FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Ltd v State of New South Wales (No 5) [2009] FCA 1510

SPORTSBET PTY LTD v STATE OF NEW SOUTH WALES, RACING NEW SOUTH WALES and HARNESS RACING NEW SOUTH WALES

NSD 1821 of 2008

PERRAM J

25 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                   The application is dismissed.

2.                  The applicant is to pay the respondents’ costs of the application.

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.

REASONS FOR JUDGMENT

1                                             Yesterday I dismissed Sportsbet’s application for further discovery and I have just delivered my reasons for that conclusion.  This afternoon I have varied the orders previously made to provide for the provision of unmasked minutes of certain meetings, the unmasking relating to relevance and not privilege.  I do not regard that as being a material alteration to yesterday’s order.  Immediately after that decision was announced I heard argument on Sportsbet’s application to adjourn the trial commencing on Monday 30 November 2009 for two weeks.

2                                             The basis for that application was as follows: 

(a)        the second and third respondents provided Sportsbet’s solicitors with two lever arch folders on Monday 23 November 2009, that is this Monday two days ago; 

(b)       the second and third respondents provided four lever arch folders on Friday 20 November 2009, that is four days ago; 

(c)        the second and third respondents have provided a further lever arch folder of documents which were formally the subject matter of a claim for privilege on Friday 13 November 2009 which was 12 days ago; 

(d)       there are still some documents the subject of claims for public interest immunity or legal professional privilege which have not yet been determined.   I was informed that there were 17 and 32 such documents respectively; 

(e)        there is a subpoena to Racing Corp returnable this morning seeking various documents including documents in respect of which I yesterday refused discovery; 

(f)        Sportsbet had received from the TAB some 2240 pages of documents located on 10 disks as at 13 November 2009; 

(g)        the documents the subject of the public interest immunity and legal professional privilege claims had been in the possession of the respondents for weeks or months; 

(h)        a fresh list of documents was delivered on 23 November 2009, that is Tuesday, involving fresh privilege claims which need to be considered and assessed. 

Submissions (a) to (c) involve in total seven lever arch folders of paper.  I was informed from the bar table that there are four counsel presently briefed in the proceedings including three who are briefed full time. 

3                                             Mr Fitzpatrick is effectively a sole practitioner, although he is assisted by two paralegals.  I do not regard the processing of seven lever arch folders of paper some days out from the trial with the assistance of a solicitor and three barristers as being either unusual or intolerable, particularly in litigation of the present kind.   As to (d), insofar as it is said that there are still documents to be produced which were formerly the subject of public interest immunity claims, it would appear that the documents were in fact produced to Sportsbet on 20 November 2009.  Insofar as the legal professional privilege claims are concerned I propose to hear argument on those today if it is possible, and to resolve those claims by tomorrow.  Having regard to the number of documents involved, I do not think that they represent a risk for the trial date. 

4                                             As to (e), the fact that a subpoena to Racing Corp is returnable today does not take the matter very far.  At this stage I do not know what is being produced, what its relevance might be or what the effect upon the flow of the trial of such documents, if tendered, would be.  As matters currently stand their existence does not provide a proper basis for adjourning the trial.  Accepting that there are over 2000 pages of documents which have been produced from TAB which Sportsbet have had access to for 12 days does not seem to me to explain why the case needs to be adjourned either.  There has been more than enough time to deal with the matters the subject of those documents. 

5                                             I reject the submission in (g).  The public interest immunity matters have only recently been determined by Jagot J and by the Full Court.  The privilege issues were resolved recently by Mr Hunter QC.  It was, in my opinion, reasonable for the second and third respondents to withhold the documents that they did withhold until Mr Hunter determined otherwise.  In any event it was not explained to me what was in the documents which have now been produced which embarrassed Sportsbet in terms of a hearing on Monday morning.

6                                             I do not regard the submission in (h) as having much force in the context of an adjournment application.  No doubt if there turns out to be something in any of the documents which are produced which causes prejudice or which requires the adjournment of the matter that issue can be revisited then. 

7                                             Sportsbet’s substantial complaint is that it has received many folders of paper and has a relatively short period of time to deal with those folders.  It is to be expected in litigation of this kind that demands, often substantial, will be made on litigant and court alike.  The real problem, I venture to suggest, is that Mr Fitzpatrick is under-resourced but even that proposition is difficult to sustain in light of the fact of there appearing to be three counsel briefed full time.  In my opinion, the burdens portrayed by Sportsbet are reasonably capable of being borne.  I was informed from the bar table that one of the four counsel retained, Mr Young QC, is not, in any event, available for a hearing next week – a proposition which,  in the circumstances, was somewhat surprising. 

8                                             Sportsbet also suggested that it needed to show some of the documents in question to an economist.  No economist has been called by either side in-chief and it is not at all obvious why Sportsbet needs one in reply.  In the absence of some compelling explanation of what the purpose of this endeavour is to be, I am presently indisposed to giving it much weight.  I should particularly note that I cannot accept, as Mr Fitzpatrick put it in his affidavit, that an economic analysis of the ability of TAB to absorb the fee is “a central allegation” in Sportsbet’s case.  No expert evidence to that effect has been filed and Sportsbet has previously indicated that it is calling only one witness, who is not an economist.  I cannot see how this “central allegation” is to be dealt with only by way of reply.

9                                             In all those circumstances I conclude that if the trial proceeds on Monday next Sportsbet will be placed under a significant burden.  However, it is not an unfair burden and, so it seems to me, it is not a burden which is incapable of being borne.  However, even given the urgency attending the proceedings it is apparent, I think, that a short adjournment would not directly cause prejudice to the respondents.  The Betfair case is likely to be determined on the first day of term next year.   If Sportsbet could be completed before Christmas there is no reason it could not be delivered at the same time.  In my previous judgment today, I have explained the reason the present proceedings need to proceed with reasonable urgency.  I will not repeat those remarks.

10                                          The present difficulty is the availability of time which is suitable to the court and to all parties.  I can spare the parties the week commencing on 7 December 2009 but neither Mr Gleeson nor Mr Kerr are available at that time.  I am not prepared to force the respondents to brief fresh counsel at this stage.  There is no other time before Christmas.  There is a possibility that a hearing could be held towards the end of February 2010 but for logistical reasons relating to my annual leave, no judgment would result until early May.  This is likely to be some months after the Betfair judgment is delivered.  That carries with it a real risk of delaying the final time at which the present issues will be resolved.  That risk is not inevitable but it is non‑trivial.

11                                          Contrary to some of the submissions made by the respondents, I do not see Sportsbet’s approach to these proceedings as being dilatory.  They have been heavily contested; they are complex and further they have been expedited.  There is more than a grain of truth in the proposition that Sportsbet’s application has tendered to be overshadowed by the more dramatic manoeuvres in the Betfair proceedings.  Be that as it may, although I have considerable sympathy for the position of the legal practitioners appearing for Sportsbet, I do not think that Sportsbet is presently unable to commence a hearing on Monday morning.  In those circumstances, I decline to adjourn the trial date.

12                                          The application is dismissed with costs.

Associate:

Dated:         25 November 2009