Zantran Pty Limited v Crown Resorts Limited (No 3)
[2021] FCA 659
•16 June 2021
FEDERAL COURT OF AUSTRALIA
Zantran Pty Limited v Crown Resorts Limited (No 3) [2021] FCA 659
File number: VID 1317 of 2017 Judgment of: MURPHY J Date of judgment: 16 June 2021 Catchwords: PRACTICE AND PROCEDURE – application for discovery of transcripts of examinations and a statement obtained by gambling regulator – where transcripts of examinations and statement comprise “protected information” under s 10.1.29 of the Gambling Regulation Act 2003 (Vic) (GR Act) – prohibition on disclosure of protected information to a third party under s 10.1.34(1) of the GR Act – whether exception to prohibition on disclosure in s 10.1.34(2)(c) of the GR Act is limited to protected information that has been given in evidence or produced before a court by a regulated person Legislation: Australian Securities and Investments Commission Act 2001 (Cth)
Competition and Consumer Act 2010 (Cth)
Corporations Act 2001 (Cth)
Casino Control Act 1991 (Vic) ss 24, 26(1)(c), 57
Casino Control Act 1992 (NSW) s 143
Gambling Regulation Act 2003 (Vic) ss 1.3, 3.8A.24, 10.1.29, 10.1.30, 10.1.31, 10.1.32, 10.1.34
Royal Commissions Act 1923 (NSW) s 11
Taxation Administration Act 1997 (Vic)
Cases cited: Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619
Project Blue Sky Incv Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 49 Date of last submissions: 27 April 2021 Date of hearing: 15 April 2021 Counsel for the Applicant: Ms R Doyle SC and Ms K Burke Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: Mr N D Hopkins QC and Mr H Whitwell Solicitor for the Respondent: Minter Ellison Lawyers ORDERS
VID 1317 of 2017 BETWEEN: ZANTRAN PTY LIMITED (ACN 078 669 155)
Applicant
AND: CROWN RESORTS LIMITED (ACN 125 709 953)
Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
4 MAY 2021
THE COURT ORDERS THAT:
1.By 4.00pm on 11 May 2021, the Respondent produce to the Applicant by way of discovery copies of the following documents in its possession, power or control:
(a)transcripts of interviews conducted by the Victorian Commission for Gambling and Liquor Regulation (VCGLR) of Michael Chen, Jane Pan, Jason O’Connor, Rowen Craigie, and Barry Felstead; and
(b)the written statement of Mr JX;
produced before the Independent Liquor and Gaming Authority of NSW Inquiry in relation to the Respondent.
2.Until further order:
(a)the identity of individuals who were involved in the creation of the above documents be kept confidential and not be disclosed to any person other than the parties and the Court; and
(b)the affidavit of John Fogarty, the solicitor for the VCGLR, made 27 April 2021 and the written submissions of the VCGLR dated 27 April 2021 be treated as confidential documents on the Court file and not be disclosed to any person other than the parties and the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
VID 1317 of 2017 BETWEEN: ZANTRAN PTY LIMITED (ACN 078 669 155)
Applicant
AND: CROWN RESORTS LIMITED (ACN 125 709 953)
Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
16 JUNE 2021
THE COURT ORDERS THAT:
1.Order 2 of the orders made 4 May 2020 is varied such that, to the extent that information contained in the affidavit of John Fogarty affirmed 27 April 2021 and the submissions of the Victorian Commission for Gambling and Liquor Regulation dated 27 April 2021 is set out in the reasons for judgment, confidentiality no longer applies to the information disclosed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
In this application the applicant, Zantran Pty Ltd (Zantran), sought interlocutory orders for the respondent, Crown Resorts Limited (Crown), to discover transcripts of examinations conducted, and a statement obtained by, the Victorian Commission for Gambling and Liquor Regulation (VCGLR) of six current or former employees of the Crown group, copies of which had been provided to Crown and produced before the NSW Independent Liquor and Gaming Authority Inquiry (ILGA) in relation to Crown.
The substantive proceeding is a shareholder class action brought by Zantran against Crown alleging breach of the continuous disclosure regime in the Corporations Act 2001 (Cth) (Corporations Act) and misleading or deceptive conduct in contravention of the Corporations Act, the Australian Securities and Investments Commission Act 2001 (Cth) and the Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth). Broadly, the proceeding is based in allegations that employees of a Crown subsidiary working in the People’s Republic of China engaged in promotional activities directed at recruiting Chinese VIP gamblers to gamble at Crown’s casinos in Melbourne and Perth, which promotional activities were in breach of the Criminal Law of the People’s Republic of China. It is alleged that between 6 February 2015 and 16 October 2016 Crown was aware of the risk posed to the substantial revenue Crown obtained through Chinese VIP gamblers through a crackdown by Chinese authorities on such promotional activities, which risk it failed to disclose to the ASX. That risk is alleged to have been realised when, between 13 and 24 October 2016, 18 or 19 employees of a Crown subsidiary who engaged in gambling promotion on behalf of Crown were arrested and detained by Chinese authorities. Following an announcement by Crown on 17 October 2016 that 18 Crown staff had been detained by Chinese authorities, the Crown share price fell by approximately 13.9%. Ultimately 19 such employees were charged, pleaded guilty and convicted in the Shanghai Baoshan District Court in China.
Crown raised an issue as to whether, if Crown discovered the examination transcripts and statement of JX to Zantran, it would be in contravention of s 10.1.34(1) of the Gambling Regulation Act 2003 (Vic) (the GRAct). It is uncontentious that the provision would operate to prohibit Crown from disclosing “protected information” (such as the examination transcripts and the statement) to another person, including Zantran, unless one of the exceptions in s 10.1.34(2) apply.
On 4 May 2021, I made orders to require Crown to produce to Zantran by way of discovery copies of the following documents in its possession, power or control:
(a)transcripts of interviews conducted by the VCGLR of Michael Chen, Jane Pan, Jason O’Connor, Rowen Craigie, and Barry Felstead; and
(b)the written statement of JX (a pseudonym) (the statement of JX).
I now provide my reasons for doing so.
THE EVIDENCE
Zantran filed the following materials:
(a)the affidavit of Michael Donelly, a senior associate in the employ of Maurice Blackburn, the solicitors for Zantran, affirmed 14 April 2021; and
(b)written submissions dated 21 April 2021.
Crown did not file any evidence, but filed written submissions dated 14 April 2021 and a note dated 28 April 2021.
By orders made on 15 April 2021, Crown was directed to give notice of the application to the VCGLR, and the VCGLR was given leave to file and serve any evidence and submissions upon which it wished to rely and to appear on 4 May 2021. The VCGLR filed the following materials:
(a)the affidavit of John Fogarty, a partner in the firm of DLA Piper, the solicitors for the VCGLR, affirmed 27 April 2021 (the Fogarty affidavit); and
(b)written submissions dated 27 April 2021.
Neither Mr Donelly nor Mr Fogarty were required for cross examination. Zantran and Crown made oral submissions at a case management hearing on 15 April 2021, and the application was otherwise determined on the papers.
VARIATION TO CONFIDENTIALITY ORDER
The 4 May 2021 orders provided that the Fogarty affidavit and VCGLR submissions be treated as confidential documents and not be disclosed to any person other than the parties and the Court. But to explain my reasons for judgment I considered it necessary to refer to parts of those documents. Accordingly, only to the extent that the contents of those documents are set out in these reasons, it is appropriate to vary the order so that confidentiality no longer applies. In that context I note that VCGLR’s primary concern appeared to be to protect the identity of persons involved in the creation of the examination transcripts and the statement of JX, and nothing I have said intrudes on maintenance of that confidentiality.
THE FACTUAL BACKGROUND
The VCGLR Investigation
The background facts are largely drawn from the Fogarty affidavit and the VCGLR’s submissions, which neither party contested.
On 10 July 2017, Crown Melbourne Limited, which is a wholly-owned subsidiary of Crown, notified the VCGLR pursuant to s 57 of the Casino Control Act 1991 (Vic) (CC Act) that 19 employees (17 current and two former employees) of the Crown group had been convicted by the Shanghai Baoshan District Court of contraventions of Article 303, Clause 1 and Article 25, Clause 1 of the Criminal Law of the People’s Republic of China.
Following that notification, in February and March 2018, the VCGLR issued statutory notices to five current or former employees of the Crown group, Messrs Michael Chen, Jason O’Connor, Rowen Craigie, Barry Felstead and Ms Dan Jane Pan, requiring them to attend for compulsory examinations pursuant to s 26(1)(c) of the CC Act. The stated purpose of the examinations was to seek information in relation to the circumstances surrounding the arrest of Crown employees in China as part of an ongoing investigation by the VCGLR under s 24 of the CC Act. Compulsory examinations of the five examinees were conducted by the VCGLR between February and May 2018 and transcripts of those examinations (examination transcripts) were produced. In February 2018, JX provided the statement to the VCGLR in relation to the same ongoing investigation. For convenience, I will call the six persons who either attended for examination or provided a statement the “examinees”.
In the period between March and May 2018 copies of the examination transcripts were sent by the VCGLR to Crown, and on 23 August 2018 a copy of the statement of JX was sent to Crown.
In the period after the examination transcripts and statement of JX were provided to Crown, the ILGA established an inquiry into Crown under s 143 of the Casino Control Act 1992 (NSW) (the NSW CC Act) into whether Crown or its agents, affiliates or subsidiaries remained a suitable person to hold a restricted gaming licence at Barangaroo in Sydney for the purposes of the NSW Act (the NSW Casino Inquiry). By instruments of appointment dated 14 August 2019 and 23 June 2020, former Supreme Court of New South Wales Chief Judge in Equity, the Hon Patricia Bergin SC, was appointed a Commissioner of Inquiry pursuant to s 143 of the NSW CC Act. Commissioner Bergin was given the powers, authorities, protections and immunities conferred on a royal commissioner by Div 1 of Part 2 of the Royal Commissions Act 1923 (NSW) (RC Act). Section 11 of the RC Act provided power for the Commissioner to issue a summons requiring the attendance of a witness or the production of documents.
By letter dated 22 November 2019, Minter Ellison, the solicitors for Crown, wrote to the VCGLR, informing it that Crown had been served by the NSW Casino Inquiry with a summons requiring the production of “[a]ll transcripts or recordings of interviews between any officer or employee of Crown and the VCGLR conducted in the period 1 July 2017 to 30 June 2018” by 4.00pm on 2 December 2019. The letter said that Crown had in its possession the examination transcripts of five of the six examinees, which Crown considered to be responsive to the summons it had received. The stated purpose of the letter was “to extend to the VCGLR the courtesy of an opportunity to consider whether it has any issue with Crown producing these transcripts to the [NSW Casino Inquiry].”
By email on 2 December 2019, Norton Rose Fulbright, the solicitors assisting the NSW Casino Inquiry, wrote to the VCGLR confirming that the summons referred to above had been served on Crown. The email stated, amongst other things:
I understand a concern has been raised by Crown Resorts Limited regarding disclosure of that material to the extent it is held by them and received from VCGLR.
Can VCGLR provide written consent to Crown Resorts Limited to disclose to the Inquiry the documents referred to above in response to the Summons.
Alternatively, by this email, the Inquiry established by the [ILGA] requests that it be provided with the documents referred to above.
By letter dated 3 December 2019, the Chair of the VCGLR wrote to Norton Rose Fulbright, and provided copies of the examination transcripts and the statement of JX. The letter noted that the information in the examinations transcripts and statement of JX is “protected information” as defined in s 10.1.29 of the GR Act, and said that the VCGLR was disclosing the information in accordance with s 10.1.32(1)(c) of that Act. That subsection authorises a regulated person, which includes the VCGLR, to disclose protected information to a gambling regulator for regulatory or law enforcement purposes.
By letter dated 24 July 2020, Commissioner Bergin wrote to the VCGLR asking whether it objected to the deployment of the statement of JX in the NSW Casino Inquiry, such deployment being subject to ascertaining the position of JX in relation to its use, and that JX not be publicly identified. The VCGLR responded by letter dated 28 July 2020 stating:
The VCGLR provided the statement of [JX] to the [NSW Casino Inquiry] established by ILGA on 3 December 2019 in accordance with section 10.1.32(1) of the Gambling Regulation Act 2003 (GR Act). I consider that ILGA (including the [NSW Casino Inquiry] established by it) would be considered a gambling regulator under the GR Act: see s 10.1.29 of the GR Act.
Section 10.1.34(1) [of the GR Act] does not apply to a record or disclosure made by a gambling regulator in the performance of functions of that regulator. Accordingly, I consider this as a matter for you to determine, so long as you are satisfied it is occurring in the performance of regulatory functions. I also note you intend to seek [JX’s] consent.
(Emphasis in original).
On 28 July 2020, Commissioner Bergin wrote to the VCGLR asking whether it objected to the deployment of the examination transcripts in the NSW Casino Inquiry. The VCGLR responded by letter dated 29 July 2020 in similar terms to its response of 28 July 2020 in relation to the statement of JX.
It is common ground between the parties that the examination transcripts and statement of JX were subsequently tendered to the NSW Casino Inquiry by counsel assisting the NSW Casino Inquiry.
THE LEGISLATIVE FRAMEWORK
Div 6 of Part 1 of Chapter 10 of the GR Act sets out a confidentiality regime in respect of “protected information”.
Section 10.1.29(1) in that Division provides various relevant definitions:
(a)“protected information” is defined to mean “information, other than pre-commitment information within the meaning of section 3.8A.24, that is -
(i)information with respect to the affairs of any person; or
(ii)information with respect to the establishment or development of a casino”;
(b)“gambling regulator” is defined to mean “a person or body in Victoria or another jurisdiction (whether in or outside Australia) that is responsible for the licensing, supervision or regulation of gambling activities”;
(c)“regulated person” is defined to include “the Commission [the VCGLR] or a person who is or was-
(i)a commissioner;
(ii)an employee or member of staff referred to in section 29(1) of the Victorian Commission for Gambling and Liquor Regulation Act 2011…” and
(d)“court” is defined to include “any tribunal, authority or person having power to require the production of documents or the answering of questions”.
Section 1.3 of the GR Act defines “person” as including “a body (whether or not incorporated)…”
Section 10.1.30 of the GR Act imposes a duty of confidentiality on the VCGLR in relation to protected information. Relevantly, it provides:
General 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.
Penalty: 60 penalty units.
(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
(iii)the Victorian Commission for Gambling and Liquor Regulation Act 2011; or
(b)a record or disclosure permitted or required to be made by or under another provision of this Division; or…
Section 10.1.31 of the Act prohibits the VCGLR from disclosing protected information in legal proceedings, except in specified circumstances. It provides:
Disclosure 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 allows the VCGLR to disclose protected information in specified circumstances. It relevantly provides:
Other permitted disclosures
(1) A regulated person may disclose protected information—
(a)with the consent (express or implied) of the person to whose affairs the information relates; or
(b) to an enforcement agency for the purpose of law enforcement; or
(c)to a gambling regulator for regulatory or law enforcement purposes; or…
(2)In addition to any disclosure permitted under subsection (1), the Minister or the [VCGLR] may disclose protected information (except to a court) if the Minister or the [VCGLR] (as the case requires) considers that—
(a) disclosure of the information is in the public interest; or
(b)in the circumstances, disclosure of the information is not unreasonable.
(3)The Minister or the [VCGLR] may authorise the disclosure of protected information, or protected information of a specified class, if the Minister or the [VCGLR] (as the case requires) considers that—
(a)disclosure of the information, or information of the class, is in the public interest; or
(b)in the circumstances, disclosure of the information, or information of the class, is not unreasonable.
(4)An authorisation under subsection (3) may be expressed to apply to a specified regulated person, to regulated persons of a specified class or to all regulated persons.
(4A)An authorisation cannot be given under subsection (3) to disclose protected information to a court.
Note
The disclosure of protected information to a court is dealt with in section 10.1.31.
Section 10.1.34 makes disclosure of protected information an offence, subject to three exceptions, it says:
Third party disclosures
(1)A person (other than a regulated person) to whom protected information is disclosed by a regulated person must not make a record of, or disclose to someone else, any of the information.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply to—
(a)a record or disclosure made with the prior written authorisation of the [VCGLR] or the Minister; or
(b)a record or disclosure made by an enforcement agency or a gambling regulator in the performance of functions of the agency or regulator (as the case requires); or
(c)protected information that has been given in evidence or produced before a court.
CROWN’S SUBMISSIONS
Crown submitted that if the Court regarded the examination transcripts and statement of JX as relevant in the proceeding, it had no inherent objection to an order for discovery and production of them. However, in its view, s 10.1.34 of the GR Act gave rise to a potential difficulty in making such an order.
Crown’s submissions were made in the context that it is common ground between the parties that:
(a)the VCGLR and/or its relevant officers are “regulated persons” under the definition in s 10.29.1(1) of the GR Act;
(b)Crown is “a person” within the meaning of s 10.1.34(1) of the Act;
(c)Crown is not a “regulated person” under the definition in s 10.29.1(1);
(d)the examination transcripts and statement of JX comprise “protected information” with respect to the affairs of Crown;
(e)thus, Crown is “a person” to whom “protected information” (the examination transcripts and statement of JX) have been disclosed by “a regulated person” (the VCGLR);
(f)the NSW Casino Inquiry is a “court” within the meaning of s 10.1.34(2)(c);
(g)thus, “protected information” (the examination transcripts and statement of JX) were produced before a “court”; and
(h)unless s 10.1.34(2) of the GR Act operates so that s 10.1.34(1) does not apply, Crown is prohibited from disclosing the information in the examination transcripts and statement of JX to Zantran.
Crown contended that there is a question as to the proper construction of s 10.1.34(2)(c), and that there are two possible interpretations of the subsection:
(a)first, that it should be construed as referring to protected information that has been given in evidence or produced before a court by anyone (which Crown characterised as the “broader construction”); and
(b)second, that it should be construed as referring to protected information that has been given in evidence or produced before a court by a regulated person (which Crown characterised as the “narrower construction”).
It said that if the narrower construction is correct then s 10.1.34(2)(c) has not operated in the present case and Crown is bound by the prohibition on disclosure in s 10.1.34(1) because no regulated person has disclosed the protected information to a court. It said, and I accept, that Zantran bears the onus of persuading the Court that it is appropriate to order discovery of the protected information.
Crown accepted that the absence of any qualifying words at the end of s 10.1.34(2)(c) operates in favour of the broader construction. On the other hand, it submitted that the High Court has said that generally expressed statutory provisions, unqualified when read in isolation, are susceptible to being confined by considerations of context and purpose, and to ignore those considerations in favour of the broadest possible reading is “calculated to lead to error”, citing Independent Commission Against Corruption v Cunneen[2015] HCA 14; (2015) 256 CLR 1 at [59] (French CJ, Hayne, Kiefel (as her Honour then was) and Nettle JJ).
It submitted that a relevant contextual consideration in relation to s 10.1.34(2)(c) is that the only disclosure of protected information to a court which is contemplated by Division 6 of Part 1 of Chapter 10 (being the division in which s 10.1.34 appears) is disclosure to a court by a regulated person. It said that such disclosure is provided for in the specific circumstances set out in s 10.1.31(2). It cited the decision of the Victorian Court of Appeal in State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358 at [53]-[69] (Beach, Kyrou JJA and Cavanough AJA) for the proposition that s 10.1.31 “covers the field” when it comes to disclosure of protected information in a court context, in the sense that it exclusively governs disclosure in that context. It argued that the fact that the only disclosure to a court contemplated by Division 6 is disclosure to a court by a regulated person may be said to tend in favour of reading s 10.1.34(2)(c) as being limited to such disclosure.
Crown also contended that the narrower construction may be said to better promote the purpose of Division 6, that purpose being the protection of the confidentiality of protected information. It said that, on the broader construction, once any third party has disclosed protected information to a court, notwithstanding that a regulated person has not yet done so, any other third party is thereafter completely at liberty to disclose the protected information. It said that the confidentiality purpose of Division 6 may be said to be better achieved if s 10.1.34(2) is construed as engaged only where a regulated person has disclosed the protected information to a court in the tightly controlled circumstances set out in s 10.1.31(2).
Crown said that if the narrower construction is correct, then it is prohibited from discovering the examination transcripts and statement of JX to Zantran.
CONSIDERATION
It is appropriate to infer that the contents of the examination transcripts and statement of JX concern, or at least include, the examinees’ knowledge in relation to Crown’s activities in China in promoting gambling by Chinese VIP gamblers in its casinos in Melbourne and Perth; in relation to any crackdown on such activities by Chinese authorities; and for some of the examinees in relation to the knowledge of Crown senior management in relation to any crackdown. Thus, in my view, the documents are likely to be relevant to a fact in issue in the proceeding and discoverable by Crown unless it is prohibited from doing so by s 10.1.34(1) of the GR Act.
Section 10.1.34(2)(c) is an exception to the prohibition on disclosure of protected information by a person other than the regulated person found in s 10.1.34(1). It provides, in terms, that the prohibition in subs (1) does not apply to “protected information that has been given in evidence or produced before a court.” I am satisfied that the appropriate construction of s 10.1.34(2)(c) is the broader construction for which Zantran contended, and that it is appropriate to make the discovery orders Zantran sought.
First, and most importantly, the narrower construction of s 10.1.34(2)(c) for which Crown contended is that the exception applies only to protected information that has been given in evidence or produced before a court by a regulated person. Those emphasised words do not however appear in the provision, and the task of statutory construction must always begin with the text itself: Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at [16] (Gummow A-CJ and Kirby J) and [99] (Crennan J). The absence of any qualifying words at the end of s 10.1.34(2)(c) strongly points away from the narrower construction. That points in favour of the broader construction as it gives effect to the plain words of the statute: Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 at [39] (French CJ); Project Blue Sky Incv Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ). In my view, had Parliament intended s 10.1.34(2)(c) to apply only to protected information which was given in evidence or produced before a court by a regulated person then it would have included those words in the subsection.
Second, Crown relied on the principle of statutory construction that a broadly expressed statutory provision, which is unqualified when read in isolation, should nevertheless not be understood by excluding contextual indications which imply a more narrowed and focused meaning, citing Cunneen at [59]. That may be readily accepted but I am not persuaded that the contextual indications in the GR Act favour the narrower construction of s 10.1.34(2)(c).
Division 6 of Part 1 of the Act contains numerous provisions that prescribe and proscribe the powers of regulated persons, including s 10.1.31 which specifically prescribes the circumstances in which a regulated person (but not any other person) can produce documents to a court. Then, the terms of the exception in s 10.1.34(2)(c) do not restrict the exception to the prohibition on disclosure only to protected information that has been given in evidence or produced before a court by a regulated person. In summary, s 10.1.30 imposes a general duty of confidentiality on a regulated person in relation to protected information; s 10.1.31 concerns disclosure of protected information by a regulated person in legal proceedings; and s 10.1.32 concerns other permitted disclosures of protected information by a regulated person. The only provision in Division 6 that concerns disclosure of protected information by a non-regulated person is s 10.1.34 which prohibits disclosure by a non-regulated person to a third party unless the disclosure falls within one of the exceptions in subs (2). Having regard to Division 6 as a whole, had Parliament intended the exception in s 10.1.34(2)(c) to be restricted to protected information given in evidence or produced by a regulated person in my view it would have said so.
Relatedly, I do not accept Crown’s contention that the narrower construction better promotes the purpose of Division 6, being the maintenance of the confidentiality of protected information. As Zantran submitted, Division 6 is centrally concerned with ensuring that regulated persons maintain the confidentiality of protected information. The general duty of confidentiality in s 10.1.30 is a duty imposed upon regulated persons, and not upon all persons who may lawfully come into possession of protected information. To that end Division 6 controls the purposes for which protected information can be disclosed by a regulated person, while at the same time recognising that disclosure in certain circumstances may be necessary.
Division 6 contemplates that a regulated person (the VCGLR) may share protected information with a number of agencies and persons within and outside Victoria. For example:
(a)s 10.1.32(1)(b) provides that a regulated person can disclose protected information to an enforcement agency for the purposes of law-enforcement;
(b)s 10.1.32(1)(c) provides that a regulated person may disclose protected information to a gambling regulator for regulatory or law enforcement purposes; and
(c)s 10.1.32(1)(ca) provides that a regulated person can disclose protected information to an authorised officer within the meaning of the Taxation Administration Act 1997 (Vic) for the purposes of administering that legislation.
There is little or nothing in the Division to suggest that Victoria Police or a police force in another state, a gambling regulator in another state, or a taxation officer, once in receipt of protected information lawfully disclosed by the VCGLR, would be prohibited from tendering that information to a court in criminal law enforcement proceedings, gambling regulatory enforcement proceedings or for the purpose of tax administration. If the narrower construction for which Crown contends were correct, then the words “for law enforcement purposes” in s 10.1.32(1)(b) and (c) (and the equivalent in s 10.1.32(1)(ca) of the Act, would have to be interpreted to include the words “other than for use in court proceedings, unless tendered by a regulated person.” That would be artificial and unnecessary for the proper operation of those provisions.
It would have the result that despite protected information having been lawfully disclosed by the VCGLR either to:
(a)the Victoria Police or another enforcement agency for law enforcement purposes;
(b)the ILGA or another gambling regulator for regulatory or law enforcement purposes; or
(c)an authorised taxation officer for the purposes of administering the relevant taxation legislation;
the only way in which that information could then be relied upon in court would be for the VCGLR to appear in that proceeding to tender that material, and that before doing so the VCGLR would be either required to obtain the consent of the person under investigation or the relevant Minister would have to certify that it was necessary in the public interest: s 10.1.31(2)(a) and (b).
Such a result would be at odds with the plain words of ss 10.1.32(1)(b), (c) and (ca) which do not contain words of limitation. It would ignore, at least in the context of s 10.1.32(1)(b) and (c), that the legislature should be taken to have intended by the words “for the purpose of law enforcement” and “for regulatory or law enforcement purposes” to allow rather than to restrict the use of the protected information in court proceedings by an enforcement agency or a gambling regulator. That intention can be seen in the text of ss 10.1.32(1)(b) and (c), and is supported by the second reading speech of the Gambling Regulation (Further Miscellaneous Amendments) Bill 2006 which introduced those provisions: Victoria, Parliamentary Debates, Legislative Assembly, 31 May 2006, pp 1457-8 (Mr Pandazopoulos, Minister for Gaming). Relevantly, the Minister said:
…there are also a number of amendments that ensure that this confidentiality regime operates in a less cumbersome way. The bill provides the commission with the discretion to release protected information to enforcement agencies and other regulators where it considers such a release appropriate. These measures strike a balance between preserving the confidentiality of the information, and facilitating an exchange of information that is unfettered by administrative processes, for the purposes of ongoing regulation and law enforcement.
Third, in support of the narrower construction, Crown relied on the decision in Intralot, but its submissions made too much of that case. In Intralot the Victorian Court of Appeal considered whether the State of Victoria, which the Court took to be a regulated person for the purposes of the GR Act, was prevented from producing documents to a court by operation of ss 10.1.30 or 10.1.31 of the Act. The Court held that s 10.1.31 “covers the field” in relation to disclosure of protected information to a court to the exclusion of s 10.1.30. However it only did so in respect of disclosure “by a regulated person”, as they were the facts of the case and that is the scope of those provisions. Intralot did not consider s 10.1.34(2)(c), or any situation in which a person other than a regulated person is lawfully in possession of protected information and makes a lawful disclosure to a third party pursuant to the exceptions in 10.1.34(2). Intralot did not touch the question of the construction of s 10.1.34(2)(c) which the Court is now required to consider.
The examination transcripts and statement of JX having been produced in a court, on the proper construction of s 10.1.34(2)(c), Crown is not prohibited by s 10.1.34(1) from discovering those documents to Zantran. For those reasons, I made orders on 4 May 2021 to require that the examination transcripts and statement of JX be produced by Crown to Zantran by way of discovery.
Further, while it is unnecessary to decide and it was not the subject of argument, on the facts of the present case there is another basis upon which it appears likely that the prohibition in s 10.1.34(1) of the GR Act does not apply.
Section 10.1.34(2)(b) of the GR Act provides that s 10.1.34(1) does not apply to a disclosure made by “a gambling regulator in the performance of functions of the…regulator”. The facts are, as shown by the VCGLR correspondence annexed to the Fogarty affidavit, that:
(a)under cover of a letter dated 3 December 2019 the VCGLR (a regulated person) provided the examination transcripts and statement of JX to the solicitors assisting the NSW Casino Inquiry, which was established by the ILGA. The VCGLR made that disclosure pursuant to s 10.1.32(1)(c) which permits it to disclose protected information “to a gambling regulator for regulatory or law enforcement purposes”; and
(b)in its letters dated 28 and 29 July 2020 to Commissioner Bergin, the VCGLR said:
(i)that the ILGA, including the NSW Casino Inquiry established by it, would be considered a “gambling regulator” within the definition in s 10.1.29. I agree; and
(ii)that the prohibition on disclosure in s 10.1.34(1) does not apply to a disclosure made by a gambling regulator in the performance of functions of that regulator: 10.1.34(2)(b). I agree. The VCGLR said that it was a matter for Commissioner Bergin to be satisfied that any disclosure occurred in the performance of such regulatory functions.
In my view it would be appropriate to infer that Commissioner Bergin was satisfied that the production of the examination transcripts and statement of JX by counsel assisting the NSW Casino Inquiry was a disclosure to a court by a gambling regulator in the performance of its regulatory functions. On that basis the exception in s 10.1.34(2)(b) would operate, and the prohibition in s 10.1.34(1) would not apply. It is though unnecessary to decide whether s 10.1.34(2)(b) applies on the facts of the present case given my view that the exception in s 10.1.34(2)(c) applies.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 16 June 2021
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