FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Ltd v State of New South Wales (No 6) [2009] FCA 1511

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 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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REASONS FOR JUDGMENT

1                                             This afternoon I delivered a judgment on an application by Sportsbet to adjourn the proceedings for a period of two weeks.  I dismissed that application.  At the conclusion of the delivery of my reasons, Mr North QC, who appears for Sportsbet, raised with me the question of leave.  I thereafter retired to consider that issue.  In the course of doing so, I ascertained that I had two weeks of availability in the first two weeks of February next year, which I did not apprehend I had at the time I delivered my previous reasons.  Upon returning to court I informed the parties of that.  It is apparent, as a result, that Mr Kerr SC, who is led by Mr Gleeson SC for the second and third respondents, is available on the 3, 4, 5, 8, 9, 10, 11 and 12 February 2010, a period during which I am, in principle, available.

2                                             Mr Kirk is not available at all.  Mr North said that Sportsbet will make itself available to whatever dates the Court might be minded to fix.  I treated that discussion as a fresh application for an adjournment on the basis of the recent discovery of the additional trial dates.  The adjournment was resisted by the respondents.  It was put that it was not shown that the matter would not be ready by next week, that the prejudice continued to accrue and that the question of the availability of counsel for New South Wales was a significant one having regard to the nature of the case.  At the moment the hearing is scheduled to commence on Monday.  It is apparent that the applicant, Sportsbet, finds itself in a situation which it regards as burdensome.

3                                             There is a risk that, when the case begins on Monday, it will be disordered.  However, as presently advised, it does not seem to me that I can say that the case will necessarily be disordered or that the steps which need to be taken by Monday cannot be taken.  Mr North QC strenuously submitted to me that the case could not be prepared by Monday.  However, as I indicated in my initial judgment, the volume of paper involved, whilst substantial, does not seem to me to be excessive for a four-day period, particularly where there are three counsel available to peruse the documents in question.  There are, no doubt, procedural aspects such as the preparation of a list of tender documents which needs to be attended to but I do not think that it could be said with certainty this afternoon that the case is not ready to proceed.

4                                             In those circumstances, I declined to adjourn the proceedings again.  The best time to ascertain whether Sportsbet is in a position to proceed with its case will be when that case commences.  I cannot be satisfied that the concerns expressed today will translate into reality in four days time.  Accordingly I dismiss the further application.

Associate:

Dated:         25 November 2009