Sportsbet Pty Ltd v State of New South Wales (No 10)

[2010] FCA 54

FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Ltd v State of New South Wales (No 10) [2010] FCA 54

Citation:		Sportsbet Pty Ltd v State of New South Wales (No 10) [2010] FCA 54
Parties:		SPORTSBET PTY LTD v STATE OF NEW SOUTH WALES, RACING NEW SOUTH WALES and HARNESS RACING NEW SOUTH WALES
File number(s):		NSD 1821 of 2008
Judges:		PERRAM J
Date of judgment:		5 February 2010
Catchwords:		PRACTICE AND PROCEDURE – Subpoena – Relevance
Legislation:
Cases cited:		Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31
Date of hearing:	5 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Mr D M J Bennett QC with Mr T North SC, Mr A Tokley, Mr A Paterson and Mr P Nugent
Solicitor for the Applicant:	Fitzpatrick Legal
Counsel for the First Respondent:	Mr S B Lloyd SC with Ms A Mitchelmore
Solicitor for the First Respondent:	New South Wales Crown Solicitor's Office
Counsel for the Second and Third Respondents:	Mr J T Gleeson SC with Mr S A Kerr SC, Mr J S Emmett and Mr S Robertson
Solicitor for the Second and Third Respondents:	Yeldham Price O'Brien Lusk

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1821 of 2008

BETWEEN:

SPORTSBET PTY LTD
Applicant

AND:

STATE OF NEW SOUTH WALES
First Respondent

RACING NEW SOUTH WALES
Second Respondent

HARNESS RACING NEW SOUTH WALES
Third Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	5 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The subpoena issued to the Proper Officer of Racing Victoria Limited dated 18 January 2010 be set aside.

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 1821 of 2008

BETWEEN:

SPORTSBET PTY LTD
Applicant

AND:

STATE OF NEW SOUTH WALES
First Respondent

RACING NEW SOUTH WALES
Second Respondent

HARNESS RACING NEW SOUTH WALES
Third Respondent

JUDGE:	PERRAM J
DATE:	5 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 18 January 2010 the second and third respondents obtained from this Court the issue of a subpoena addressed to the Proper Officer of Racing Victoria Limited.  That subpoena sought the production of a number of documents set out in the schedule thereto:

   The documents and things you must produce are as follows:

   1.copies of all Documents recording communications between the Applicant (Sportsbet) or IASbet and any other person in respect of the cancellation or variation of the RVL 09/10 Sportsbet Approval or the RVL 09/10 IASbet Approval; and

   2.copies of all Documents created by RVL in respect of the cancellation or variation of the RVL 09/10 Sportsbet Approval or the RVL IASbet 09/10 Approval.

2. This morning, Sportsbet has moved to set aside that subpoena.  It does so on two bases.  First, it contends that the paragraphs of the subpoena are the same as those in a notice to produce which I set aside a few days ago in Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31. The second basis is that the materials which are sought in the subpoena are not relevant.

3. The second and third respondents sought to justify the relevance of the subpoena on the basis of paragraph 11 of an affidavit of Mr Tyshing dated 23 September 2009 to be read in the proceedings.    Paragraph 11 of that affidavit is as follows:

   Sportsbet has held approval since November 2005 from Racing Victoria Limited pursuant to the provisions of the Gambling Regulation Act 2003 to publish and use racefields. Sportsbet’s current approval is for the period 1 August 2009 to 31 July 2010. A product fee is required to be paid. The payment amount required is 10% of revenue derived from betting on Victorian Thoroughbred Races (exclusive of GST) for the approval period and an additional 5% of revenue derived from betting on Victorian Thoroughbred Races (exclusive of GST) for the months of October 2009 and November 2009 where revenue is greater than nil for these months. Contained in Annexure “C” is a copy of Sportsbet’s current approval granted by Racing Victoria Limited.

4. The documents sought by the subpoena were said to be relevant on two bases.  First, it was said that Mr Tyshing had put in issue that there was an approval and they were entitled to test that; that issue, therefore, is whether there was an approval.  The second issue was said to be what the effect of the approval was and that was said to have been put in issue by paragraph 11 of Mr Tyshing’s affidavit as well.

5. I was informed from the bar table, and I accept, that there is no part of the pleadings which touches either upon whether there is an approval of the kind referred to in paragraph 11 of Mr Tyshing’s affidavit or what the effect of that approval is. In those circumstances, I can see no issue in the proceeding to which the matters sought in the subpoena are relevant and therefore I set it aside.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:        5 February 2010