FEDERAL COURT OF AUSTRALIA Sportsbet Pty Ltd v State of New South Wales (No. 2) [2009] FCA 762 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 17 JULY 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1821 of 2008 BETWEEN: SPORTSBET PTY LTD Applicant AND: STATE OF NEW SOUTH WALES First Respondent RACING NEW SOUTH WALES Second Respondent HARNESS RACING NEW SOUTH WALES Third Respondent JUDGE: PERRAM J DATE OF ORDER: 17 JULY 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The parties bring in Short Minutes of Order to give effect to these reasons within seven days. 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. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1821 of 2008 BETWEEN: SPORTSBET PTY LTD Applicant AND: STATE OF NEW SOUTH WALES First Respondent RACING NEW SOUTH WALES Second Respondent HARNESS RACING NEW SOUTH WALES Third Respondent JUDGE: PERRAM J DATE: 17 JULY 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This judgment concerns a dispute between the parties as to the provision of further and better particulars. Paragraph 86 of the applicant's ("Sportsbet's") amended statement of claim alleges: The burden or disadvantage imposed by ss 33 and/or 33A on trade commerce and intercourse between the Northern Territory and New South Wales is not reasonably appropriate and adapted to any legislative object which is consistent with s 49 of the Northern Territory (Self Government) Act 1978 (Cth). 2 Racing New South Wales and Harness Racing New South Wales ("the respondents") respond to this allegation in a number of ways including by the making of an allegation that ss 33 and 33A of the Racing Administration Act 1998 (NSW) do serve the legitimate object of ensuring that those "who use the products of the New South Wales racing industry (more specifically race field events), make a contribution to the industry commensurate with their use of those products…" 3 Sportsbet has sought further and better particulars as to the participants and parameters of the New South Wales racing industry. The following response was eventually received: 9. The New South Wales thoroughbred racing industry comprises three integrated parts: 9.1 the production of thoroughbred horses (this includes horse breeding, blood stock sales, horse ownership, and the training and upkeep of horses); 9.2 Racing (which entails the holding of race meetings and includes racing administration, race clubs and jockeys); 9.3 wagering operators (being all wagering operators who have approval under section 33A of the Racing Administration Act); 10. The New South Wales thoroughbred racing industry also includes functions for administration and regulation provided for under the Thoroughbred Racing Act 1996 (NSW) and the Racing Administration Act 1998 (NSW). 11. The New South Wales harness racing industry comprises three integrated parts: 11.1 the production of horses (this includes horse breeding, blood stock sales, horse ownership, and the training and upkeep of horses); 11.2 Racing (which entails the holding of race meetings and includes racing administration, race clubs and drivers); 11.3 wagering operators (being all wagering operators who have approval under section 33A of the Racing Administration Act); 12. The New South Wales harness racing industry also includes functions for administration and regulation provided for under the Harness Racing Act 2002 (NSW) and the Racing Administration Act 1998 (NSW). 4 This response is, so it seems to me, quite adequate. I apprehend that Sportsbet's complaints relate to an earlier iteration of this response, which was somewhat more brusque. No particular complaint about the present response was advanced to me. 5 Paragraph 92 of the Amended Statement of Claim alleges: The burden or disadvantage that the Racing NSW Turnover Condition and the HRNSW Turnover Condition imposes, in each case, on trade, commerce and intercourse between the Northern Territory and New South Wales is not reasonably appropriate and adapted to, and is not reasonably necessary for, any legislative object which is consistent with s.49 of the Northern Territory (Self Government) Act 1978 (Cth). 6 The respondents deny this in various ways including as follows: … says that the burdens or disadvantages alleged by the applicant to be imposed by the Racing NSW Turnover Condition are reasonably appropriate and adapted to the legitimate object pleaded in paragraph 85.1(b)(i) of this defence: (A) any burden or disadvantage imposed by the Racing NSW Turnover Condition arising from the exempt turnover threshold of $5 million as pleaded in paragraph 67 of the amended statement of claim is reasonably appropriate and adapted to the legitimate object pleaded in paragraph 85.1(b)(i) of this defence. Particulars The administrative costs and expenses of quantifying and enforcing fees to wagering operators whose wagering turnover on New South Wales thoroughbred racing is less than $5 million per annum outweigh or significantly diminish any benefit from such fees 7 Sportsbet says it is entitled to know what, if any, further matters or circumstances are to be relied upon to prove this matter. Subsequently, the respondents have indicated that they were not going to rely upon any other facts, matters or circumstances to make good the allegation. Despite that, Sportsbet said it was entitled to know what was meant by "significantly diminish any benefit from such fees". This, I think, is akin to seeking to find out the evidence upon which respondents will eventually rely to make good the allegation. So viewed, it is not a proper request for particulars. A similar series of claims were made about the particulars provided for paragraph 85.1(b)(iii)(C) which should be determined in the same manner. 8 Sportsbet then sought to have the respondents identify particular sections of legislation referred to in the respondents' defence. Paragraph 26.1 of the defence is as follows: 26.1 rely on the terms and effect of the Racing Administration Act, the Unlawful Gambling Act and the regulations to those Acts and authorities and approvals issued pursuant to those Acts; 26.2 otherwise do not admit the paragraph. 9 That paragraph is in response to paragraph 26 of the amended statement of claim which is in these terms: In New South Wales an authorised licensed bookmaker may, subject to the terms of the licence and any related authorisation: (a) accept bets at a licensed racecourse from punters in person; and (b) accept bets from punters by telephone or electronically. 10 It is unclear what the respondents' actual position is. One cannot tell whether the allegation that a licensed bookmaker may accept bets at a licensed racecourse is not admitted. That is because paragraph 26.1 tells the reader nothing. It is all very well to say that particular laws are relied upon, but without an indication of which parts of them are relied upon or some indication of the end to which that reliance is bent, the meaning of paragraph 26 remains elusive. Sportsbet is entitled to know whether the respondents are saying that paragraph 26 of the amended statement of claim is wrong in whole or in part and, if so, which parts of the laws justify that conclusion. If, in truth, they are merely putting Sportsbet to proof then the reference to these laws is otiose. If, on the other hand, they are not and an affirmative denial is concealed within paragraph 26.1, then it should be disclosed. In either case, Sportsbet is entitled to know its position. It is appropriate, in those circumstances, that the provisions of the legislation upon which the respondents intend to rely be identified. I reach the same conclusion in relation to paragraphs 28.1, 30.1, 31.1, 34.1, 37.1, 38.1, 39.2, 40.1, 44.1, 45.1, 46.1, 47.1, 49.1, 50.1, 51.1, 59.1 and 60.1. 11 Paragraph 41 of the amended statement of claim provides: Since about December 1997, TAB Limited has maintained commercial arrangements with Racingcorp Pty Ltd on behalf of the three racing codes in New South Wales in respect of its licence and its authorised activities ("the Commercial Arrangements"). Particulars These commercial arrangements include a Racing Distribution Agreement as amended from time to time. The Racing Distribution Agreement was first entered into on or about 11 December 1997. Further particulars will be provided after discovery. 12 Paragraph 41 of the defence provides: As to paragraph 41 of the amended statement of claim, the second and third respondents: 41.1 admit that TAB Limited entered into the Racing Distribution Agreement (RDA) with Racingcorp Pty Limited (Racingcorp), the second respondent, the third respondent and GRNSW; 41.2 rely on the terms and effect of the RDA, as amended from time to time; and 41.3 otherwise do not admit the paragraph. 13 Sportsbet claims to be entitled to know the particular clauses of the RDA relied upon. Although that demand bears a superficial similarity with its demand to know the sections of legislation relied upon above, that similarity diminishes on approach. The reliance upon the terms of the RDA has no bearing upon the matter alleged in paragraph 41. The respondents are merely responding to the allegation that the commercial relationships are governed by the terms of the Racing Distribution Agreement by making the point that that agreement was amended from time to time. Accordingly, particulars are not called for. The same conclusion should be reached about paragraph 42.2. However, in the case of paragraphs 43.2, 64.1, 65.1(a), 74.2(a) and 75.2(a) it is difficult to understand the pleading without knowing the paragraphs relied upon. Accordingly, the clauses relied upon should be provided for those paragraphs. 14 The parties are to bring in short minutes of order to give effect to these reasons within seven days. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 17 July 2009 Solicitors for the Applicant: Fitzpatrick Legal Solicitors for the Respondents: Yeldham Price O'Brien Lusk Date of Hearing: 9 June 2009 Date of Judgment: 17 July 2009