Supreme Court New South Wales Medium Neutral Citation: Fletcher v Racing NSW [2019] NSWSC 358 Hearing dates: 27 and 28 March 2019 Date of orders: 09 April 2019 Decision date: 09 April 2019 Jurisdiction: Common Law Before: Lindsay J Decision: Orders made allowing for the determination of disputes about claims of privilege and rights of inspection arising from production of a mobile phone to the defendant's racing stewards by the plaintiff as a third party to a stewards' inquiry into the betting activities of persons not parties to these proceedings Catchwords: ASSOCIATIONS AND CLUBS – racing clubs and associations – rules and by-laws - Stewards' inquiry – Investigation in aid of inquiry – Direction to a third party to produce mobile phone for forensic examination – Limits on power – Procedures for working out competing rights and obligations GAMING AND WAGERING – racing, racecourses and totalisators – stewards and committees of race clubs - Stewards' inquiry – Investigation in aid of inquiry – Direction to a third party to produce mobile phone for forensic examination – Limits on power - Procedures for working out competing rights and obligations Legislation Cited: Court Suppression and Non Publication of Orders Act 2010 NSW Thoroughbred Racing Act 1996 NSW Totalizer Act 1997 NSW Cases Cited: AWB Ltd v Australian Securities and Investment Commission [2008] FCA 1877 Commissioner of the Police Service v Nirta [2002] 1 Qd R 364; [2001] Qsc 119. Fairfax Digital Media and New Zealand Pty Limited v Ibrahim [2012] 125 Fairfax Digital Media and New Zealand Pty Limited v Ibrahim [2012] NSWCA 125 at [46]. Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 Golden v V'landys [2016] NSWCA 300 JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 FLR 537 Mann v Carnell (1999) 201 CLR 1 McLean v Burns Philp Trustee Co. Pty Ltd (1985) 2 NSWLR 623 Nationwide News Pty Limited v Qaumi (2016) 93 NSWLR 384 Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 Palmer v Ayres (2017) 259 CLR 478 Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 26 NSWLR 711 Walton v Gardiner (1993) 177 CLR 378 Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014) JD Heydon, Cross on Evidence (11th Australian edition, 2017) Category: Principal judgment Parties: Plaintiff: Stephen Fletcher Defendant: Racing NSW ABN 86 281 604 417 Representation: Counsel: Plaintiff: AP Cheshire SC with S Jeliba Defendant: P Braham SC with A Bhasin Solicitors: Plaintiff: Cockburn & Co. Defendant: Pete Sweeney, General Counsel, Racing NSW File Number(s): 2019/00083380 Judgment INTRODUCTION 1. This judgment requires a review of the proper construction, and operation, of the regulatory powers of racing stewards (representing the defendant, Racing NSW) in the conduct of an investigation by the stewards, vis a vis a third party to the inquiry (the plaintiff, Mr Stephen Fletcher), in aid of an inquiry into the betting activities of two persons (Mr Nathan Snow and Mrs Sally Snow) who are not parties to the present proceedings. 2. The occasion for that review arises because: 1. in reliance upon rule AR 22 of the Australian Rules of Racing (given statutory force by sections 13 and 14 of the Thoroughbred Racing Act 1996 NSW), the Chairman of Stewards (on behalf of the defendant, a body corporate established by that Act) gave a direction to the plaintiff (a professional gambler by occupation) to produce his mobile phone to the stewards so that it could be forensically imaged as a means of enabling the stewards to access information on the phone. 2. the plaintiff complied with the stewards' direction insofar as he delivered his mobile phone into the possession of the stewards and, by providing to them his password for the phone, facilitated their imaging of the phone, and their accessing information on it, subject to his being allowed an opportunity to quarantine information on the phone in respect of which he anticipated asserting a claim for legal professional privilege. 3. having obtained legal advice shortly after production of his phone to the stewards, the plaintiff (by his solicitors) prevaricated about the extent to which he was cooperating with the stewards' inquiry, at one point recording that he had no choice but to consent to the defendant imaging his phone and using it given that his livelihood (as a professional gambler) was at stake whilst, at the same time, asserting that the defendant was acting without authority; he now asserts not only a claim to privilege, but an entitlement to deny the stewards' access to information on the phone about racing activities not directly relevant to their inquiry into the betting activities of the Snows. 4. by these proceedings the plaintiff challenges the validity of the direction that he hand over his mobile phone (which was returned to him before his summons was filed), and to have delivered up to him the forensic image of the phone which the defendant caused to be made. 5. alternatively, having done little since the commencement of these proceedings to particularise and prove his claim to legal professional privilege, the plaintiff seeks an opportunity to establish his claim for privilege beyond the opportunity which, in consultations between the parties' legal representatives before the commencement of proceedings, the defendant afforded him. 6. although the plaintiff is not himself a subject of the stewards' inquiry into the betting activities of the Snows, any misconduct by the Snows (by allegedly arranging for proscribed bets to be made at Totalizator Agency Board outlets through the agency of the plaintiff) might conceivably, objectively, operate as a factor leading to: 1. an inquiry by the stewards into the plaintiff's betting activities generally; or 2. a decision, adverse to his interests, such as a decision to call upon him to show cause why he should not be "warned off" from entering racecourses under the jurisdiction of the defendant. 1. There has been no suggestion in the conduct of these proceedings that the plaintiff has, or may have, himself committed an offence of any description, whether against the Rules of Racing or otherwise. This is not a topic expressly traversed by either party. In fairness to the plaintiff that fact should be recorded. The defendant, for its part, has maintained that its inquiry into the betting activities of the Snows is not directed against the plaintiff, though information presently available to the defendant supports an inference that (contrary to their entitlements) Mr and Mrs Snow may have placed proscribed bets with the TAB through the agency of the plaintiff. 2. The plaintiff's exposure to a risk of being "warned off" provides one explanation for his increasing resistance to unqualified co-operation with the stewards' inquiry into the betting activities of the Snows. 3. Another is that he is presently the subject of criminal charges pending in the District Court of NSW which, although unrelated to the stewards' inquiry into the betting activities of the Snows, do relate to earlier conduct on his part as a professional gambler. 4. His solicitors having purported (after his production of his phone to the stewards) to reserve any "right to privilege against self-incrimination" he might be entitled to assert, a larger concern for the plaintiff appears to be that, if the stewards acquire knowledge of his activities beyond dealings with the Snows by their examination of his phone, they might, by reason of that knowledge, be motivated to take action against him that would not have been taken had they not directed him to hand over his phone for the purpose of their inquiry into the Snows. 5. The defendant has consistently maintained that the plaintiff should be allowed a reasonable opportunity to particularise and prove any entitlement he may have to legal professional privilege. It has also consistently disclaimed any interest in communications between the plaintiff and his lawyers and communications relating to the criminal charges pending against him. 6. The plaintiff's anxiety about the possibility that the stewards' access to information on his phone might lead them to focus their attention on him (independently of their inquiry into the betting activities of the Snows) led him to obtain from a duty judge of this Court, shortly after the commencement of these proceedings, interlocutory injunctions restraining the defendant from accessing information taken from his phone, or communicating any such information to others, without his express consent. 7. The plaintiff's anxiety about his interests is met by a countervailing concern on the part of the defendant about public interest imperatives associated with a need to advance its inquiry into the betting activities of the Snows. 8. The competing interests of the parties clash at the point at which: (a) the plaintiff seeks to limit the defendant's use of information on his mobile phone to information "directly" relevant to its present inquiry into the betting activities of the Snows, and to compel the defendant to disregard any knowledge the stewards might acquire about his broader racing activities from their examination of the phone; and (b) the defendant, whilst confirming that the focus of its present inquiry is on the betting activities of the Snows (not any broader activities of the plaintiff), refuses to bind itself to limit the scope of its current inquiry or to give an undertaking that it will disregard any knowledge acquired from the plaintiff's phone about the plaintiff's gambling activities not directly related to the betting activities of the Snows. 9. The plaintiff concedes that, in directing him to produce his mobile phone for forensic examination, the stewards had reasonable grounds for believing that the phone would contain information material to their inquiry into the betting activities of the Snows. He also concedes that that inquiry is a bona fide inquiry, not one advanced for an ulterior purpose of inquiring into his activities. 10. Such concessions are properly made. The inquiry into the betting activities of the Snows has its origin in a disclosure made by Mr Snow to the defendant on or about 7 January 2019, when he made an application to the defendant for a license to act as an authorised representative of an approved promoter of a racing syndicate. 11. An internal report of the defendant records the following: "When questioned regarding [a transaction recorded in his bank records as an amount of $10,000 deposited into his account by the plaintiff], Mr Snow stated that he is not allowed to bet in a TAB because his wife works in the TAB, therefore, he contacted [the plaintiff] , who has runners at TABs to put bets on for him. [A Racing NSW official] asked Mr Snow whether it was one bet or multiple bets which resulted in $10,000 being deposited into his account. Mr Snow could not recall exactly, but said it could have been multiple bets.… Whilst Mr Snow was forthright in his answers at the interview [with Racing NSW], it appears that he is betting indirectly through another person with the TAB when not permitted to do so…". 1. At the time the stewards (on 5 March 2019) directed the plaintiff to produce his mobile phone for forensic examination they had available to them, not only Mr Snow's revelation of bets placed through the agency of the plaintiff, but also images taken from Mr Snow's mobile phone on 26 January 2019. Those images include images which support an inference to the effect that Mr and Mrs Snow had been in regular communication with the plaintiff in relation to bets which they, jointly and severally, were placing through the plaintiff, including bets laid at TAB outlets. 2. As the Chairman of Stewards explained in oral evidence given on the hearing of the summons, his experience of the racing industry is that communications about betting activities are commonly recorded on mobile phones, with images routinely taken of instructions to lay a bet and the terms upon which a bet has been laid. For that reason, a mobile phone is commonly primary evidence on an inquiry into betting activities. 3. None of this is disputed by the plaintiff. Nor is it disputed that, when the stewards uncontroversially accessed information taken from his phone relating to communications between him and the Snows, the data found by the stewards could reasonably support an inference that the Snows were laying bets with him or with him acting as their agent. 4. Leaving aside concerns about legal professional privilege (which the defendant has always been prepared to accommodate), the core concern of the plaintiff is that the stewards might be "fishing" for information about his broader activities so as to take action against him, or that they might incidentally obtain information about his broader activities which might be used by the defendant to his prejudice. 5. Having had the benefit of evidence given by the Chairman of Stewards (including cross examination of him by the plaintiff's senior counsel) I accept his assurance that the plaintiff is not a target of the stewards' inquiry into the betting activities of the Snows. I note, equally, that the defendant, understandably, declines to give any undertaking to constrain the future course of its investigations. THE REAL QUESTIONS IN DISPUTE 1. The real questions in dispute in these proceedings are: 1. QUESTION ONE: Whether the direction given by the Chairman of Stewards to the plaintiff on 5 March 2019 was, in form or substance, outside the power conferred on the stewards by AR 22(1)(d) to require production and forensic examination of the plaintiff's mobile phone. 2. QUESTION TWO: Whether, irrespective of whether the direction was invalid, the plaintiff consented to the stewards taking possession of his phone, forensically imaging it and using information thereby available. 3. QUESTION THREE: Whether any use to which information acquired from the plaintiff's mobile phone might be put must be limited to the stewards' inquiry into the betting activities of the Snows. 4. QUESTION FOUR: Whether the defendant is entitled to retain information acquired from the plaintiff's phone notwithstanding that it may relate to racing activities of the plaintiff unrelated to betting activities of the Snows. 5. QUESTION FIVE: Whether, as a professional gambler who routinely causes bets to be laid on horse racing in NSW (including bets laid through TAB outlets), the plaintiff was, at the time given the direction, a "person associated with racing" so as to be bound, by statute or contract, to comply with the stewards' direction that he produce his phone. 6. QUESTION SIX: If the plaintiff is unsuccessful in his challenge to the validity of the stewards' direction, whether he should be given any (and, if so, what) further time to identify mobile phone data said to be the subject of a claim of privilege. 1. Because the plaintiff's criminal trial is scheduled for later (in September) this year, a final question for the Court's consideration is whether suppression orders obtained by the plaintiff at the time he obtained interlocutory injunctive relief at the commencement of these proceedings should be continued and, if so, upon what terms. THE STEWARDS' "DIRECTION" THE SUBJECT OF CHALLENGE 1. On 5 March 2019 the defendant (by its Chairman of Stewards), ostensibly relying upon rule AR 22(1)(d) of the Australian Rules of Racing, gave to the plaintiff a direction to produce his mobile phone to the Chairman of Stewards. 2. The Australian Rules of Racing are a set of rules adopted by the Australian Conference of Principal Racing Clubs. They are not, in an ordinary sense, subordinate legislation. Nevertheless, insofar as they are applicable to any person (essentially a person who participates in thoroughbred horseracing in NSW), they have legislative force by virtue of the Thoroughbred Racing Act 1996 NSW, sections 13(1) and 14. 3. There is no regulatory requirement that a "direction" given under AR 22(1)(d) be in writing or, if in writing, take a prescribed form. 4. The "direction" given to the plaintiff took the form of a letter addressed to the plaintiff by the defendant (signed by the Chairman of Stewards) delivered by hand by the Chairman of Stewards in the company of the defendant's Chief Investigator. 5. Omitting the date (5 March 2019) and the plaintiff's address, the letter was in the following terms (with emphasis added): "Dear Mr Fletcher, Racing NSW Stewards Inquiry – Betting Activities Racing NSW is the peak body for thoroughbred horse racing in NSW and its functions under the Thoroughbred Racing Act 1996 (NSW) are to control, supervise and regulate the thoroughbred racing industry in New South Wales. Its responsibilities include protecting the image, interests and integrity of racing. In this regard Racing NSW Stewards have opened an inquiry into the betting activities of Mr Nathan Snow and Mrs Sally Snow. This letter contains a number of directions by, and requirements of, the Racing NSW Stewards for you to produce your mobile telephone for the purpose of the inquiry opened by Racing NSW into the betting activities of Mr and Mrs Snow. Racing NSW requires you to adhere to the following directions set out in this letter and any further directions and/or requirements in accordance with the Rules, as considered appropriate. 1. Direction to produce mobile telephone(s) The Stewards direct and, pursuant to AR 22(1)(d), require, you to produce immediately upon receipt of this letter your mobile telephone (or if you have more than one mobile telephone, all telephones) to Racing NSW Chairman of Stewards Mr Marc Van Gestel. Upon production, the Stewards will facilitate the imaging of your telephone(s) by a third party forensic image provider. The information obtained through this process will be used by the Stewards to assist with our investigation. Information obtained that is not relevant to the investigation will be treated as confidential. 2. Requirement to attend and inquiry before Racing NSW Stewards Once all relevant data has been imaged and examined by Racing NSW Stewards you may be required to attend a Stewards inquiry at a time and date to be fixed. 3. Consequences of failure to comply with directions For the avoidance of doubt and for completeness, you are reminded of the following offences which, amongst others, relate to inquiries under the Rules: a. pursuant to AR 232(b), if you fail to comply with any direction or requirement (or order) of the Stewards contained in this letter, it is an offence and you may be penalised. b. pursuant to AR232(h), if you refuse or fail to attend or give such evidence as directed at any inquiry when requested to do so by the Stewards, it is an offence and you may be penalised. c. pursuant to AR 232(i), if you give at any inquiry any evidence which is false or misleading, it is an offence and you may be penalised; and d. pursuant to AR 229(1)(h), if you make any false or misleading statement or declaration in respect of any matter in connection with the administration or control of racing, it is an offence and you may be penalised. e. pursuant to AR16(a) you may be required to show cause by Racing NSW as to why you should not be warned off from racecourses. Yours sincerely Racing NSW Marc Van Gestel Chairman of Stewards General Manager – Integrity" 1. Nothing of what passed orally between the plaintiff and the defendant's representatives, at the time this letter was handed to the plaintiff personally, was inconsistent with the terms of the letter. 2. Each of the plaintiff, the Chairman of Stewards and the Chief Investigator swore an affidavit, and was cross examined, in these proceedings about what was said between them on this occasion. Differences of emphasis reflect each person's different perspective. There is otherwise no substantial discrepancy. 3. The defendant's representatives invited the plaintiff to co-operate with the defendant and, having been told by the plaintiff that he was concerned about "legally sensitive information" concerning his criminal proceedings on his phone, assured him that, initially, they would be the only people who would look at data recovered from the phone and that they would be mindful of any legally privileged information. 4. A fair inference from the whole of the evidence is that, in response to the defendant's letter and relying upon the assurances given to him by the defendant's representatives, the plaintiff consented to his phone being forensically imaged and used by the stewards in the manner and for the purpose set forth in the defendant's letter. 5. The plaintiff did not at that time dispute that, as a professional gambler actively engaged in betting on horse races in NSW, he was subject to the defendant's "Rules of Racing", which comprise the "Australian Rules of Racing" and "Local Rules of Racing". Nor was he called upon to make a concession about that. 6. He was conscious, in any event, that, were he not to co-operate with the stewards, the defendant might call upon him to show cause why he should not be "warned off" from racecourses. 7. The defendant's power to "warn off" a person is not, in terms, conditioned upon a breach of any rule or a failure to comply with any direction. A "warning off" operates not so much as a "penalty" for misconduct as a decision designed to protect the racing industry. 8. Under the heading "disciplinary action", AR16(a) provides that "[without limiting any other [powers of the defendant, the defendant has the following [power] in relation to disciplining and/or penalising a person:… to warn off any person whose presence on a racecourse or involvement in racing is, in the opinion of [the defendant], not desirable". A similar power, in substantially the same terms, can be found in LR6. 9. In Golden V'landys [2016] NSWCA 300 at [140] the Court of Appeal spoke of the power to warn off in the following terms (with editorial adaptation): "It may be accepted that the power to warn off under LR 6 can only be used for the purpose of controlling, supervising or regulating horseriding (as provided in section 13(b) of the Thoroughbred Racing Act) or for the control and supervision of racing (as provided in AR7). It is quite a different thing, however, to conclude that there is an implied limit on the power requiring [the defendant or a delegate of the defendant] to be satisfied that [a person liable to be warned off] intended to attend a racecourse and [to engage in offensive behaviour] there. Further, there is no reason to think that [the defendant's] power to 'warn off' is limited to offensive behaviour 'connected to horseracing' or occurring 'on a racecourse'". 1. A person warned off by the defendant is subject to the same restrictions or consequences applicable to a person disqualified in accordance with the Rules: AR265. Those "restrictions or consequences" generally include a prohibition on the disqualified person betting with a licensed wagering operator in connection with any thoroughbred race meeting held in Australia: AR263(1)(k). That prohibition is reinforced by AR264, which provides that "[a] bookmaker must not bet with a disqualified person, whether in person, online, by telephone, or using any other device or medium." 2. Whether or not the plaintiff was technically bound to comply with the defendant's direction to hand over his mobile phone (a question of controversy), exposure to a risk of being warned off was a powerful inducement to him to co-operate with the defendant. It is, of itself, sufficient to explain his co-operation. THE LEGISLATIVE FRAMEWORK 1. The questions for determination in these proceedings must be determined with due regard to the legislation, and the Rules of Racing given legislative backing, governing the functions and powers of the defendant and the stewards acting as delegates of the defendant. 2. The questions for determination focus on relatively few provisions of the Thoroughbred Racing Act 1996 NSW (particularly, section 13(1)(b) and (e) and section 14(1)) and the Australian Rules of Racing (particularly AR 22(1)(d)). 3. However those provisions must be viewed on a canvas broad enough to demonstrate: (a) the nature and broad scope of the functions and powers of the defendant in its control of thoroughbred horse racing in NSW; and (b) the distinctive pattern of investigative and adjudicative functions entrusted to racing stewards as protectors of the integrity and reputation of racing. Application of the Rules of Racing 1. The long title to the Thoroughbred Racing Act 1996 is "An act to make provision for the establishment, management and functions of Racing New South Wales as the representative body to control thoroughbred horse racing in the State; and for other purposes." 2. Section 3 of the Act defines, inter alia, the following terms: "Australian Rules of Racing means the Australian rules of racing as adopted by the Australian conference of principal racing clubs". Rules of racing means the rules for the time being governing and relating to horseracing under the control of Racing NSW (being an amalgamation of the Australian Rules of Racing and the Local Rules of Racing NSW, together with the regulations made under those rules)". 1. The title page of the defendant's publication entitled "Rules of Racing of Racing NSW (as amended 1 March 2019)" includes the following introductory statements: "The Australian Rules of Racing and the Local Rules (including the Rules of Betting), are to be read, interpreted and construed together, and as so combined shall be known as 'The Rules of Racing NSW'. Any person who takes part in any matter coming within the Rules in this book contained thereby agrees with Racing NSW to be bound by them". 1. Similar declarations about the consensual force of the Rules of Racing appear in the text of the Rules themselves. 2. LR3 provides that "[any] person who takes part in any matter coming within the Rules of Racing, or to which the said rules apply, thereby agrees to be bound by them". 3. AR3, read with AR2(a), is to the same effect. 4. Rule AR2(a) defines the expression "Principal Racing Authority (PRA)" to mean "a body (statutory or otherwise) recognised as a principal racing authority under Racing Australia's Constitution, that has the control and general supervision of racing within a State or Territory, and comprises: (a) Racing New South Wales in New South Wales…." 5. Part 1 Division 3 of the Australian Rules of Racing includes the following rules: "AR3 Application of these Australian rules. Any person who takes part in any matter or race meeting coming within these Australian rules agrees with Racing Australia, and each PRA [that is, the defendant and its interstate counterparts] to be bound by and comply with them.… AR5 Breaches of these Australian rules and their consequences. (1) A person breaches these Australian rules if: a) a rule expressly provides as such; b) the person is required to do something under a rule but does not do it; or c) the person is prohibited from doing something under a rule but does it. (2) If a person breaches any of these Australian rules the person may be penalised, regardless of whether or not the rule expressly provides that the person may be penalised. AR6 Exercise of rights, powers or authorities to be final and conclusive. Any act done, or decision made by a PRA or by the Stewards in exercise, or intended exercise of any right, power, function or authority conferred by or under the Rules is, except where otherwise provided in the Rules, final and conclusive." 1. In short, any person who participates in racing activities governed by the Rules of Racing may be taken to have agreed to be bound by those Rules, including regulatory decisions made by the defendant and its stewards in exercise, or intended exercise, of any right, power, function or authority conferred by or under the Rules. 2. Given that the stewards' inquiry into the betting activities of Mr and Mrs Snow focusses on the possibility that proscribed bets were made by Mr and Mrs Snow at TAB outlets through the agency of the plaintiff, the defendant draws attention to rule 1.1.4 of the Totalizator Rules (reinforced by section 57(2) of the Totalizer Act 1997 NSW) which is in the following terms (with emphasis added): "1.1.4 Transactions conducted at or through a TAB outlet (including via a betting account) are subject where appropriate to the rules of racing, including the provisions in respect to the entry, acceptance, bracketing, withdrawal or disqualification of persons, animals or teams or objects, to the running of races, the conduct of race meetings, the powers of the stewards (including but not limited to the powers of the stewards to request the disclosure of personal information pertaining to accounts or transactions) or any other tribunal, and to the procedures governing the operation of the totalizators". 1. Section 57(2) of the Totalizator Act 1997 provides that the TAB's rules, as in force when a bet is made, form part of the contract between a TAB licensee and an "investor" who places a bet. 2. Whilst rule 1.1.4 reinforces AR 3 and LR 3, and a general understanding of how the racing industry operates, it does nothing to assist a determination of the current proceedings as presently constituted. No representative of TAB is a party to these proceedings. Attention remains focussed on AR 3 and LR 3. 3. The Rules of Racing are rules to which participants in racing become contractually bound; but they are also given statutory consequences: NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 at [35]; Golden v V'landys [2016] NSWCA 300 at [60]-[61]. 4. It is not self evident that an unlicensed person such as the plaintiff can, for all purposes, be said to be bound by the Rules of Racing even when not on a racecourse or engaging directly, on racing business, with a person bound by the Rules of Racing. 5. The operative force (if any) of the Rules of Racing must be assessed in the context of a particular factual setting. The Rules do not bind the public at large by force only of their promulgation. 6. It is for that reason that the power of the defendant to "warn off" a person is a regulatory power of profound significance. On the one hand, an unlicensed person may be well within his or her rights in disclaiming an obligation to submit to the Rules of Racing or the regulatory activities of stewards. Equally, on the other hand, a person's insistence upon an entitlement to stand outside the Rules of Racing, and to withhold co-operation from the stewards, may justify a decision by the defendant that the person be "warned off", with a consequence that he or she must be ostracised by the racing community at the risk, to them, of disciplinary action. The functions and powers of Racing NSW 1. Section 3 of the Thoroughbred Racing Act 1996 defines "function" as including "power, authority or duty". 2. So far as is material, sections 13 and 14 of the Thoroughbred Racing Act are in the following terms (with emphasis added): "13. Functions of Racing NSW (1) Racing NSW has the following functions: (a) all the functions of the principal club for New South Wales and committee of the principal club for New South Wales under the Australian Rules of Racing, (b) to control, supervise and regulate horse racing in the State, (b1) such functions in relation to the business, economic development and strategic development of the horse racing industry in the State as are conferred or imposed by this Act, (c) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the horse racing industry in the State and the protection of the public interest as it relates to the horse racing industry, (d) functions with respect to the insuring of participants in the horse racing industry, being functions of the kind exercised by the AJC on the commencement of this section, and such other functions with respect to insurance in the horse racing industry as may be prescribed by the regulations, (e) such functions as may be conferred or imposed on Racing NSW by or under the Australian Rules of Racing or any other Act, (f) such functions with respect to horse racing in New South Wales as may be prescribed by the regulations. (2) The functions of Racing NSW are not limited by the Australian Rules of Racing and are to be exercised independently of Racing Australia Limited…. 14. Powers of Racing NSW (1) Racing NSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions. (2) Without limiting subsection (1), Racing NSW has power to do the following: (a) investigate and report on proposals for the construction of new racecourses, and inspect new racecourses or alterations or renovations to existing racecourses, (b) register or licence, or refuse to register or licence, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, stablehand, bookmaker, bookmaker's clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period, (c) supervise the activities of race clubs, persons licensed by Racing NSW and all other persons engaged in or associated with racing, (d) inquire into and deal with any matter relating to racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards, (e) allocate to registered race clubs the dates on which they may conduct race meetings, (f) direct and supervise the dissolution of a race club that ceases to be registered by Racing NSW, (g) appoint an administrator to conduct the affairs of a race club, (h) register and identify galloping horses, (i) disqualify a horse from participating in a race, (j) exclude from participating in a race a horse not registered under the Rules of Racing, (k) prohibit a person from attending at or taking part in a race meeting, (l) impose a penalty on a person licensed by it or on an owner of a horse for a contravention of the Rules of Racing, (m) impose fees for registration of a person or horse, (n) require registered race clubs to pay to it such fees and charges (including fees for registration of a race club) as are required for the proper performance of its functions, calculated on the basis of criteria notified to race clubs by Racing NSW, (o) consult, join, affiliate and maintain liaison with other associations or bodies, whether in the State or elsewhere, concerned with the breeding or racing of galloping horses, (p) enter into contracts, (q) acquire, hold, take or lease and dispose of real and personal property whether in its own right or as trustee, (r) borrow money, (s) order an audit of the books and accounts of a race club by an auditor who is a registered company auditor nominated by Racing NSW, (t) scrutinise the constitutions of race clubs to ensure they conform to any applicable Act and the Rules of Racing and that they clearly and concisely express the needs and desires of the clubs concerned and of racing generally, (u) publish material, including periodical publications, to inform and keep informed the public concerning matters relating to racing, whether in the State or elsewhere, (v) undertake research and investigation into all aspects of the breeding of horses and of racing generally, (w) take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions." 1. AR 15 reflects section 14(2)(d) of the Thoroughbred Racing Act. It is in the following terms (with emphasis added): "AR 15 Investigations, inquiries and hearings Without limiting any other PRA powers, a PRA has the following powers in relation to the facilitation of investigations and inquiries and the determination of matters arising under the Rules: (a) to investigate, inquire into and deal with any matter relating to racing or the running of any horse on any course, and to refer and/or delegate any such matter to the Stewards or others for investigation, inquiry, report and/or for hearing and determination; (b) to investigate alleged breaches of any Code of Practice; (c) to appoint persons to undertake investigations at the direction of the PRA and those investigators will have and may exercise the powers, perform the functions and carry out the duties conferred on Stewards by AR20(f), AR22(1)(d), (h), (i), (k) and (l) and AR 22(2); (d) to appoint persons as the PRA thinks fit to hear and adjudicate upon any matter or charge brought by a PRA or the Stewards relating to a breach of the Rules, and to delegate to any appointee so much of its powers as would enable the appointee to discharge the responsibilities of the appointment; (e) to hear and decide appeals as provided for in the Rules or by law; and (f) to appoint persons as the PRA thinks fit to hear and adjudicate upon any matter, charge, application or appeal arising under the Rules, and to delegate to any appointee so much of its powers as would enable the appointee to discharge the responsibilities of the appointment. 1. The Thoroughbred Racing Act and the Australian Rules of Racing also contain a multitude of provisions governing the defendant's "licensing functions", which provisions are grounded upon prohibitions of unlicensed conduct and powers to set standards. The Role and Powers of Stewards 1. Part 3 of the Australian Rules of Racing (entitled "Role & Powers of Stewards") contains two Divisions. 2. In Division 1 (entitled "Source of Stewards' Powers"), AR19(a) provides, in effect, that in New South Wales, stewards' powers and functions are conferred on them solely through delegation by the defendant. 3. AR20, AR 22, and AR24 are part of Division 2. With emphasis added, those rules are in the following terms: "AR 20 General powers The Stewards have the following powers: (a) to regulate and control, investigate, inquire into, hear and determine matters relating to the conduct of all officials, licensed persons or registered persons, persons connected with a horse, persons attending a racecourse, and any other person connected with racing; (b) to make or vary any of the arrangements for the conduct of a race meeting under their control. (c) to take (or cause the taking of) a sample from a horse and to make (or cause to be made) any testing or analysis to determine whether any prohibited substance is present in the system of the horse; (d) to prohibit any horse from starting in a race; (e) to refuse or reject the nomination of any horse at any time for any period and/or until that horse has satisfactorily participated in an official trial or a jump-out, or passed any required veterinary examination; (f) to enter upon and control all lands, buildings and other structures or places used for the purposes of a race meeting, and to expel or exclude any person from the same; (g) to order the removal of any shoes, racing plates, equipment or gear from a horse which are not approved or are in their opinion unsuitable, unsafe or ineffective. (h) to inquire at any time into the running of any horse within the jurisdiction of the same PRA; (i) to hear and determine any claim by a rider that a nominator or trainer of a horse refused to honour a riding engagement, and to make an order regarding that, including in relation to any compensation they think fit in the circumstances; and (j) to exercise any powers or perform any functions conferred on them by the relevant PRA and/or through any valid government statute or legislative instrument which confers powers or functions on them (as applicable)… AR 22 Investigations and inquiries (1) Without limiting any other Stewards' powers, the Stewards have the following powers in relation to investigations and inquiries: (a) to investigate and/or inquire into any matter in connection with racing, including without limitation: (i) any matter in connection with any race meeting; and (ii) any incident or occurrence in connection with any official trial, jump-out, trackwork, or training facility. (b) to hear and make a determination in relation to any matter in connection with racing, including without limitation. (i) any matter in connection with any race meeting; and (ii) any incident or occurrence in connection with any official trial, jump-out, trackwork, or training facility. (c) to take any action the Stewards deem necessary in respect of any horse involved in any investigation or inquiry conducted under sub rule (1)(a) or (b); (d) to require production and take possession of and examine (by any means) any mobile phones, computers, tablets, other electronic devices, books, documents and records (including telephone or financial records) in relation to any race meeting and/or any investigation, inquiry, hearing or proceeding; (e) to order the examination of any horse, including to determine its age or identity; (f) to take possession of any horse, whether dead or alive, in order to conduct whatever tests and/or examinations the Stewards consider necessary; (g) to take (or cause to be taken) any sample from any horse and perform (or require to be performed) any testing or analysis of that sample to determine whether any prohibited substance is in the system of the horse; (h) to take (or cause to be taken) any sample from any rider before or after any race, official trial, jump-out or trackwork; (i) to take (or cause to be taken) any sample from any horse handler before or after handling any horse at any race meeting, official trial, jump-out or trackwork, where a Steward reasonably suspects that the horse handler is affected by a banned substance under AR 137(1). (j) to arrange or facilitate any test to determine whether any prohibited substance or banned substance is in a sample. (k) to search any licensed person or any gear or equipment and to take possession of anything the Stewards believe could provide evidence of a breach of the Rules; (l) at any time to enter the premises occupied by or under the control of a licensed person and used in any manner relating to any licence to: (i) inspect and search the premises; (ii) search any licensed person or registered person on the premises; (iii) examine any horse, take possession of it and cause that horse to be: (A) removed from the premises and be detained; or (B) detained at or within the premises, for a period and on terms the Stewards consider necessary; and (iv) examine and/or take possession of anything located on or in the premises and retain it for a period the Stewards consider necessary. (2) Stewards who enter premises under powers in these Australian Rules may bring with them persons or items they consider necessary to assist in the exercise of their powers, performance of their functions or carrying out of their duties. (3) In relation to the powers of entry of premises under these Australian Rules, the onus of proving that the premises are not being used in any manner relating to any licence is on the licensed person who has the occupation or control of the premises, and the use of them… AR 24 Disciplinary action Without limiting any other Stewards' powers, the Stewards have the following powers in relation to disciplining and/or penalising: (a) to penalise any person who breaches the Rules; and (b) to publish any penalty or restriction imposed or any decision made in the exercise of their powers, performance of their functions or carrying out of their duties…." 1. The Local Rules of Racing make provision (in rule LR 10) for the appointment of Stewards including a Chairman of Stewards. 2. LR 12 (under the heading "Powers of Stewards") provides, inter alia, that: 1. the Chairman of Stewards may authorise a steward or stewards to exercise all the powers vested in the stewards by the Rules to inquire into, adjudicate upon, and deal with any matter or incident relating to racing: LR 12(6). 2. the stewards, when exercising the powers of inquiry and adjudication conferred upon them under the Rules are authorised: (i) to inquire into the conduct of all officials and licensed persons, persons attendant on or connected with a horse, persons attending a racecourse, all other persons bound by the Rules and any matter or incident relating to racing; (ii) to lay charges against any person committing a breach of the Rules; and (iii) to adjudicate upon any such charges including but not limited to penalising any person committing a breach of the Rules: LR12(7). 1. The powers of the stewards are not limited to those here extracted. Sundry powers are found interwoven throughout the fabric of the Rules of Racing, including both the Australian Rules of Racing and the Local Rules. 2. Although some decisions of the stewards are expressed by the Rules to be "final and conclusive" the Rules of Racing make provision for appeals from some decisions. "Investigations", "Inquiries" and other processes 1. Scattered throughout the Australian Rules of Racing are references to "investigations" and "inquiries", sometimes accompanied by a reference to other processes such as a "hearing". Similar terminology can be found in the Thoroughbred Racing Act. 2. Nowhere are the expressions "investigation" and "inquiry" expressly defined. Their meaning depends upon context. 3. The evidence of the defendant's Chief of Stewards is that, according to custom in the racing industry, the commencement of an inquiry can be attended by complete informality. An example of this occurs when a steward interrogates a jockey about suspicious riding in the course of a race: a steward's inquiry might begin and end with such an interrogation. There is no routine procedure for formal documentation of the commencement of an inquiry. One does not find the formality that attends initiating process in court proceedings or terms of reference for a Royal Commission. 4. In construction of the Thoroughbred Racing Act and the Rules of Racing the Court may, if not must, have regard to the context of custom within which the racing community operates: DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014), paragraphs [4.20]-[4.21]. CONSIDERATION 1. The outcome of these proceedings depends upon consideration, jointly and severally, of the six questions identified as the real questions in dispute. Answers to those questions have a tendency to overlap. 2. In addressing them it is as well to bear in mind three potentially interwoven concepts. 3. The first is the concept of "power to act". This gives rise, inter alia, to two questions: (a) whether the defendant, by its stewards, had power to give the direction given to the plaintiff to hand over his mobile phone; and (b) whether they have power to retain and, if they choose, to act upon information about racing acquired from the plaintiff's phone whether or not it relates to the betting activities of Mr and Mrs Snow. 4. The second concept concerns "obligation to comply" with the direction of the stewards. This involves a question whether the plaintiff had an obligation to comply with the stewards' direction that he produce his phone and to submit to the defendant's use of information acquired from it. 5. The third concept concerns "procedures to enforce" the stewards' direction. This involves questions about whether, assuming non-compliance by the plaintiff with the stewards' direction, the Rules of Racing provide a procedure, or procedures, for resolving tensions between the first and second concepts. 6. There is no need, in these reasons for judgment, to explore in detail the availability of "procedures to enforce" the stewards' direction within the framework of the Rules of Racing, except in one important respect. 7. In performance of their functions, the stewards at all times have a duty to act fairly, the nature and content of which depends upon the nature of the function being exercised and the circumstances of the particular case. 8. They have an over-arching obligation not to act for an improper purpose, oppressively or otherwise in abuse of their powers or due process: Walton v Gardiner (1993) 177 CLR 378 at 392-396. Although here characterised as "a duty to act fairly", the obligation not to act in abuse of power or due process is, more accurately, a summary of occasions upon which a court may intervene if a decision-maker fails to act properly in performance of a defined function. 9. However, whether the stewards' duty to act fairly is properly characterised as a duty to observe the principles of procedural fairness at the investigatory stage of their decision making processes is doubtful. At that stage, their powers are more akin to those of a policeman: R v Brewer; ex parte Renzella [1973] VR 375 at 380; Hall v NSW Trotting Club [1977] 1 NSWLR 378 at 387C. 10. If, however, they decide to charge a person with an offence or to set in train procedures for a person to be warned off (an adjudicative stage of decision making) then, save to the extent displaced by the Rules of Racing, the principles of procedural fairness govern their decision making: R v Brewer [1973] VR 375; Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378; NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242. In practical terms, in the context of the Rules of Racing, this generally requires that they give proper notice of a proposed decision to the person potentially affected adversely by it; that they allow that person a reasonable opportunity to be heard; and that, until that time, they remain open to persuasion of the affected person's case despite the fact that they may be called upon by the Rules of Racing to act as judge, jury, prosecutor and witness in a single cause. 11. In the present case, the Chairman of Stewards was exercising an investigative function, not an adjudicative one. He acted reasonably, on reasonable grounds, in good faith, within power and without oppression. He did not breach any duty of fairness, however formulated. 12. Any perception in the plaintiff that he was being treated "unfairly" focuses attention on the fact that, although he voluntarily handed over his phone to the Chairman of Stewards, he felt constrained to do so by the possibility that, if he did not do so, he could be called upon to show cause why he should not be "warned off". 13. That fact, alone, does not taint the conduct of the Chairman of Stewards. He was within his rights, if not obliged, to draw to the plaintiff's attention a possible consequence of a failure to co-operate with the stewards. He did so in a manner that was not overbearing. Nor was the will of the plaintiff overborne. 14. The plaintiff would have been within his rights to decline to hand over his phone and to prepare himself for such, if any, consequences that might flow from that decision. As it happens, consulting his own interests, he chose to hand over his phone. 15. This being the case, it is not necessary to dwell further on the availability of "procedures to enforce" the stewards' direction. QUESTION 1 : Whether the direction given by the Chairman of Stewards to the Plaintiff on 5 March 2019 was, in form or substance, outside the power conferred on the Stewards by AR 22(1)(d) to require production and forensic examination of the Plaintiff's mobile phone 1. So far as concerns the issue of formal validity, this question requires the Court to consider whether the terms of the direction reflect, and are consistent with, the text of AR 22(1)(d). 2. So far as concerns the issue of substantive validity, the question requires consideration of whether the direction given to the plaintiff was given for an improper (that is, an ulterior or collateral) purpose or was otherwise an abuse of power. 3. Formal Validity. In my opinion, the direction given to the plaintiff was valid in form: 1. It identified the chattel required to be produced; namely, the plaintiff's mobile phone(s). 2. It identified the purpose for which the plaintiff's mobile phone was required; namely, to be forensically imaged so as to provide information to the stewards to be used to assist their investigation in aid of an inquiry into the betting activities of Mr and Mrs Snow. 3. It identified the nature of the authority relied upon by the stewards; namely: 1. the Thoroughbred Racing Act; and 2. AR 22(1)(d) of the Australian Rules of Racing. 1. It grounded the direction on the defendant's functions under the Thoroughbred Racing Act "to control, supervise and regulate the thoroughbred racing industry in New South Wales", with responsibilities that include "protecting the image, interests and integrity of racing". 2. Although directed specifically to a requirement of the stewards that the plaintiff produce his mobile phone for the purpose of the inquiry opened by the defendant into the betting activities of Mr and Mrs Snow, it also recorded a requirement of the defendant that the plaintiff adhere to "any further directions and/or requirements in accordance with the Rules [of Racing], as considered appropriate" 3. In a form consistent with the Thoroughbred Racing Act and the Australian Rules of Racing, it informed the plaintiff, with reasonable certainty, of what was required of him if he was to avoid (inter alia) a requirement that he show cause as to why he should not be warned off from racecourses. 4. Contrary to a submission on behalf of the plaintiff, AR 22(1)(d) should not be read down by reference to either AR 22(1)(k) or AR 22(1)(l). The fact that the stewards have a power of search and seizure and a power to enter premises does not deny to them an independent power to require production, to take possession of and to examine chattels of particular types. This construction is reinforced by the introductory words of AR22(1) – "without limiting any other stewards' powers" – which should be read distributively in relation to the several paragraphs of AR 22(1) as well as with reference to powers found in other provisions of the Thoroughbred Racing Act and the Rules of Racing. 1. It must be remembered that the direction given to the plaintiff was given to him, in person, as a person who was familiar with the way the racing industry operates. He was familiar with the nature of the work undertaken by racing stewards and he was, specifically, aware of the nature of a "warning off" and its implications for him as a professional gambler. In reading the direction given to him he was able to engage, and did engage, with the Chairman of Stewards and the Chief Investigator to aid his understanding of what was required of him. 2. In my opinion, the formal validity of the direction given to the plaintiff did not require specification of consequences of a failure to comply with a direction. On the other hand, specification of such consequences did not detract from the character, or efficacy, of the direction given. 3. Contrary to submissions on behalf of the plaintiff, nothing turns upon the language used in paragraph 3(a) of the direction, more emphatic than the language used in subsequent sub paragraphs. To say that one "is" guilty of an offence if one "fails to comply" with a direction is not substantially different from language which suggests that, if one does or does not act in a particular way, one "may be penalised"; use of the emphatic expression "is an offence" is conditioned upon an assumption of a "failure to comply", a concept that presupposes a duty to comply. The description, in paragraph 3(e), of a "warning off" as "an offence" is not strictly accurate; but neither is it misleading in any real way. Any reader of the direction (including the plaintiff), warned that he or she might be required to show cause as to why he or she should not be warned off from racecourses, would have had brought home to him or her a "consequence" of a failure to comply with the direction. 4. In my opinion, the formal validity of the direction given to the plaintiff did not require the defendant to anticipate that the plaintiff would express an intention to make a claim of privilege, whether legal professional privilege or some other form of privilege. It is for a person who asserts a privilege to claim it or, perhaps more accurately, to object to a demand for compulsory disclosure. 5. No adverse inference should be drawn from the fact that a claim of privilege is made: JD Heydon, Cross on Evidence (11th Australian edition, 2017), paragraph [25040]. An entitlement to claim legal professional privilege (or the privilege against self incrimination) is an important civil right. 6. A claim of privilege having been foreshadowed by the plaintiff at the time he was given the direction, it was incumbent upon the stewards (who were bound to act reasonably) to allow the plaintiff a reasonable opportunity to make out a claim of privilege: JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 FLR 537; AWB Ltd v Australian Securities and Investment Commission [2008] FCA 1877 at [35]. This is uncontroversial. The stewards, and the defendant more generally, have not sought to deny that opportunity to the plaintiff - although his procrastination has been a matter of concern to them given the continuing force of interlocutory injunctions which presently operate to curtail the stewards' investigation and their inquiry into the betting activities of the Snows. 7. Substantive Validity. There is no basis upon which the direction given to the plaintiff can be held to have been an abuse of power or process. It was not given for an improper purpose, but for the purpose of an inquiry into the betting activities of Mr and Mrs Snow in circumstances in which the stewards (with the benefit of information acquired via Mr Snow) had reasonable grounds for a belief that the plaintiff's mobile phone would contain information directly relevant to their inquiry into the betting activities of the Snows. Any challenge to the bona fides of the conduct of the stewards was expressly disclaimed by senior counsel for the plaintiff. 8. Conclusion. For these reasons, I hold that the direction given to the plaintiff was, in form and substance, within the power conferred on the stewards by AR 22(1)(d) to require production and forensic examination of the plaintiff's phone. QUESTION 2 : Whether, irrespective of whether the direction was invalid, the plaintiff consented to the stewards taking possession of his phone, forensically imaging it and using information thereby available 1. But for his having been given the direction by the Chairman of Stewards (exposing him to a material risk of being called upon to show cause why he should not be warned off from racecourses) the plaintiff would not have produced his mobile phone to the stewards, or agreed to their forensic examination of the phone, and their use of information derived from that examination, for any purpose. 2. Nevertheless, when called upon by the Chairman of Stewards to produce his phone and to allow the stewards to take possession of it, forensically examine it and use information thereby acquired, the plaintiff did (albeit with reluctance and an apprehension of consequences for him if he refused to co-operate) voluntarily produce his phone, and allow the stewards to take possession of it for the purpose of forensic examination. 3. One indicator of the fact of the plaintiff's consent to the stewards' proposed deployment of the phone was his voluntary provision to the Chairman of Stewards, upon request, of a password required to access information on the phone. Another was the initial collaboration of the plaintiff's solicitors with the stewards in allowing the stewards access to information on the defendant's forensic image of the phone before, after a lapse of 10 days, the plaintiff changed tack by his commencement of these proceedings. 4. The only expressed qualification on the plaintiff's consent to the stewards' deployment of the phone was his reservation of an entitlement to claim privilege in respect of "legally sensitive" communications. 5. The Chairman of Stewards took possession of the phone on an agreed basis that the plaintiff would be allowed a reasonable opportunity to assert, and prove, an entitlement to legal professional privilege. 6. This reservation of an opportunity to claim privilege means that, in practical terms and optimally, there needs to be an element of ongoing interaction between the parties, if not co-operation, in working out any claims for privilege made within a reasonable time stipulated for that purpose. If a claim of privilege is not made, or established, within a reasonable stipulated time (in circumstances in which the defendant is pressing for access to information available via its forensic image of the plaintiff's phone) the plaintiff may be taken to have waived such, if any, privilege to which he was entitled. 7. Waiver of legal professional privilege, if implied or imputed rather than express, generally occurs if particular conduct of the person entitled to the privilege is inconsistent with maintenance of the confidentiality which the privilege is intended to protect: Mann v Carnell (1999) 201 CLR 1 at [28]-[29]. 8. A failure to claim privilege does not necessarily constitute a waiver of an entitlement to privilege: Heydon, Cross on Evidence (11th Australian edition 2017), paragraph [25020] note 90. The plaintiff did not waive any entitlement to privilege merely by handing his phone over to the Chairman of Stewards subject to a generally expressed concern about "legally sensitive" data: Commissioner of the Police Service v Nirta [2002] 1 Qd R 364; [2001] QSC 119. However, a failure to claim privilege in circumstances in which it is available to be taken (and, if it is to be taken, should be taken) can constitute a waiver of the privilege: Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 26 NSWLR 711 at 730F. In the circumstances of this case, a failure to claim privilege in circumstances in which a reasonable time is allowed for any claim of privilege to be made could reasonably be expected (save in exceptional, unforeseen circumstances) to constitute a waiver of privilege. 9. In any event, it is not to be thought that the plaintiff's consensual handing over of his phone for forensic imaging, without more, obliges him to comply with further directions of the defendant (or its stewards) unless, upon a proper construction of the Thoroughbred Racing Act and the Rules of Racing, he is bound by the Rules to do so. His consent to the stewards taking possession of his phone, forensically imaging it and using it was limited to that. It was not an unqualified submission to the defendant's jurisdiction or a commitment to future co-operation. His consent to a particular deployment of his phone having been given, he cannot retract it once acted upon; the defendant claims a property right to retain the forensic image which, with the plaintiff's consent, it caused to be made of the phone. However, having handed over his phone for a specified purpose which governed the terms in which he was directed to do so, the plaintiff may be entitled to hold the defendant to that purpose, and a consensual compliance with future directions cannot be presumed. 10. Objectively, the plaintiff was motivated to consent to production of his phone on the terms set forth in the written direction addressed to him by the Chairman of Stewards on behalf of the defendant. The nature and ambit of those terms is the subject of questions 3 and 4. QUESTION 3 : Whether any use to which information acquired from the plaintiff's mobile phone might be put must be limited to the stewards' inquiry into the betting activities of the Snows 1. This question is best answered upon an assumption that the plaintiff was not bound, by statute or contract, to comply with the direction given to him by the stewards for production of his mobile phone, but that he agreed to produce his phone on the terms set forth in the defendant's letter dated 5 March 2019, subject only to being allowed a reasonable opportunity to assert, and prove, an entitlement to legal professional privilege. 2. In handing over his phone, subject to any claim for legal professional privilege made within a reasonable time, the plaintiff submitted to the direction that he produce his phone and allow the stewards to take possession of it, forensically image it and use any information acquired from it for the stated purpose of a specific, identified inquiry. 3. He handed his phone over on notice that the defendant may, in time, claim an entitlement to go beyond the inquiry into the betting activities of Mr and Mrs Snow. The letter asserted a requirement that the plaintiff "adhere to the… directions set out [in the letter dated 5 March 2019] and any further directions and/or requirements in accordance with the [Rules of Racing], as considered appropriate" by the stewards. However, in context this "requirement" must be read as limited to the inquiry into the betting activities of the Snows. It follows immediately upon identification of the inquiry into the betting activities of the Snows as the purpose for the direction to the plaintiff to produce his mobile phone. 4. The competing contentions of the parties, in these proceedings, focus attention on AR 22(1)(d), here extracted: "AR 22 Investigations and inquiries (1) Without limiting any other stewards' powers, the stewards have the following powers in relation to investigations and inquiries: … (d) to require production and take possession of and examine (by any means) any mobile phones, computers, tablets, other electronic devices, books, documents and records (including telephone or financial records) in relation to any race meeting and/or any investigation, inquiry, hearing or proceeding…". 1. The plaintiff's submissions focus attention on the words "to require... in relation to any investigation, inquiry, hearing or proceeding". The plaintiff contends that the words "in relation to" (coupled with an expressed requirement that he "produce [his] mobile telephone for the purpose of the inquiry.… into the betting activities of Mr and Mrs Snow") operate as a limitation on the power of the stewards' deployment of the phone. 2. The defendant's submissions focus attention on the words "without limiting any other stewards' powers" and invite the Court to view the expression "in relation to… any investigation, inquiry, hearing or proceeding" not as a material limitation on the stewards' power but as identification of the occasion upon which the plaintiff was required to produce his phone. The defendant submits that the plaintiff was required to produce his phone, and that he consensually did so, subject to the powers of the defendant (and the stewards acting as delegates of the defendant) under the Thoroughbred Racing Act and the Rules of Racing generally. 3. The particular direction under challenge was expressed to be for a specific, stated purpose. Information acquired by exercise of that power may, generally, only be used for that purpose: Johns v Australian Securities Commission (1993) 178 CLR 408 at 423-424; Flori v Commissioner of Police [2015] 2 Qd R 497; [2014] QSC 284. The power exercised was governed by that purpose. The plaintiff, as recipient of the direction, was entitled (in considering whether or not to comply with it) to assess his rights, obligations and personal interests by reference to the stated purpose. It may have been open to the defendant or its stewards to exercise other powers to require the plaintiff to provide information, and it may be open to them still to do so. They may, in time, obtain the plaintiff's unqualified co-operation. However, in the meantime, both sides of the record must work within the legal criteria for which AR22(1)(d) provides. 4. The practical problem which confronts both parties – each from a different perspective – is the probability (near certainty) that the plaintiff's phone contains at least three broad categories of information, across a spectrum. At one end of the spectrum can be found communications between the plaintiff and Mr or Mrs Snow, directly relevant to the stewards' inquiry. At the other end of the spectrum can be found communications of an entirely personal character involving no racing business of any kind, accepted by the parties to be irrelevant. Between these two end points lie communications which relate to racing business which may, or may not, be relevant to the stewards' inquiry. Not until the stewards (or investigators in whom the defendant has confidence) review information available via the defendant's forensic image of the phone can the stewards readily concede the plaintiff's demand that they limit their investigation of his phone to information which is "directly" relevant to the inquiry into the betting activities of the Snows. 5. It is common ground between the parties that the defendant does not need, and does not seek to study or to retain, information relating to the affairs of the plaintiff (or others) unrelated to racing activities. There is no need for the intervention of the Court to ensure that any purely private information on the plaintiff's phone is kept confidential to him. 6. The difficulty in working out the respective rights and obligations of the parties concerns the intermediate category of information accessible via the defendant's forensic image of the phone: communications relating to the plaintiff's racing business generally which may, or may not, bear upon the betting activities of the Snows. The difficulty presents itself in bright colours because (at the time and place and in the circumstances in which the plaintiff was given the direction under challenge) it is doubtful whether he was bound by the Rules of Racing to comply with the direction. 7. In the absence of an agreed protocol for inspection and analysis of the available information, the Court is bound to mould its orders to accommodate the parties' competing rights and obligations. Section 90(1) of the Civil Procedure Act 2005 NSW provides that the Court is "to give such judgment or make such order as the nature of the case requires". Rule 36.1 of the Uniform Civil Procedure Rules 2005 NSW is to the same effect. It provides that "the Court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion". 8. Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, I propose: (a) to dismiss the plaintiff's claims for injunctions restraining the defendant from accessing or using information on the defendant's forensic image of his phone; (b) to allow the Chairman of Stewards and the defendant's Chief Investigator (or some other investigator, or investigators, nominated by the defendants) to access and assess information on the phone for the purpose of identifying information which may bear, directly or indirectly, upon the stewards' inquiry into the betting activities of Mr and Mrs Snow; and (c) to provide an orderly framework for decision making by the stewards (consistent with the limited, purposive ambit of the direction given to the plaintiff and complied with by him) by means of an order that the defendant, by itself, its servants and agents, be restrained from using any information acquired via inspection of the forensic image or any purpose other than the stewards' inquiry into the betting activities of Mr and Mrs Snow without the leave of the Court or the written consent of the plaintiff. 9. An object of this proposed regime of orders is to protect the plaintiff against the risk of an oppressive use of a limited, purposive direction to expose him to adverse consequences beyond the ambit of the direction whilst, at the same time, affording the stewards a full opportunity, acting reasonably, to discharge their official duties. If the stewards' investigations take them down a path leading to consequences potentially adverse to the plaintiff (a path which the defendant presently eschews), based (to take a hypothetical example) on information properly, or otherwise, acquired from his phone in the course of the stewards' inquiry into the betting activities of the Snows, the plaintiff can be protected, so far as may be practicable, against abuse of power, or an abuse of process, by, for example, a scheme of orders designed to crystallise any case sought to be made against him and affording him procedural fairness in dealing with it. QUESTION 4 : Whether the defendant is entitled to retain information acquired from the plaintiff's phone notwithstanding that it may relate to racing activities of the plaintiff unrelated to betting activities of the Snows 1. The answer to this question, in substance, follows the answer to question 3, save that it contemplates that the defendant may be entitled to retain information acquired from the plaintiff's phone beyond the time when the stewards' inquiry into the betting activities of the Snows may conclude. 2. In my opinion, in the absence of any abuse of power, or process, on the part of the defendant (either directly or by its stewards) the defendant is entitled, by its forensic image of the phone (property in its possession, custody and control), to retain information properly acquired from the plaintiff's phone – so far, at least, as it may relate to racing activities – beyond the pendency of the inquiry into the betting activities of the Snows. 3. The defendant is not under an obligation to the plaintiff, or to any other person, to dispossess itself of its forensic image of the plaintiff's phone or of information, or knowledge, properly acquired from the phone which relates to racing activities the subject of its regulatory functions. 4. The devil in the detail here is not so much a temporal limitation but the qualitative limitation expressed by the word "properly". That limitation was addressed in answer to Question 3. QUESTION 5 : Whether, as a professional gambler who routinely causes bets to be laid on horse racing in NSW (including bets laid through TAB outlets), the plaintiff was, at the time given the direction, a "person associated with racing" so as to be bound, by statute or contract, to comply with the stewards' direction that he produce his phone 1. In my opinion, the fact that the plaintiff is a professional gambler who has routinely, from time to time, caused bets to be laid on horse racing in NSW (including bets laid through TAB outlets) was not, of itself, sufficient to allow him to be characterised, at the time he was given the stewards' direction on 5 March 2019, as a person who was bound to comply with the direction. 2. At the time the direction was given, the plaintiff (himself an unlicensed person) was not on a race track, in a TAB outlet (which might have required him, by its rules, to submit to the Rules of Racing) or dealing with a person licensed by the defendant. Nor was he engaged at that time in any racing activity beyond the fact that the defendant's Chairman of Stewards and Chief Investigator approached him to communicate the defendant's direction. 3. The fact (as I have found) that the Chairman of Stewards (as a delegate of the defendant) was empowered to give the direction to the plaintiff does not, of itself, carry with it a finding that the plaintiff was bound, by statute or contract, to comply with it. 4. The fact that the plaintiff might, in an abstract setting, be described as a "person associated with racing" is not, of itself, sufficient to ground a finding that he was bound, by statute or contract, to comply with the stewards' direction (even if they were empowered to give it) at the time or place or in the circumstances in which it was given. 5. The fact that the plaintiff agreed to co-operate with the stewards (even if not bound to do so) is not remarkable given that, even if not liable to prosecution for an offence against the Rules of Racing, he was exposed to a possibility that he would be required to show cause as to why he should not be "warned off" if he did not co-operate with a bona fide inquiry into betting activities capable of reflecting adversely on the reputation and integrity of racing. 6. This act of co-operation was not, however, an open-ended, unconditional submission to the Rules of Racing or whatever jurisdiction may be conferred on the defendant (and its stewards) by those Rules. Whether or not the plaintiff (as an unlicensed person) is bound to comply with directions he may from time to time be given by the defendant, or the stewards, is a question which must be determined in light of the circumstances prevailing at each time any such direction is given. 7. I do not pause to consider whether, had the plaintiff refused to hand over his phone, the defendant could have obtained an order from this Court compelling him to do so, upon an exercise of auxiliary equitable jurisdiction to order discovery: Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, approved in Palmer v Ayres (2017) 259 CLR 478 at [38]-[39]. Cf, McLean v Burns Philp Trustee Co. Pty Ltd (1985) 2 NSWLR 623 at 643-646. Summary conclusions on Questions 1 - 5 1. In my opinion, and on the findings I have made: 1. the plaintiff is not entitled to a declaration that the direction given to the plaintiff on 5 March 2019 was "ultra vires and unlawful" , or to any of the consequential relief sought in his summons. 2. the interlocutory injunctions granted to the plaintiff shortly after the commencement of these proceedings should be discharged. 3. orders should be made by the Court limiting the time within which the plaintiff can claim privilege in respect of information recorded on his phone. 4. an order should be made that the defendant, by itself, its servants and agents, be restrained from using any information acquired from the plaintiff's mobile phone for any purpose other than the stewards' inquiry into the betting activities of Mr and Mrs Snow without the leave of the Court or the written consent of the plaintiff. 5. there should be a reservation to the parties of liberty to apply for a determination of contested claims of privilege or for directions arising from the defendant's access to information derived from the plaintiff's phone. 6. an order should be made for the plaintiff's summons otherwise to be dismissed. 1. This follows from my conclusions that: 1. the direction given to the plaintiff on 5 March 2019 was, in form and substance, within power. 2. irrespective of whether the direction was valid or invalid, the plaintiff consented to the stewards taking possession of his phone, forensically imaging it and using it for a specified limited purpose, not otherwise. 3. any use to which information acquired from the plaintiff's phone might be put is prima facie limited to the stewards' inquiry into the betting activities of the Snows, but may possibly (subject to due process being afforded to the plaintiff) extend to due performance by the defendant of its functions generally. 4. the defendant is entitled to retain information properly acquired from the plaintiff's phone, so far as it relates to racing activities, beyond the time of completion of the inquiry into the betting activities of the Snows. 5. although the plaintiff was not (in the particular circumstances in which he was given the direction to produce his phone) obliged to comply with the direction, it was open to him to choose to produce his phone in compliance with the direction. 6. the fact that the plaintiff's decision to produce his phone in compliance with the direction was motivated by an apprehension that, if he did otherwise, he might be called upon to show cause why he should not be warned off racecourses does not, of itself, prevent the defendant (or its stewards) from using, in the ordinary course of their official duties, information about racing activities properly acquired from the plaintiff's phone. QUESTION 6 : If (as has been found) the plaintiff is unsuccessful in his challenge to the validity of the stewards' direction, whether he should be given any (and, if so, what) further time to identify mobile phone data said to be the subject of a claim of privilege 1. The defendant was obliged to allow the plaintiff a reasonable time within which to assert, and establish, a claim to legal professional privilege, after the expiry of which time any claim for privilege could be taken to have been waived. 2. The plaintiff's solicitors initially engaged constructively with the defendant in identification of data which might be the subject of an entitlement to privilege. That data was, co-operatively, quarantined so as to be beyond the investigative reach of the defendant. 3. When the plaintiff commenced these proceedings challenging the validity of the stewards' direction to hand over his mobile phone, his attention was diverted away from a continuing need to assert, and to establish, any claim of privilege he proposed to make. 4. It is in the interests of both parties to these proceedings that the Court set a specific, defined time within which any claim for privilege not hitherto made must be made if it is to be sustained. Without a specific time being fixed for that purpose, the plaintiff cannot be secure in knowledge that his entitlements to privilege will be upheld. On the other hand, without specification of a time the defendant, for its part, cannot be secure in knowledge that information it may acquire from the plaintiff's phone is properly available to it in the performance of its functions. The Future Operation, if any, of Suppression Orders 1. Shortly after the commencement of these proceedings, a Duty Judge made an order and a notation to the following effect: 1. Order, in the inherent jurisdiction and pursuant to section 10 of the Court Suppression and Non Publication of Orders Act 2010 NSW, that publication and disclosure of the following be prohibited up to and including (a date, since extended to the final determination of these proceedings): 1. any pleadings filed in these proceedings. 2. any information that comprises evidence, or information about evidence in these proceedings, including, but not limited to affidavits, tendered documents, and documents marked for identification or as exhibits. 3. any submissions made (in writing or orally) in relation to these proceedings. 4. any orders of the court made in these proceedings, other than for the purpose of service and compliance with these orders. 1. nothing in order (a) prevents: 1. the parties to the proceedings from providing court documents to a legal practitioner for the purpose of obtaining legal advice, or exchanging documents between one another for the purpose of compliance with any orders made in these proceedings. 2. publication of the next listing date of these proceedings. 1. The plaintiff maintains that it is necessary for these, or similar orders, to be in operation up to the time that a verdict is returned in the criminal proceedings pending against him in the District Court, due to be tried with a jury in a trial scheduled to commence on 30 September 2019. 2. Section 4 of the Court Suppression and Non Publication of Orders Act 2010 provides that nothing in the Act limits the inherent jurisdiction of the Court to regulate its proceedings. Section 7(b) empowers the Court to make a suppression order or a non-publication order, on grounds permitted by the Act, to prohibit or restrict publication or other disclosure of information that comprises evidence, or information about evidence, given in proceedings before the Court. The plaintiff relies upon the ground for which section 8(1)(a) of the Act provides: he contends that an order "is necessary to prevent prejudice to the proper administration of justice". Section 6 of the Act requires that the Court take into account the public interest in open justice as a primary objective of the administration of justice. Section 12(2) provides that an order is to apply for no longer than is reasonably necessary to achieve its purpose. 3. A key element of the Court's consideration, referable to both the Court Suppression and Non Publication of Orders Act and to any order made in the Court's inherent jurisdiction, is consideration of what may be "necessary" to prevent prejudice to the proper administration of justice. 4. The meaning of the word "necessary" depends on the context in which it is used, and the context in which an assessment of "necessity" is to be made: Fairfax Digital Media and New Zealand Pty Limited v Ibrahim [2012] NSWCA 125 at [46]. 5. Particular care needs to be taken in the context of a forthcoming jury trial of criminal charges. Open justice is not the only fundamental principle that needs to be recognised and protected as an aspect of the proper administration of justice; another is the fundamental right of a person to a fair trial: Nationwide News Pty Limited v Qaumi (2016) 93 NSWLR 384 at [65]. 6. Both parties to the present proceedings have drawn attention to media speculation about the stewards' inquiry into the betting activities of the Snows, and the incidental involvement of the plaintiff in the stewards' investigation connected with that inquiry. Much of that speculation appears to be ill-founded. 7. The plaintiff contends, and I accept, that he had reasonable grounds for invoking the Court's assistance to ensure that his engagement with the stewards, in connection with their inquiry into the betting activities of the Snows, proceeds in an orderly, fair way. He also contends, and I accept, that his invocation of the Court's jurisdiction in these proceedings should not expose him to a risk of prejudice in the period leading to the determination of the criminal proceedings affecting him. 8. Taking up the role of a contradictor, the defendant opposed the plaintiff's application for continuing non-publication orders. However, it stopped well short of suggesting that a continuation of such orders, in the limited terms on which they have to date operated, might interfere with the stewards' investigation or their inquiry into the betting activities of Mr and Mrs Snow. 9. Taking into account public interest considerations relating to a requirement for open justice, the plaintiff's entitlement to a fair trial and the importance of due process in the conduct of the stewards' inquiry, I propose to take the following steps: 1. the current non-publication order will, in substance, be continued up to the time that a verdict is returned in the criminal proceedings. 2. a supplementary order will be made that there be no access to the court file granted to a non-party, before that time, without the leave of a judge. 3. the parties will be allowed an opportunity to make submissions about whether these reasons for judgment should be withheld from publication, or published only in a redacted form, pending the determination of the criminal proceedings. 1. Given media interest in the fact, and outcome, of the current proceedings, I am presently disinclined to withhold publication of the reasons for judgment generally, but I will allow the parties to make such submissions as to them seem fit. CONCLUSION 1. Having allowed the parties an opportunity to be heard as to the form of orders to be made (after publication of these reasons for judgment to them), I make the following orders: 1. ORDER that any claim of privilege to be made by the plaintiff in respect of data recorded on the defendant's forensic image of his mobile phone be made by way of a written notice (identifying material the subject of a claim of privilege and, in respect of each claim, the ground upon which privilege is claimed) delivered to the defendant no later than 11 April 2019. 2. ORDER that, as from 12 April 2019, the Chairman of Stewards and the Chief Investigator of the defendant be at liberty to access and assess information on the phone (not being the subject of a claim of privilege made by the plaintiff) for the purpose of identifying information which may bear, directly or indirectly, on the stewards' inquiry into the betting activities of Mr and Mrs Snow. 3. ORDER that the defendant, by itself, its servants and agents, be restrained from using any information acquired via inspection of the forensic image of the plaintiff's phone for any purpose other than the stewards' inquiry into the betting activities of Mr and Mrs Snow without the leave of the Court or the written consent of the plaintiff. 4. RESERVE to the parties liberty to apply for a determination of any contested claim of privilege or for directions arising from the defendant's access to information derived from the forensic image of the plaintiff's phone. 5. ORDER that, as from 12 April 2019, the interlocutory injunctions granted on 18 March 2019, and subsequently continued in operation, be discharged. 6. ORDER, up to the time that a verdict is returned in the criminal proceedings to which the plaintiff is subject or until further order of this Court, that: 1. publication and disclosure of the following be prohibited: 1. the originating process filed in these proceedings. 2. any information that comprises evidence, or information about evidence in these proceedings, including, but not limited to affidavits, tendered documents, and documents marked for identification or as exhibits. 3. any submissions made (in writing or orally) in relation to these proceedings. 1. no person who is not a party to these proceedings is to be granted access to the court file relating to the proceedings without the leave of a judge. 1. ORDER that the plaintiff's summons otherwise be dismissed. 1. The time to be allowed for the plaintiff to claim privilege after publication of these reasons for judgment, balanced against a need for reasonable accommodation of the stewards' inquiry into the betting activities of the Snows, must be assessed in light of the time already allowed to him and an express warning given to him at the conclusion of oral argument (nearly two weeks ago) that prudence required him to take immediate steps towards identification of data the subject of any claim of privilege. In total, he has had a few days more than a month to formulate claims to privilege. A short further time should be allowed but more than that would extend his opportunity to claim privilege beyond the reasonable. 2. I make no orders as to the costs of the proceedings. Each party has attained partial success. The Court's orders reflect a need to assist the parties in establishment of administrative arrangements to work through the consequences of a direction given for a specific, limited purpose. ******************* Amendments 09 April 2019 - Paragraph 10 deletion of "and" prior to "any knowledge" in the fourth line. Paragraph 81 deletion of "un" before "fairness" in the last line. Paragraph 83 insertion of a comma after "alone" in the first line. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2019