State of Victoria v Sportsbet Pty Ltd (No 2)

In the matter of State of Victoria versus Sportsbet Pty Ltd, the appellants sought to appeal against the orders made by the Federal Court in relation to the conduct of online gambling activities. The primary issues before the court were the allocation of costs between the parties, particularly given the appellants' partial success on appeal and the joinder of a party after the initial proceedings had begun. The Victorian Commission for Gambling and Liquor Regulation was substituted as the Fourth Respondent, and the court was required to determine whether the joinder of this party warranted an adjustment in the costs awarded prior to the joinder.

The court examined the principles governing the allocation of costs in appeals where the appellants do not succeed on all issues. It considered the circumstances under which costs may be apportioned, particularly when the issues raised were not unreasonable and when there was no undue overlap in the appellants' submissions. The court also assessed whether the joinder of a party after the commencement of litigation could result in costs being awarded for actions taken prior to the formal joinder, in line with the Federal Court Rules.

The court concluded that the appellants were not unreasonable in raising the issues that formed the basis of the appeal, and there was no significant overlap in the arguments presented by the two appellants, who had distinct interests. The joinder of the Victorian Commission for Gambling and Liquor Regulation was deemed necessary for the non-party to conduct itself as though it would be joined, and thus the costs incurred prior to the formal joinder were fairly and reasonably incurred in the conduct of the litigation. Consequently, the appeal was allowed, and the costs were apportioned as per the orders detailed.

The court ordered that the Victorian Commission for Gambling and Liquor Regulation replace the Fourth Respondent. The appeal was allowed, and the First and Second Respondents were directed to pay the costs of the Appellants and the Third Respondent. Additionally, the orders made by Justice Gordon on 9 September 2011 were modified, with specific paragraphs set aside and replaced. The Amended Application filed on 1 March 2011 was dismissed, and the Applicants were ordered to pay additional costs to the Third Respondent and the First and Second Respondents.