceeding to the Federal Court under s 5(1) of the Jurisdiction of Courts (Cross Vesting) Act (NT) is dismissed. I will hear the parties further as to costs.
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[1] [2000] NTSC 3 per Mildren J at pars [13] and [14].
[2] (Unreported, Supreme Court of Victoria, Hansen J, 15 December 1995) at pars [7] to [9].
4 (1991) 109 FLR 177 at 182 – 3.
5 (1989) 97 FLR 112 at 114.
[6] (1988) 14 NSWLR 711.
[7] (2004) 221 CLR 400.
[8] (1995) 103 NTR 25 at 31 to 32.
[9] (1995) 4 NTLR 195 at 211.
[10] [2000] NTSC 3 per Mildren J at par [10].
[11] [1987] AC 460.
[12] (1988) 14 NSWLR 711 per Rogers JA at 728.
3 (1993) 17 Fam LR 327 at 335.
[13] [1987] AC 460.
[14] (2000) 50 NSWLR 357 per Mason P at par [87]. 15 (1988) 14 NSWLR 711 per Rogers A-JA at 730.
[16] (1950) 81 CLR 502.
[17] (Unreported, Supreme Court of New South Wales, Rolfe J, 6 August 1997) at pars [12] & [13].
[18] (Unreported, Supreme Court of Victoria, McDonald J, 8 September 1995).
[19] [2001] QSC 164.
[20] (1990) 1 ACSR 616
[21] [2008] EWHC 454 (Cth).
[22] (2000) 172 ALR 586 at par [32].
[23] [1963] NSWR 11191 at 196.
[24] (1887) 35 Ch D 492.
[25] (1983) 71 FLR 273.
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