State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160

FEDERAL COURT OF AUSTRALIA

State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160

PRIVILEGE – Legal professional privilege – Legal advice – Whether provision of draft legislation by Parliamentary Counsel to State constitutes legal advice – Whether privilege covers communications by State to third parties for dominant purpose of seeking legal advice – Draft legislation implicitly provides privileged legal advice – Considering nature of consultative process involved in drafting instructions for draft legislation, privilege applied to draft instructions and related communications between State and third parties PRIVILEGE – Legal professional privilege – Legal advice – Waiver of privilege – Whether State waived privilege by failing to place "use restraint" on privileged communications – Whether State waived privilege by putting privileged communications in issue – State did not act inconsistently with maintenance of confidentiality and therefore did not waive privilege PRACTICE AND PROCEDURE – Leave to appeal interlocutory decision – Whether decision attended by sufficient doubt – Whether substantial injustice would result if leave denied – Leave granted

Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Waterford v Commonwealth (1987) 163 CLR 54 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 Hall v Meyrick [1957] 2 QB 455 Tickell v Trifleska (1990) 24 NSWLR 548 followed Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Mann v Carnell (1999) 201 CLR 1

STATE OF NEW SOUTH WALES v BETFAIR PTY LTD ACN 110 084 985, RACING NEW SOUTH WALES (ABN 86 281 604 417) and HARNESS RACING NEW SOUTH WALES (ABN 16 962 976 373)