FEDERAL COURT OF AUSTRALIA Sportsbet Pty Ltd v The State of Victoria [2011] FCA 1052 Citation: Sportsbet Pty Ltd v The State of Victoria [2011] FCA 1052 Parties: SPORTSBET PTY LTD (ABN 87 088 326 612) and EUREKA HOTEL HOLDINGS PTY LTD (ACN 135 267 597) v THE STATE OF VICTORIA, THE VICTORIAN COMMISSION FOR GAMBLING REGULATION and TABCORP HOLDINGS LIMITED (ABN 66 063 780 709) File number: VID 808 of 2010 Judge: GORDON J Date of judgment: 9 September 2011 Date of hearing: Determined on the papers Date of last submissions: 6 September 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 10 Solicitor for the Applicants: Fitzpatrick Legal Solicitor for the First and Second Respondents: Victorian Government Solicitor Solicitor for the Third Respondent: Freehills IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 808 of 2010 BETWEEN: SPORTSBET PTY LTD (ABN 87 088 326 612) First Applicant EUREKA HOTEL HOLDINGS PTY LTD (ACN 135 267 597) Second Applicant AND: THE STATE OF VICTORIA First Respondent THE VICTORIAN COMMISSION FOR GAMBLING REGULATION Second Respondent TABCORP HOLDINGS LIMITED (ABN 66 063 780 709) Third Respondent JUDGE: GORDON J DATE OF ORDER: 9 SEPTEMBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. On or before 4:00pm on 19 September 2011, on a date and at a time during the Second Applicant's usual business hours to be agreed between the Second Applicant and the Second Respondent, the Second Respondent, using appropriately qualified staff or contractors, shall return to the Second Applicant, at its premises at 152 Eureka Street, Ballarat, Victoria, the device known as the "Betbox" which device was seized by the Second Respondent on 16 July 2010. 2. The Applicants pay the Third Respondent's costs of this proceeding associated with the Applicant's Fixed Odds Challenge (addressed in Section E of Sportsbet Pty Ltd v The State of Victoria [2011] FCA 961), including the Third Respondent's costs of its application to be joined as a respondent by Notice of Motion filed on 4 February 2011 (the Joinder Application), such costs to be taxed in default of agreement. 3. The Third Respondent pay half of the Applicants' costs of the proceeding incurred after 3 March 2011 (save in relation to the Applicants' costs incurred in respect of the Fixed Odds Challenge referred to in 2 above), such costs to be taxed in default of agreement. 4. There be no other order as to the Applicants' costs of the Joinder Application. 5. The First and Second Respondents pay the remainder of the Applicants' costs, such costs to be taxed in default of agreement. AND THE COURT DECLARES THAT: 6. Sections 2.5.2 and 2.6.1 of the Gambling Regulation Act 2003 (Vic) are invalid to the extent that they apply to the installation and use in Victoria by the Applicants of the computer device known as a "Betbox". 7. Section 115 of the Liquor Control Reform Act 1998 (Vic) is invalid to the extent that it applies to the installation and use in Victoria by the Applicants of the computer device known as a "Betbox". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 808 of 2010 BETWEEN: SPORTSBET PTY LTD (ABN 87 088 326 612) First Applicant EUREKA HOTEL HOLDINGS PTY LTD (ACN 135 267 597) Second Applicant AND: THE STATE OF VICTORIA First Respondent THE VICTORIAN COMMISSION FOR GAMBLING REGULATION Second Respondent TABCORP HOLDINGS LIMITED (ABN 66 063 780 709) Third Respondent JUDGE: GORDON J DATE: 9 SEPTEMBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 22 August 2011, I published reasons for decision: Sportsbet Pty Ltd v The State of Victoria [2011] FCA 961. The parties were directed to bring in orders to give effect to the reasons for decision. The parties cannot agree. The respondents themselves do not agree. 2 The dispute may be divided into three categories – substantive orders, declarations and costs. I will deal with each in turn. Substantive orders 3 The Applicants seek the following order: On or before 4.00pm within 7 days of this Order, on a date and at [a] time during the Second Applicant's usual business hours to be agreed between the Second Applicant and the [Second Respondent], using appropriately qualified staff or contractors, shall return to the Second Applicant, at its premises at 152 Eureka Street, Ballarat, Victoria, the device known as the "Betbox" which device was seized by the [Second Respondent] on 16 July 2010. 4 The First and Second Respondents agree that this order can appropriately be made. Tabcorp, the Third Respondent, submitted that the order should not be made because it did not form part of the relief sought in the Amended Application and was not the subject of submission or consideration at trial. I reject Tabcorp's submissions. Paragraph 3 of the Amended Application did seek relief substantively in the same form as that now sought by the Applicants. I will make an order in those terms. However, I have specified a date in the first line of the Order. Declarations 5 The Applicants also sought the following declarations: [T]hat ss 2.5.2 and 2.6.1 of the Gambling Regulation Act 2003 (Vic) are invalid, to the extent that they apply to the installation and use in Victoria by the Applicants of the computer device known as a "Betbox". [T]hat s 115 of the Liquor Control Reform Act 1998 (Vic) is invalid, to the extent that it applies to the installation and use in Victoria by the Applicants of the computer device known as a "Betbox". 6 The parties agree that these declarations should be made. In my view, they are both necessary and appropriate: see Parker, In the matter of Purcom No 34 Pty Limited (In Liq) (No 2) [2010] FCA 624 at [7]-[8] and the authorities cited therein. Costs 7 As is to be expected, this was the principal area of dispute. The Applicants seek orders that: 1. the First and Second Respondents pay the Applicants' costs of the proceeding, including any reserved costs, up to and including 4 February 2011, to be taxed in default of agreement; and 2. the First, Second and Third Respondents pay the Applicants' costs of the proceeding, including any reserved costs, from 5 February 2011, to be taxed in default of agreement. The date of 4 February 2011 was the date on which Tabcorp filed its application to be joined as a respondent (the Joinder Application). The Joinder Application was heard on 28 February 2011 and determined in Tabcorp's favour on 3 March 2011. The basis on which Tabcorp was joined was what became known as the "Fixed Odds Challenge" as described in Section E at [161] to [172] of Sportsbet Pty Ltd v The State of Victoria [2011] FCA 961. The Court ordered that the costs of the Joinder Application be costs in the cause: Sportsbet Pty Ltd v The State of Victoria [2011] FCA 170 at [23]. Tabcorp successfully defended the Fixed Odds Challenge. 8 Tabcorp submitted that having established that it was entitled to be joined on the basis of the Fixed Odds Challenge and having successfully defended that claim, it is entitled to the costs associated with that application and defence: Orrcon Operations Pty Ltd v Capital Steel & Pipe Pty Ltd (No 2) [2008] FCA 24 at [37]. I agree. 9 The costs orders will therefore be as follows: The Applicants pay the Third Respondent's costs of this proceeding associated with the Applicants' Fixed Odds Challenge (addressed in Section E of Sportsbet Pty Ltd v The State of Victoria [2011] FCA 961), including the Third Respondent's costs of its application to be joined as a respondent by Notice of Motion filed on 4 February 2011 (the Joinder Application). The Third Respondent pay half of the Applicants' costs of the proceeding incurred after 3 March 2011 (save in relation to the Applicants' costs incurred in respect of the Fixed Odds Challenge referred to above). There be no order as to the Applicants' costs of the Joinder Application. The First and Second Respondents pay the remainder of the Applicants' costs. 10 As a result of these orders, the successful parties (the Applicants) are entitled to their costs, except in relation to the Fixed Odds Challenge which formed the basis for the Joinder Application on which it was unsuccessful. In addition, Tabcorp pays its own costs before it was joined to the proceeding. In my view, those orders are appropriate. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 9 September 2011