FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Ltd v The State of Victoria [2011] FCA 170

THE COURT ORDERS THAT:

1.    Tabcorp Holdings Ltd (ACN 063 780 709) (Tabcorp) be added as the third respondent in the proceeding pursuant to O 6 r 8(1)(a) and (b) of the Federal Court Rules and the title of the proceedings be amended accordingly.

2.    By no later than 4:00pm on 7 March 2011, Tabcorp file a defence to the Amended Statement of Claim dated 6 October 2010.

3.    By no later than 4:00pm on 7 March 2011, Tabcorp file and serve any affidavit material upon which it intends to rely.

4.    By no later than 4:00pm on 11 March 2011, the Applicants file and serve a Reply, if any.

5.    The costs of the joinder application be costs in the cause.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1    By Notice of Motion filed on 10 February 2011, Tabcorp Holdings Ltd (Tabcorp) again seeks to be added as a respondent pursuant to O 6 r 8(1)(a) and/or (b) of the Federal Court Rules 1979 (Cth) (the Rules) or leave to intervene in the proceeding pursuant to O 6 r 17(1) of the Rules on such terms and conditions as the Court sees fit.

2    Tabcorp sought orders in similar terms in October 2010. That application was rejected in November 2010: see Sportsbet Pty Ltd v The State of Victoria [2010] FCA 1219 (Sportsbet #1). The background to these proceedings was summarised in Sportsbet #1 at [4] to [14]. Tabcorp does not seek to re-agitate any finding in Sportsbet #1. Instead, Tabcorp submits that a new issue which directly affected it had now been pleaded by the applicants in their Reply and that issue was not before the Court when Sportsbet #1 was decided. The allegation that is of the most concern to Tabcorp is a pleaded claim that Tabcorp’s Licence, ss 4.2.1 and 4.5.3 of the Gaming Regulation Act 2003 (Vic) (the GR Act) and an approval by the relevant Minister did “not include the taking of bets at fixed odds on a horse race, harness race or greyhound race”. Tabcorp accepts bets at fixed odds on horse races, harness races and greyhound races.

3    The respondents do not oppose Tabcorp’s current application. The applicants (Sportsbet Pty Ltd (Sportsbet) and Eureka Hotel Holdings Pty Ltd (Eureka), collectively the applicants) oppose the orders sought by Tabcorp. They contend that both the issue (and the material relevant to the issue) was before the Court at the time of Sportsbet #1.

4    For the reasons that follow, I consider that Tabcorp should be added as a respondent pursuant to O 6 r 8(1)(a) and/or (b) of the Rules.

BACKGROUND

5    As noted earlier, a summary of the facts giving rise to the issues in this proceeding are summarised in Sportsbet #1. Since that hearing, pleadings have closed and the applicants and the respondents have filed affidavit evidence. It will be necessary to return to consider the pleadings in further detail below.

APPLICATION AND RELEVANT PRINCIPLES

6    The applicable principles concerning joinder and intervention were again not in dispute. They were relevantly summarised by Mansfield J in Sportsbet Pty Ltd v Harness Racing Victoria (No 2) [2010] FCA 952 (HRV) at [16] – [22]. It is unnecessary to repeat them.

7    However, reference should now be made to the unanimous decision of the High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 266 ALR 462 where the Court stated that where a person is directly affected by an order of the Court, the question of joinder may be one of right, not discretion, in deciding whether that person should be a party to the proceeding: at [131] – [138].

new issue?

8    Tabcorp’s current application for joinder was based principally on the contention that the applicants’ Reply filed on 22 December 2010 raised a new issue which directly affected it. In the Reply filed by the applicants, they relevantly:

…

1.2    deny that Tabcorp is the only person authorised to conduct betting where the bookmaker is not located on a racecourse in Victoria at the time when the bet is made;

1.3    say further that, by Notice published in the Victorian Government Gazette dated 13 November 2008, the Minister for Racing The Hon Rob Hulls MP and the Minister for Gaming, the Hon Tony Robinson MP purported to approve betting competitions under s 4.5.3 of the GR Act in the following form (the fixed odds approval):

The following classes of events and contingences are approved with fixed odds under s 4.5.3 of the Gambling Regulation Act 2003 –

Thoroughbred racing, harness racing and greyhound racing – subject to the following conditions:

(i)    Races held in Victoria must be controlled and regulated by Racing Victoria Limited, Harness Racing Victoria or Greyhound Racing Victoria;

(ii)    Races held outside Victoria must be controlled and regulated by an authority or body duly recognised by the laws operating within the relevant jurisdictions;

(iii)    Betting may only be held:

(a)    on any race, whether a Group or listed race or otherwise; or

(b)    on any contingency relating to any combination of any races;

(iv)    betting may only be held with prior written approval of VicRacing Pty Limited, ACN 064 067 849, and Racing Products Victoria Pty Limited, ACN 064 067 867; and

(v)    that approval may be revoked at any time in accordance with section 4.5.5(1)(b) of the Gambling Regulation Act 2003 on the understanding that in all reasonable circumstances such withdrawal will not be initiated without providing 6 months notice.

This approval comes into operation on the date of the commencement of the provisions of section 4 of the Racing Act 1958 as amended by the Racing and Gambling Act 2008.

1.4    The fixed odds approval is not an approval within the operation of or for the purpose of s 4.5.3 of the GR Act because

1.4.1    Fixed odds betting on a horse race, harness race or greyhound race is not a betting competition;

1.4.2    is inconsistent with the grant to licensee of an exclusive licence to conduct a totalisator;

1.4.3    the terms of the fixed odds approval are not authorised by s 4.5.3(1).

1.5    To the extent that Tabcorp has, by reason of its licence and s 4.2.1 and 4.3.1 of the GR Act authority or permission to conduct “approved betting competitions”, as defined in s 1.3 of the GR Act and approved by the Minister under s 4.5.3 or Commission under s 4.5.6:

1.5.1    such authority or permission does not include the taking of bets at fixed odds on a horse race, harness race or greyhound race;

1.5.2    further or alternatively such authority or permission to conduct “approved betting competitions” including under “the fixed odds approval” is not exclusive to Tabcorp in law or in fact.

…

PARTICULARS TO PARA 1.3.2

The GR Act does nor (sic) provide that the conduct of approved betting competitions is exclusive to the licence.

Off-course fixed price betting on a horse race, harness race or greyhound race are conducted by Victorian licensed bookmakers by telephone or by means of the internet.

1.6    By reason of the above apart from its licence to conduct a Totalizator (sic) which is exclusive to it Tabcorp does not:

1.6.1    have exclusive rights to conduct off course betting in Victoria; and

1.6.2    does not have exclusive retail rights in relation to betting in Victoria.

…

(Emphasis in original.)

Tabcorp placed particular emphasis on paragraph [1.4] of the Reply.

9    At the core of Tabcorp’s application for joinder is whether or not the challenge to the fixed odds approval purportedly given pursuant to s 4.5.2 of the GR Act was an issue before the Court at the time of Sportsbet #1. In my view, it was not.

10    In the Amended Statement of Claim (the ASC) filed by the applicants on 6 October 2010, under the heading “Tabcorp”, the applicants pleaded that at all material times Tabcorp held a licence issued to it under the GR Act, defined as the “Tabcorp Licence”: para [20]. The next paragraph of the ASC is important. Paragraph [21] pleads that at all material times the Tabcorp Licence and / or the GR Act:

21.1    authorised Tabcorp, subject to the GR Act, regulations made thereunder, the Racing Act 1958 and any conditions to which the Tabcorp Licence is subject, to conduct wagering and approved betting competitions (s 4.2.1);

21.2    authorised Tabcorp to operate and conduct a totalisator (s 4.2.2);

21.3    provided that any place in which wagering or an approved betting competition undertaken by Tabcorp or its agents is not a common gaming house or place and thereby excluded from s 2.5.2 of the GR Act (s 4.2.1(2));

21.4    authorised the [Victorian Commission for Gambling Regulation] to approve any equipment including computer hardware or software used in connection with a totalisator or approved betting competition conducted by Tabcorp by itself or its agents (s 4.2.3);

21.5    authorised Tabcorp to accredit agents to accept wages on wagering events or bets on approved betting competitions on its behalf (s 4.2.9(2)).

11    On 5 November 2010, the respondents filed their joint defence. In response to paragraphs 20 and 21, they stated:

20.    They admit that Tabcorp has since 1994 held the wagering licence granted under s 6 of the Gaming and Betting Act 1994 and subsequently under Part 3 of Chapter 4 of the GR Act but otherwise do not admit paragraph 20.

21.    Subject to reference to the full terms of Part 2 of Chapter 4 of the GR Act and the Tabcorp licence referred to in paragraph 20 above, they admit paragraph 21. They say further that, by reason of Part 2 of Chapter 4 of the GR Act and the Tabcorp licence, together with the Racing Act 1958, Tabcorp is the only person authorised to conduct off-course wagering (including totalisator wagering and other betting) at locations in Victoria.

(Emphasis added.)

12    It was in response to these paragraphs of the respondents’ defence that the applicants filed the extensive reply: see [8] above. As noted earlier, the reply referred to a notice published in the Victorian Government Gazette on 13 November 2008 which purported to approve fixed odds betting as a betting competition under s 4.5.3 of the GR Act (defined as the fixed odds approval). The applicants then contended (paragraph 1.4) that the fixed odds approval was not an approval within the operation of or for the purpose of s 4.5.3 of the GR Act because:

1.    fixed odds betting on a horse race, harness race or greyhound race is not a betting competition;

2.    is inconsistent with the grant to the licensee of an exclusive licence to conduct a totalisator; and

3.    the terms of the fixed odds approval are not authorised by s 4.5.3(1).

13    Next, the applicants contended (paragraph 1.5) that to the extent that Tabcorp has by reason of its Tabcorp Licence and ss 4.2.1 and 4.3.1 of the GR Act, authority or permission to conduct “approved betting competitions” as defined in s 1.3 of the GR Act and approved by the Minister under s 4.5.3 or by the Commission under s 4.5.6, then the authority or permission:

1.    did not include the taking of bets at fixed odds on a horse race, harness race or greyhound race; and / or

2.    to conduct “approved betting competitions” including under the “fixed odds approval” was not exclusive to Tabcorp.

14    Three forms of particulars were provided. First, a reference to paragraphs 1.3 and 1.4 of the Reply, then reference to the fact that the GR Act does not provide that the conduct of approved betting competitions is exclusive to the licence and, finally, a reference to the fact that off course fixed price betting on a horse race, harness race or greyhound race are conducted by Victorian licensed bookmakers by telephone and through the internet.

15    I accept that some of the material relevant to this issue (for example, the fact that fixed odds betting takes place) was discussed at the first hearing and is addressed in subsequent affidavit material filed by the respondents.

16    However, that material did not directly raise the current issues before the Court.

17    The allegations in paragraphs 1.4, 1.5 and 1.6 of the Reply (especially at paragraph 1.4) were raised for the first time in the Reply including, in particular, the allegation that Tabcorp’s Licence, ss 4.2.1 and 4.3.1 of the GR Act and the fixed odds approval “[do] not include the taking of bets at fixed odds on a horse race, harness race or greyhound race”. That conclusion is clear. The applicants referred to paragraphs 20 and 21 of the ASC and the transcript of the first hearing. These contentions now found in the Reply were not previously pleaded or discussed.

18    The applicants also submitted that the allegations are principally questions of statutory construction. Whether that is so, it is unnecessary for me to decide. It is sufficient for present purposes to address the question of whether the allegations are new (and they are) and the next which arises – whether a judgment of the Court may have a direct effect on the rights and liabilities of that person and not one that is merely indirect or consequential: News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-5.

19    In my view, the answer to that second question is yes. Unlike the position at the first hearing (see [17] – [19] of Sportsbet #1), there is a direct allegation that Tabcorp’s authorisations and approvals do not cover an important aspect of its current activities. For that reason, I consider that Tabcorp should be joined as party to the proceeding. In making that decision, I have ascertained that its joinder will not delay the proceeding or otherwise prejudice any party. I say that for a number of reasons. First, the respondents have already filed three affidavits from Tabcorp employees. During the hearing, the respondents told the Court they were presently considering filing three further affidavits from witnesses who are also notionally in the Tabcorp camp – Mr Derek Ridyard (an economist), Mr Andrew Harding (the Chief Executive Officer of the Australian Racing Board) and Mr Lindsay Maxsted (the former chairman of VicRacing Pty Ltd). The respondents were given until 4:00pm on 2 March to file those affidavits. Each of these affidavits was filed by the respondents on 2 March 2011. Tabcorp informed the Court that it would not seek to file any evidence in addition to the three witnesses just identified.

20    Secondly, the trial date for the proceeding is 11 April and the trial date will be maintained. There are presently interlocutory orders in place to ensure that the matter is ready for trial on that date. Tabcorp is able to comply with that timetable.

21    In the circumstances, I will grant Tabcorp its application to be joined as a respondent to the proceeding pursuant to O 6 r 8(1)(a) of the Rules. For the sake of completeness, it appears to me that Tabcorp is also entitled to be joined as a respondent under to O 6 r 8(1)(b) of the Rules: see [4] above. Given the current state of the pleadings, its joinder is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon: Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 and Fried v National Australia Bank Ltd [1999] FCA 737.

22    Given the views I have formed, it is unnecessary to consider the question of intervention under O 6 r 17(1) of the Rules.

orders

23    The orders will be that Tabcorp Holdings Ltd (ACN 063 780 709) (Tabcorp) be added as the third respondent in the proceeding pursuant to O 6 r 8(1)(a) and (b) of the Federal Court Rules and that by no later than 4:00pm on 7 March 2011, Tabcorp file a defence to the Amended Statement of Claim dated 6 October 2010 and any affidavit material upon which it intends to rely. The costs of the joinder application will be costs in the cause.

Associate:

Dated:    3 March 2011