Racing New South Wales v Betfair Pty Limited [2009] FCAFC 119

FEDERAL COURT OF AUSTRALIA

Racing New South Wales v Betfair Pty Limited [2009] FCAFC 119

PRACTICE AND PROCEDURE – appeal from interlocutory decision of primary judge – discovery – whether amended statement of claim misconstrued by primary judge – whether respondent in the proceedings below would be caused injustice in not being able to test a critical issue. CONSTITUTIONAL LAW – s 92 Constitution – whether documents concerning the profitability of the applicant in the proceeding below relevant to the question of whether the impugned legislation imposes a discriminatory burden of a protectionist kind contrary to s 92 Constitution – question of profitability held to be relevant because the present case pleaded in a way that brings into question the practical effect of the impugned legislation – not simply a question of whether the impugned legislation is discriminatory on its face. Held: leave to appeal granted and appeal allowed. Commonwealth of Australia Constitution Act (Imp), s 92 Racing Administration Act 1998 (NSW), s 33 Totalizator Act 1997 (NSW) Federal Court Rules, Order 15 r 2(3) Adam P Brown Male Fashions Pty Limited v Philip Morris Inc. (1981) 148 CLR 170 cited Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 distinguished Betfair Pty Limited v Racing New South Wales (No 1) [2009] FCA 111 cited Betfair Pty Limited v Racing New South Wales (No 3) [2009] FCA 536 cited Betfair Pty Limited v State of Western Australia (2008) 234 CLR 418; [2008] HCA 11 distinguished Cole v Whitfield (1988) 165 CLR 360 followed Fox v Robbins (1909) 8 CLR 115 cited House v The King (1936) 55 CLR 499 applied In re the will of F B Gilbert (dec'd) (1946) 46 SR (NSW) 318 cited

RACING NEW SOUTH WALES (ABN 86 281 604 417), HARNESS RACING NEW SOUTH WALES (ABN 16 962 976 373) and ATTORNEY-GENERAL (NEW SOUTH WALES) v BETFAIR PTY LIMITED (ACN 110 084 985)