FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Limited v Harness Racing Victoria [2009] FCA 1471

SPORTSBET PTY LIMITED v HARNESS RACING VICTORIA

NTD 9 of 2009

MANSFIELD J

10 DECEMBER 2009

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 9 of 2009

BETWEEN:

SPORTSBET PTY LIMITED

Applicant

AND:

HARNESS RACING VICTORIA

Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	10 DECEMBER 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. As to the references to s 2.5.16A of the Gambling Regulation Act 2003 (Vic) in the Application the words “s 2.5.16A and its replacement” in paragraphs 3 and 4 be struck out.

2. As to the references to s 2.5.16A of the Gambling Regulation Act 2003 (Vic) in the Statement of Claim:

2.1 The words “section 2.5.16A, and its later replacement” in paragraph 29 be struck out;

2.2 The words “2.5.16A and later section” in paragraph 29.1 be struck out;

2.3 The words “their face discriminate” in paragraph 29.1 be struck out and replaced with the words “its face discriminates”;

2.4 The words “2.5.16A, and later section” in paragraph 29.2 be struck out;

2.5 The words “s 2.5.16A, and later” in paragraph 30 be struck out;

2.6 The words “2.5.16A, and later s” in paragraph 31 be struck out;

2.7 The word “deny” in paragraph 31 be struck out and replaced with the word “denies”;

2.8 The words “sections 2.5.16A and” in paragraph 32 be struck out and replaced with the word “section”;

2.9 The words “sections 2.5.16A, and its replacement” in paragraph 33 be struck out;

2.10 The words “2.5.16A and s” in paragraph 34 be struck out;

2.11 The words “are” and “their” in paragraph 34 be struck out and replaced with the words “is” and “its” respectively;

2.12 The words “s 2.5.16A and/or” in paragraph 35 be struck out; and

2.13 The words “are”, “they” and “purport” in paragraph 35 be struck out and replaced with the words “is”, “it” and “purports” respectively.

3. Paragraphs 5 and 6 of the Application be struck out.

4. As to the references to “the Dispute” in the Statement of Claim:

4.1 the words “(the Dispute)” in paragraph 15.2 be struck out; and

4.2 the words “in the Dispute” in paragraph 28 be struck out.

5. There be liberty to apply.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 9 of 2009

BETWEEN:

SPORTSBET PTY LIMITED

Applicant

AND:

HARNESS RACING VICTORIA

Respondent

JUDGE:	MANSFIELD J
DATE:	10 DECEMBER 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an application by the respondent pursuant to O 11 r 16 of the Federal Court Rules and under the Court’s inherent jurisdiction to strike out certain paragraphs of the Application and of the Statement of Claim. Alternatively, the respondent seeks particulars of certain paragraphs of the Statement of Claim pursuant to O 12 r 5.

2 According to the Statement of Claim, the applicant holds a licence pursuant to s 90 of the Racing and Betting Act 1983 (NT) to conduct the business of a sports bookmaker on its Darwin premises. The respondent is a statutory body established under s 39(1) of the Racing Act 1958 (Vic), and is the “appropriate controlling body” with respect to Victorian harness racing for the purposes of the Gambling Regulation Act 2003 (Vic) (the GR Act). In order to conduct its business as a sports bookmaker, the applicant needs, as a matter of practicality, and for example with respect to harness racing, to know which horses are running and in which races. That information is contained in “race fields”. It is an offence contrary to s 2.5.19B of the GR Act to publish or use race fields without permission or approval from an appropriate controlling body (such as the respondent).

3 These proceedings concern the grant of approval by the respondent to the applicant for the applicant to publish “race fields” for Victorian harness racing. The applicant alleges that certain of the provisions of the GR Act are constitutionally invalid and contravene s 92 of the Constitution, and also alleges a breach of contract by the respondent.

Legislation

4 It is convenient to first set out the relevant provisions of the GR Act. Section 1.3 defines “race field” as meaning:

any information that identifies, or is capable of identifying, the names or numbers of the horses or greyhounds –

(a) nominated for, or which will otherwise take part in, an intended horse race, harness race or greyhound race to be conducted in Victoria; or

(b) that have been scratched or withdrawn from an intended horse race, harness race or greyhound race to be conducted in Victoria.

“Wagering operator” is defined in s 1.3 as meaning “the company (if any) appointed under section 4.3.15(1)(a) as operator of the wagering licence”. That provision empowers the licensee to appoint a subsidiary company of itself as a wagering operator.

5 Chapter 2 of the GR Act deals with the “General Prohibition on Gambling”. Division 5A of Chapter 2 is headed “Regulation of publication and use of race fields”. Section 2.5.19A is the definition section for Division 5A, and defines relevant terms as follows:

appropriate controlling body means –

(a) in the case of horse racing, Racing Victoria;

(b) in the case of harness racing, Harness Racing Victoria;

publication and use approval means an approval granted under section 2.5.19D;

wagering service provider means –

(a) a person who operates a totalisator in Victoria or elsewhere;

(b) a person who operates a betting exchange in Victoria or elsewhere;

(c) a person who, in Victoria or elsewhere, carries on the business of, or acts as, a bookmaker or turf commission agent; …

The Statement of Claim indicates that the applicant is a wagering service provider.

6 Section 2.5.19B is headed “Restrictions on publication and use of race fields”. This is the operative restriction section, and it provides:

(1) A wagering service provider must not, in Victoria or elsewhere, publish, use or otherwise make available, a race field in the course of business unless –

(a) the wagering service provider has obtained the publication and use approval of the appropriate controlling body; and

(b) the wagering service provider complies with the conditions (if any) to which the approval is subject.

Penalty: 60 penalty units

(2) Subsection (1) does not apply to –

(a) the licensee within the meaning of Chapter 4; or

(b) the wagering operator; or

(d) a publication that is approved under section 2.5.19.

It is pleaded (and not apparently in dispute) that licensed bookmakers in Victoria and TABcorp Holdings Ltd (the Victorian TAB) are not subject to s 2.5.19B(1) by reason of s 2.5.19B(2).

7 The GR Act provides that a wagering service provider may apply to the appropriate controlling body (in the case of Victorian harness racing, the respondent), for the approval necessary, in effect, to be able to use race fields without contravening the prohibition in s 2.5.19B. Section 2.5.19C provides for such application:

(1) A wagering service provider may apply to an appropriate controlling body for publication and use approval.

(2) An application for approval must –

(a) be made in the prescribed time; and

(b) be in the prescribed form; and

8 The GR Act also provides that the appropriate controlling body, upon receipt of an application made under s 2.5.19C is to consider the application. Section 2.5.19D is headed “Publication and use approval” and provides:

(1) An appropriate controlling body may grant an approval to a wagering service provider to publish, use or otherwise make available in the course of business, in Victoria or elsewhere, a race field if the wagering service provider makes an application for that approval in accordance with section 2.5.19C.

(2) For the purposes of determining an application for publication and use approval, an appropriate controlling body –

(a) must consider the prescribed matters (if any);

(b) may consider any other matters the appropriate controlling body considers to be relevant.

(3) An appropriate controlling body must –

(a) determine an application by either granting or refusing publication and use approval in the prescribed time; and

(b) notify the applicant in writing of its decision to grant or refuse publication and use approval in the prescribed time.

(4) Publication and use approval may be granted subject to any conditions the appropriate controlling body thinks fit, including a condition that the wagering service provider pay a fee or a series of fees of an amount or amounts and in the manner specified in the approval.

(5) Any fee that is payable as a condition of the approval is a debt due to the appropriate controlling body that granted the approval and may be recovered in any court of competent jurisdiction.

(6) Publication and use approval –

(a) takes effect on the day specified by the appropriate controlling body in the approval; and

(b) remains in force for the period specified by the appropriate controlling body in the approval, unless revoked earlier under subsection (7).

(7) At any time the appropriate controlling body, by written notice to the wagering service provider, may –

(a) vary the publication and use approval (including a variation of the conditions to which the approval is subject); or

(b) revoke the publication and use approval for any reasonable cause stated by the appropriate controlling body in the notice of revocation.

So, the appropriate controlling body (in this case the respondent), upon receipt of an application made under s 2.15.19C (in this case made by the applicant), must consider any prescribed matters, may consider any other matters it considers to be relevant, and is explicitly empowered to grant approval subject to any conditions thought fit, including a condition for the payment of a fee or a series of fees. Such approval remains in force for the period specified, unless revoked (for any reasonable cause) or varied.

9 On 4 September 2008, the GR Act was amended by the Gambling Legislation Amendment (Problem Gambling and Other Measures) Act 2007 (Vic). That amending Act provided for the insertion of Part 5 of Chapter 2 of the GR Act, and the repeal of its predecessor, s 2.5.16A. Section 2.5.16A was, in effect, a more condensed version of the current Division 5A of Chapter 2 of the GR Act. Section 2.5.16A was headed “Restrictions on publication of race fields” and provided:

(1) A wagering service provider must not, in Victoria or elsewhere, publish or otherwise make available a race field in the course of business without the approval of the appropriate controlling body.

Penalty: 60 penalty units.

(2) Sub-section (1) does not apply to –

(a) the licensee within the meaning of Chapter 4; or

(b) the wagering operator; or

(d) a publication that is approved under section 2.5.19.

10 Section 2.5.16A(3) set out the relevant definitions for that section. It is to be noted that s 2.5.16A provided that a wagering service provider must not “publish or otherwise make available”, whereas the current s 2.5.19B further prohibits the “use” of a race field. Another significant distinction is that in the former s 2.5.16A there is no express provision for the appropriate controlling body to grant an approval subject to conditions, including the conditions as to payment of fees.

11 The amendment to the GR Act is said by the respondent to be significant because it means there is no “matter” to be determined in respect of the period during which approval was granted under the former s 2.5.16A, so references to that former section in the Application and the Statement of Claim should be struck out.

The applicant’s approval under the GR Act

12 The applicant pleads that since 30 November 2005, the respondent granted, or purported to grant to the applicant, approval to publish race fields in respect of harness racing, pursuant to s 2.5.16A of the GR Act. The applicant says that it was then granted approval pursuant to s 2.5.19B of the GR Act, which took effect from 1 October 2008, in respect of Victorian harness racing race fields, and subsequently granted further approval on or about 19 December 2008 for the period 1 January 2009 to 30 June 2009 (that is, a date beyond the date of the Application in this Court).

13 On or about 11 March 2009, it is said that the respondent revoked the applicant’s approval to publish or use Victorian harness racing race fields.

The Application and Statement of Claim

14 The applicant’s claim involves two separate causes of action. The first is a narrow contract claim (a claim that the respondent failed to give three months’ notice of its intention to revoke its approval). It claims that the respondent was contractually required to provide such notice by an agreement made in compromising a previous proceeding. There is no attack upon the pleading of that agreement, although the respondent says as a matter of law that it is not enforceable by the relief which is claimed. The second is a claim that the current s 2.5.19B of the GR Act (and the repealed s 2.5.16A) are invalid by virtue of the Northern Territory (Self-Government) Act 1978 (Cth) and s 109 of the Constitution.

15 In its Application, the applicant seeks a declaration that the respondent has breached its contractual agreement with the applicant by revoking its licence. The respondent makes no complaint about that declaration sought. The applicant also seeks a declaration that the purported revocation made on or about 11 March 2009 of the applicant’s approval is invalid. The respondent says that the Court could not and would not grant such relief, on the basis that the cause of action does not support such relief. The respondent says that a breach of a contractual obligation as to notice could not invalidate the revocation as a matter of law, such revocation occurring under the statute.

16 As to the second claim, the applicant seeks a declaration that s 2.5.16A and its replacement s 2.5.19B of the GR Act are invalid to the extent that they apply to a person, including the applicant, who accepts offers to bet by telephone or internet communication between the Darwin premises of the applicant and a place in Victoria. Further or alternatively, the applicant seeks a declaration that s 2.5.16A and its replacement s 2.5.19B of the GR Act are invalid to the extent that they would apply to the conduct of the applicant in publishing or otherwise making available a harness racing race field, either by way of telephone or internet communication, or for the purpose of receiving or accepting offers to bet between the Darwin premises of the applicant and a place in Victoria.

17 Additionally, or alternatively, the applicant seeks an order that the respondent grant approval to the applicant pursuant to s 2.5.19B of the GR Act. Again, the respondent says that the cause of action pleaded could never support such relief. And finally, the applicant seeks an order that the respondent return any moneys paid to it by the applicant. The respondent says that no moneys are alleged in the Statement of Claim to have been paid, so that claim should be dismissed.

18 It is convenient to set out the relevant parts of the Statement of Claim and then deal with the respondent’s complaints.

19 The Statement of Claim identifies the parties. It notes that the respondent at all material times after 30 November 2005, was and is the appropriate controlling body for the purposes of the former s 2.5.16A, and for the purposes of the current s 2.5.19B with respect to Victorian harness racing. The applicant is and was licensed pursuant to s 90 of the Racing and Betting Act 1983 (NT), or its predecessor, to conduct the business of a sports bookmaker on its Darwin premises under the regulatory supervision of the Northern Territory Racing Commission, and conducted its business in Darwin, subject to its license. The applicant says that as part of its sports bookmaking business, it offered and offers both telephone and online betting or wagering from its Darwin premises to persons located throughout Australia. The applicant says that its services involved the taking or acceptance of bets or wagers on, amongst others, harness racing events in Victoria and elsewhere throughout Australia. The applicant says that the provision of its services was done in trade and commerce or as part of trade and commerce between the Northern Territory and the States, including Victoria.

20 The Statement of Claim identifies the applicant’s competitors as including licensed bookmakers in Victoria offering services the same as, or similar to, those offered by the applicant, namely, the provision of telephone or online wagering services. The applicant also identifies the Victorian TAB as the holder of a licence enabling it to conduct or offer telephone or online wagering services in Victoria and elsewhere.

21 The applicant pleads the approval (or purported approval) granted by the respondent since 30 November 2005 to publish race fields in respect of Victorian harness racing, pursuant to s 2.5.16A. The applicant also pleads that it has not paid an economic contribution fee to the respondent in relation to such approval (that is, the applicant has not paid a fee or money to the respondent in relation to the approval under the repealed s 2.5.16A).

22 The Statement of Claim then refers to earlier proceedings in this Court (NTD 16/2007) in which the applicant claimed that s 2.5.16A was invalid, and an agreement entered into between the applicant and the respondent to resolve those proceedings. It is pleaded that an express term of that agreement was that the permission granted to the applicant to publish Victorian harness racing race fields would continue pursuant to any amended provisions of the GR Act, and that the respondent would inform the applicant in writing three months in advance of any decision by the respondent that may imperil the applicant’s permission. That pleaded term is the basis for the contractual case upon which the applicant relies. It is alleged that in breach of that term, the applicant did not receive notice in writing of any decision by the respondent that may imperil the applicant’s permission under the GR Act, but on 11 March 2009, the respondent simply revoked its approval.

23 Apparently associated with that claim is a “Dispute” as defined in paragraph 15.2 of the Statement of Claim. That paragraph refers to an allegation about the applicant’s requests for documents from the respondent. It alleges that since the commencement of s 2.5.16A, the applicant has

requested from [the respondent] all creditable, relevant and significant documentation received by [the respondent] or considered by [the respondent] relevant to the decision to grant race field approvals and to seek to impose an economic contribution as a condition of approval. To date [the respondent] has not provided such documentation (the Dispute).

24 As to the constitutional invalidity case, the applicant pleads in the Statement of Claim as follows:

29. At all material times, section 2.5.16A, and its later replacement section 2.5.19B, of the [GR] Act were, and are, invalid by reason of the matters set out in this paragraph and paragraphs 30 to 35 below:

29.1 Section 2.5.16A and later section 2.5.19B on their face discriminate between in-State and out-of-State licensed bookmakers, including Sportsbet;

29.2 Further or alternatively, the practical effect of section 2.5.16A, and later section 2.5.19B, of the [GR] Act is to discriminate between in-State and out-of-State licensed bookmakers, including Sportsbet.

30. The practical effect of s 2.5.16A, and later s 2.5.19B, of the [GR] Act is to preclude, with respect to telephone and internet wagering emanating from within Victoria and the supply of such wagering services from inside and outside of Victoria, competition between Sportsbet and licensed bookmakers in Victoria.

31. Section 2.5.16A, and later s 2.5.19B, of the [GR] Act deny to [the applicant] (and others) access, for the purposes of its Australia wide operations, to information respecting race fields that is not denied to licensed bookmakers in Victoria.

32. The burden or disadvantage imposed by sections 2.5.16A and 2.5.19B of the [GR] Act on trade, commerce and intercourse between the Northern Territory and Victoria is not:

32.1 reasonably appropriate or adapted to any legislative object which is consistent with s 49 of the Northern Territory (Self-Government) Act 1978 (Cth); or

32.2 reasonably necessary for any legislative object which is consistent with s 49 of the Northern Territory (Self-Government) Act 1978 (Cth).

33. In particular, without limiting the generality of the preceding paragraphs, the only object, alternatively the dominant object, alternatively a substantive object, of sections 2.5.16A, and its replacement s 2.5.19B of the [GR] Act, is to protect the turnover and income of licensed bookmakers (wagering operators) in Victoria from being diminished through competition from licensed bookmakers (wagering operators) including Sportsbet in the Northern Territory, which object is not consistent with s 49 of the Northern Territory (Self-Government) Act 1978 (Cth).

Particulars

Second Reading Speech, 26 May 2005, Racing and Gambling Acts (Amendment) Bill 2005 (Vic).

34. Section 2.5.16A and s 2.5.19B of the [GR] Act are a discriminatory burden on interstate trade and commerce of a protectionist kind and are invalid by virtue [of] their inconsistency with s 49 of the Northern Territory (Self- Government) Act 1978 ( Cth) and s 109 of the Constitution.

35. Further or alternatively, s 2.5.16A and/or s 2.5.19B of the [GR] Act are invalid insofar as they purport to have extra-territorial operation; in that they purport to make conduct occurring wholly outside and unconnected with the State of Victoria the basis for the imposition of criminal liability.

The respondent’s strike out application and request for particulars

25 The respondent has applied to have various paragraphs of the Statement of Claim and the Application struck out, or in the alternative, has applied for particulars of certain paragraphs of the Statement of Claim.

26 The first issue taken by the respondent is in respect of the repealed section, s 2.5.16A of the GR Act. The respondent says there is no “matter” within the meaning of s 77 of the Constitution, and therefore there is no jurisdiction in relation to that point. The respondent says that because there is no justiciable controversy under s 2.5.16A and no dispute to determine, that the references to that section in paragraphs 29 to 35 (inclusive) of the Statement of Claim and in paragraphs 3 and 4 of the Application should be struck out.

27 The second issue is in respect of paragraphs 2, 5 and 6 of the Application, which the respondent says are not supported by the causes of action pleaded in the Statement of Claim and such relief could not therefore be granted.

28 The third issue relates to the use of the term “the Dispute” in paragraph 15.2 of the Statement of Claim.

29 The fourth issue relates to the pleading of invalidity of s 2.5.19B of the GR Act. The respondent complains that it is not adequately pleaded and seeks that paragraphs 10 and 29 to 34 inclusive of the Statement of Claim, should be struck out as they are embarrassing. As a fall-back position, the respondent also complains that there are no adequate particulars given for paragraphs 29.2, 30 and 31 of the Statement of Claim, which assert the practical effect of the impugned sections.

30 It is convenient to deal with each of those issues in turn.

Section 2.5.16A of the Gambling Regulation Act 2003 (Vic)

31 The respondent submits that since s 2.5.16A has been repealed and replaced by s 2.5.19B, and since, on the applicant’s case, the applicant has not paid an economic contribution fee in respect of the period in which it had approval to publish Victorian race fields whilst s 2.5.16A was in force, and given that the respondent does not retrospectively seek to impose any fee in respect of that period of the approval, that there is therefore no right, duty or liability of any party under that section. That is, the respondent says there is no live controversy between the parties that turns upon the validity of that former section: East- West Airlines (Operations) Ltd v Commonwealth (1983) 49 ALR 323 at 325 per Dawson J. The respondent further says that there is no prospect of any controversy about any right, duty or liability of any party under that former section, given that the respondent has indicated that it will not pursue the applicant retrospectively for any economic contribution fee in respect of the period during which approval was held under that former section.

32 It is trite to observe that the Court’s jurisdiction is limited by s 77(1) of the Constitution to “matters”. The respondent says that there is no “matter” within the constitutional meaning of that term with respect to the validity of s 2.5.16A of the GR Act.

33 In In Re Judiciary and Navigation Acts (1921) 29 CLR 257, the High Court at 265 stated that “there can be no matter … unless there is some immediate right, duty or liability to be established by the determination of the Court” (per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). The Court must be resolving an actual dispute or controversy between the parties (North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 612; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355-6).

34 In Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55, there was a series of schemes imposed by the Dairy Industry Authority for determining the quantities of milk and quotas to be allocated to persons producing milk. The appellants (dairymen) had been subject to the scheme, in three previous incarnations of the scheme (or “rearrangements”). They brought proceedings challenging the scheme then in force, and the previous schemes which had been superseded. Mason J (with whom Jacobs and Murphy JJ agreed), held that, even if that the previous three versions of the scheme were unauthorised by the relevant Act, the appellants would not be entitled to declaratory relief in respect of those previous versions of the scheme, since they had been superseded and so a breach of that Act did not give the appellants any legal right. Mason J held at 69:

It remains for me only to say that had I been of a different opinion in relation to the first three rearrangements I would not have been disposed to grant declaratory relief to the appellants. The rearrangements were no longer in operation when the appellants commenced their proceedings. They had been superseded by the fourth rearrangement which had been set up under the auspices of amending legislation … It is one thing to say that declaratory relief will be granted against Executive or a statutory authority in relation to existing rights and transactions. It is quite another thing to say that it should be granted in respect of past transactions under legislation which has been repealed or amended when the court’s declaration will produce no foreseeable consequences for the parties.

35 The applicant points to the width of declaratory orders capable of being made under the Federal Court of Australia Act 1976 (Cth). However, that does not address whether there may be foreseeable consequences of a declaration. If not, there is no “matter” for the purposes of the Constitution. So much was said by Gaudron J in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at 613 where her Honour said:

There may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 was such a case. But a declaration cannot be made if it “will produce no foreseeable consequences for the parties”. That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth.

36 In Croome v State of Tasmania (1997) 191 CLR 119, the Tasmanian Criminal Code prohibited sexual intercourse between males and acts of gross indecency committed by a male with another male. The plaintiff commenced proceedings for declarations that the relevant prohibition sections were inconsistent with s 4(1) of the Human Rights (Sexual Conduct) Act 1994 (Cth), and to that extent, were invalid by force of s 109 of the Constitution. The State of Tasmania argued that there was no “matter” invoking the Court’s jurisdiction. It was held by the High Court (per Brennan CJ, Dawson and Toohey JJ) that it is a misconception of the principles of In Re Judiciary and Navigation Acts to suggest that, in proceedings for a declaration of invalidity of a law, no law is administered unless the Executive Government has acted to enforce the impugned law (at 126). Their Honours noted, however, that a justiciable controversy does not arise unless the person who seeks to challenge the validity of the law has a sufficient interest to do so (at 126). Their Honours cited Lord Upjohn in Pharmaceutical Society of Great Britain [1970] AC 403 where it was said at 433:

This principle is not confined to trade. A person whose freedom of action is challenged can always come to the court to have his rights and position clarified, subject always, of course, to the right of the court in exercise of its judicial discretion to refuse relief in the circumstances of the case.

Their Honours said (at 127):

A person with a sufficient interest to raise a justiciable controversy as to the validity of a law is regarded as having or claiming a right to a declaration and that right satisfies the requirement of some “right, duty or liability to be established by the determination of the Court.

Their Honours noted the concession made by the State of Tasmania that the plaintiffs had standing to bring the action for declarations of invalidity of the impugned provisions of the Criminal Code, and said (at 127) that in their view, the concession was rightly made and established that they had sufficient interest to support an action for a declaration that the impugned provisions were invalid by virtue of s 109 of the Constitution.

37 The point of distinction between Croome’s Case and the present one, is that in Croome, the applicant stood susceptible to the operation of the relevant law sought to be impugned at any time, even though that was a future or contingent event. By contrast in the present case, the applicant has not identified any way in which its position might now be adversely (or favourably) affected by determining, and declaring, the validity of the former s 2.5.16A of the GR Act.

38 The Statement of Claim does not assert any such consequence. There is no potential liability under s 2.5.16A, or under the approval given under it. The respondent does not assert any entitlement to any moneys payable under s 2.5.16A, or under the approval given under it. The respondent has made it clear that it will not seek retrospectively to impose a fee for the approval under s 2.5.16A. The applicant did not pay any moneys to the respondent in respect of its approval granted under s 2.5.16A.

39 Consequently, in my view, there is now no right, duty or liability that could be determined by the Court which could usefully be the subject of any relief granted by the Court. Even if the Court were to hold that s 2.5.16A had been invalid, that would not alter any right, duty or liability of either party. There is no remedy that could be imposed or granted by the Court that could have any practical effect between the parties.

40 Accordingly, I propose to strike out the references to s 2.5.16A of the GR Act in paragraphs 29 to 35 inclusive of the Statement of Claim, and the references to that section in paragraphs 3 and 4 of the Application should be struck out. The precise orders are set out below. I do not strike out the references to that former section in paragraphs 14, 15 and 18 of the Statement of Claim, as they assert historical matters about the provision which are relevant in other respects. The respondent did not contend that those references should be struck out.

Whether the relief sought is supported by the causes of actions pleaded

41 The second issue is in respect of paragraphs 2, 5 and 6 of the Application. The respondent says they are not supported by either of the causes of action pleaded in the Statement of Claim and such relief could not therefore be granted.

42 Paragraph 2 of the Application seeks a declaration that the revocation made on or about 11 March 2009 of the applicant’s approval under s 2.5.19B is invalid.

43 Paragraph 2 of the Application cannot be predicated upon s 2.5.19B being invalid. If it is invalid, then the approval itself granted under it could not be valid and effective. If it is valid, there is nothing in the Statement of Claim to assert that the revocation of the approval was invalid, other than the breach of contract claim.

44 The respondent contends that, because the relevant contractual clause pleaded is the requirement to give three month’s notice of any purported revocation, and that such notice was not given, a declaratory order that the revocation is invalid is not an available remedy, because in essence a breach of contract could not constrain the powers of a statutory body. The respondent contends that the public law, and not the law of contract, regulates the exercise of the power to revoke such an approval.

45 I do not propose to strike out paragraph 2 of the Application. The respondent did not go so far as to say that the contract reflecting the compromise of the earlier proceeding was beyond its power, and so itself invalid. That is, it did not say that, by the agreed compromise of the earlier proceeding (as pleaded), it had constrained itself in the manner of exercise of its statutory power in a way which made the agreement unlawful or beyond its power. I start, therefore, from the premise that it was within its power. In that event, the applicant is entitled to the benefit of its contract. If there were to be an anticipatory breach, there is no reason why that conduct could not be restrained and/or appropriate declaratory orders made. If the breach has occurred, there may be a range of remedies potentially available. Of course, damages may be one such remedy. But I do not accept that, in an appropriate case, a declaratory order might be made that the conduct constituting the breach was unlawful and that it is of no effect. The form of such relief is discretionary. I am not prepared to conclude that, when all the relevant conduct is exposed by the evidence (and assuming that the allegations in the Statement of Claim are made out), the Court could not in the exercise of its discretion make the declaratory order sought. See generally Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies,(4^th ed, 2002) at [19-075] and the cases there cited.

46 Paragraph 5 of the Application seeks an order, in the event that s 2.5.19B of the GR Act is valid, that the respondent grant approval to the applicant pursuant to that section. It also necessarily assumes that the breach of contract claim is made out, and that nevertheless the termination of its authority on 11 May 2009 was valid, or at least was not declared to be invalid; there is in fact no claim for damages for breach of contract, but that is a matter for the applicant. In those circumstances, I propose to strike out paragraph 5 of the Application. It cannot be viewed as an order for specific performance of the contract pleaded because it requires the “grant” of a new approval and it is not pleaded that it is a term of the contract that the respondent will grant approval. It cannot otherwise be a means of enforcing the pleaded contract or of giving effect to its terms, because – assuming the matters pleaded are proved – I have accepted that it is arguable that the Court may grant the relief sought in paragraph 2 of the Application. I cannot envisage a circumstance, and none was suggested by senior counsel for the applicant, where the Court would decline to make an order under paragraph 2 but might make an order under paragraph 5 of the Application.

47 Even though the Court has a wide power to make orders under ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth), the orders sought must be referable to a pleaded cause of action. I do not consider that paragraph 5 of the Application is supported by the Statement of Claim as presently pleaded.

48 Paragraph 6 of the Application seeks an order that the respondent return any monies paid to it by the applicant. The applicant pleads in the Statement of Claim that it has paid no monies to the respondent in relation to approval under the GR Act. There is no material fact or facts pleaded, therefore, which could support an order for the repayment of any monies. I therefore propose to strike out paragraph 6 of the Application. If the facts in issue change, this claim for relief may need to be revisited.

The use of the term “the Dispute”

49 The term “the Dispute” appears in paragraphs 15.2 and 28 of the Statement of Claim. The respondent says that any reference to it should be struck out as embarrassing pursuant to O 11 r 16 of the Federal Court Rules, because it provides no foundation for any claim for relief and is unnecessary and irrelevant. Further, the respondent says, it raises an irrelevant allegation, tending only to increase the scope and expense of the proceeding.

50 Order 11 rule 16 of the Federal Court Rules provides:

Where a pleading –

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or

the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.

51 In my view, the description of and use of the term “the Dispute” and the facts alleged in relation to it do not advance the applicant’s claims as pleaded. The provision of the documentation the subject of “the Dispute” is not said to have been a term of the contract when the earlier action was compromised. It was not said to inform the constitutional status of s 2.5.19B of the GR Act. The respondent fairly says that it does not understand why “the Dispute” is pleaded. To respond to it in a defence may require investigation and a pleading, including any alternative version of the pleaded facts. Where that would serve no purpose, as I consider is the case, it can only add to the cost and time spent in preparation for a hearing.

52 Accordingly, I propose to strike out the references to “the Dispute”. The detailed orders are set out below.

The pleading of the constitutional invalidity case

53 The pleading of invalidity of s 2.5.19B of the GR Act is set out above. The respondent says that the case is not adequately pleaded and seeks that paragraphs 10 and 29 to 34 inclusive of the Statement of Claim should be struck out as they are embarrassing. The respondent also complains that there are no particulars given for paragraphs 29.2, 30 and 31 of the Statement of Claim, which assert the practical effect of the impugned sections, so the respondent seeks in the alternative an order for particulars of those paragraphs.

54 The gravamen of the complaint about the pleading is the ambiguity as to who (whether identified individually or as a class) the applicant alleges provides the “supply side market” in Victoria that is said to be unfairly advantaged. That is, the respondent says that it is not sufficiently clear from the Statement of Claim who the applicant says s 2.5.19B of the GR Act protects in respect of each specific allegation made.

55 The respondent points to paragraphs 8, 9, 10 and 13 of the Statement of Claim. It is convenient to set out those paragraphs:

Victorian bookmakers

8. At all material times there were licensed bookmakers in Victoria offering services the same as or similar to those offered by [the applicant], namely, the provision of telephone or online wagering services.

9. At all material times, TABcorp Holdings Limited (TAB) was the holder of a licence enabling it to conduct or offer telephone or online wagering services in Victoria and elsewhere.

10. At all material times Sportsbet competed with such licensed bookmakers in Victoria to supply betting or wagering services to persons in Victoria and elsewhere.

…

13. At all material times, s 2.5.16A, and later s 2.5.19B, of the [GR] Act (together “the Victorian provisions”) exempted licensed bookmakers in Victoria, and the TAB, from the requirement to obtain approval.

56 The respondent notes the references to licensed bookmakers in Victoria in paragraph 8; and to TABcorp as the licensee in paragraph 9, and in paragraph 10 to “such bookmakers”. It says that it is not clear on the pleading who “such bookmakers” are, whether they are the licensed bookmakers in paragraph 8, or TABcorp in paragraph 9. The respondent also notes the later reference in paragraph 13 to “licensed bookmakers in Victoria, and the TAB” (emphasis added). Paragraph 13 suggests that the TAB is not a licensed bookmaker.

57 Paragraphs 30 and 31 (set out above) then refer to “licensed bookmakers in Victoria” in alleging that the impugned provisions preclude competition between the applicant and licensed bookmakers in Victoria (at paragraph 30) and deny to the applicant access to information respecting race fields that is not denied to licensed bookmakers in Victoria (at paragraph 31). The respondent says it is not clear whether the term “licensed bookmakers in Victoria” is to include the TAB, and says that paragraphs 29.1, 29.2 and 33 do not assist. Those paragraphs (also set out above) refer to the alleged discrimination by the impugned provisions between “in-State and out-of-State licensed bookmakers”. The respondent says it is not clear whether different terminology is used because “in-State licensed bookmakers” is wider than “licensed bookmakers in Victoria” and hence would include TAB, or whether the two terms are intended to have the same meaning. Paragraph 33 alleges that the impugned provisions are said to “protect the turnover and income of licensed bookmakers (wagering operators) in Victoria”. The respondent suggests that perhaps the reference to “wagering operators” is to widen the reference in paragraphs 8 and 9 to “wagering services”, or whether the term refers to a separately designated sub-group of “licensed bookmakers in Victoria”. The applicant says that the use of the words “wagering operator” should be “wagering service provider”.

58 The respondent says that it is fundamental to a constitutional challenge of this nature to know exactly who the applicant alleges it is in competition with (the in-State supply) and who it alleges the impugned legislation protects in each of paragraphs 29 to 33 of the Statement of Claim inclusive. The respondent says that without this knowledge, the applicant’s case is too vague and ambiguous for the respondent to know what is alleged against it.

59 In Betfair Pty Limited v State of Western Australia (2008) 234 CLR 418, Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ observed at [4] the importance of the determination of the ambit of any market of the supply and demand side:

What might be called the out-of-State “supply” as well as the in-State “demand” side are represented by Betfair and Mr Erceg respectively. The importance in the determination of the ambit of any market of the supply and demand side, and of notions of substitution of various goods and services available in a market, is explained by McHugh J in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374 at 454-6.

60 The other complaint in respect of this part of the pleading is the assertion of practical effect in paragraphs 30 and 31 of the Statement of Claim. The respondent says that it is unclear whether the assertions of practical effect set out in paragraphs 30 and 31 are referable to paragraph 29.2, and whether the assertion in paragraph 32 of a lack of reasonable adaptation to the permissible object relates to either paragraph 29.2 or 29.1 or both. The respondent also notes the reference in paragraph 31 to the applicant “and others” and complains that that reference is inadequate.

61 The applicant says that it is clear that the “practical effect” is that pleaded in paragraphs 30 and 31, referable to paragraph 29.2, and as to how that practical effect is achieved, the applicant says that is a matter for evidence, not particulars.

62 The respondent had raised this ambiguity in correspondence with the applicant. The respondent says that when reading the Statement of Claim as a whole, it is not clear what the case is, and that leaving aside the question of particularisation of paragraphs, it says that the respondent is not in a position to understand the nature of the s 92 case pleaded by the applicant and the way that it will be put at trial.

63 In Betfair Pty Limited v Racing New South Wales (No 1) [2009] FCA 111, Perram J noted at [27] the observations of Brennan J in Davids Holding Pty Ltd v Byrnes (1987) 71 ALR 251 at 252 where his Honour said:

The notorious difficulties in the application of s 92 of the Constitution appear in the judgments of this court and a party who proposes to cite a judgment in support of his case will need to have a finding of fact on which to found his submission. For this reason it will be desirable for the issues to be defined as precisely as possible and for specific findings to be sought by the party interested to obtain them.

64 There is some ambiguity on the face of the Statement of Claim as to what is meant by the assertion of a “practical effect”. Clearly that will need to be refined so that the respondent can understand the nature of the discrimination asserted. The question as to who are the “supply side market” said to be advantaged is also apparently a little ambiguous, owing to the terminology used.

65 The question is whether the defects identified in the Statement of Claim are sufficiently grave to warrant the exercise of the power under O 11 r 16 of the Federal Court Rules to strike out those parts of the Statement of Claim. The power to strike out pleadings is a power to be used only sparingly.

66 The way in which a s 92 case should be pleaded was discussed by Dawson J in East-West Airlines (Operations) Ltd v Commonwealth (1983) 49 ALR 323 at 326 where his Honour approved Fullagar J’s earlier observations:

The manner in which a claim for a declaration of invalidity on the basis of a contravention of s 92 should be pleaded is adverted to by Fullagar J in Associated Stevedores Pty Ltd v Tasmania (1961) 35 ALRJ 71 where he says: “So far as the contravention of s 92 is concerned I can see no reason why the statement of claim should not simply (1) allege with appropriate particulars that the plaintiffs are engaged in interstate trade or commerce; (2) allege with appropriate particulars that the effect of the Tasmanian Act is to interfere with the freedom of that trade and commerce; and (3) claim relief by way of declaration accordingly”.

Clearly, the pleadings of material fact can in a s 92 case be quite brief, as they are here, and assert the provision, the discrimination, and the protection as to effect, but both clearly that is so, with the appropriate particulars.

67 The applicant says that its case is clear when one reads the Statement of Claim as a whole, and says that it gives sufficient notice of the case that has to be met and fulfils the proper function of pleadings: Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.

68 I do not propose to strike out the challenged paragraphs of the Statement of Claim, or to order further and better particulars of them. That will involve a serial exchange of further documentation, and possibly an unnecessary dispute about the adequacy of the further information pleaded or particularised.

69 In my view, the interests of justice and of the parties in securing a fair but prompt and efficient trial is better served by further pretrial directions. They will require the applicant to set out the facts which it seeks to prove at the hearing, including (at least at present) the facts relating to the claim based upon a breach of contract. They will require the applicant to provide a book of the documents it seeks to tender at the hearing. And they will require the applicant to provide a succinct but clear outline of its contentions based upon those facts. Having regard to the nature of the matter, it is not likely that there will be extensive factual dispute or dispute about the relevant documents. In that way, the respondent will know clearly the case it has to meet.

70 The pretrial directions will also require the respondent to respond to those three categories of material; it will have to do so in a way which is directly responsive to them, so that if it disputes a particular fact that will be clear, and if it asserts additional facts that too will be clear. So too will its position in relation to documents be clear. It will have to provide a succinct but clear outline of its responsive submissions.

71 I will set a timetable for those steps to be taken after hearing from the parties. I will also then set a provisional hearing date. I will subsequently conduct a pre-trial conference to ensure that all factual or documentary matters which might arise are identified, and directions given to ensure they are addressed efficiently at the hearing. Any other issues which require consideration to ensure a fair and efficient hearing can be addressed at that time.

72 I will of course give liberty to the parties to apply in the meantime.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 10 December 2009

Counsel for the Applicant:	T North SC and A Tokley

Solicitor for the Applicant:	Fitzpatrick Legal

Counsel for the Respondent:	D Batt

Solicitor for the Respondent:	HWL Ebsworth

Date of Hearing:	7 August 2009

Date of Judgment:	10 December 2009

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