Sportsbet Pty Ltd v State of New South Wales [2012] HCATrans 38 (14 February 2012)

Last Updated: 16 February 2012

[2012] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S356 of 2011

B e t w e e n -

SPORTSBET PTY LTD (ABN 87 088 326 612)

Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 FEBRUARY 2012, AT 9.32 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN: If your Honour please, I appear for the plaintiff. (instructed by Fitzpatrick Legal)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the defendant. (instructed by Crown Solicitor for New South Wales)

MR P.J. BRERETON, SC: If it please the Court, I appear with MS R.C.A. HIGGINS for Tabcorp Holdings and TAB Limited. (instructed by Freehills)

HIS HONOUR: Yes. You have a summons filed on 25 November?

MR BRERETON: Yes, your Honour.

HIS HONOUR: Seeking joinder of Tabcorp Limited and Tabcorp Holdings Limited. They would be the second and third defendants.

MR BRERETON: Yes, your Honour.

HIS HONOUR: That is not opposed by the State. What is your attitude, Mr Lenehan?

MR LENEHAN: Your Honour, it is not opposed by Sportsbet either.

HIS HONOUR: I think it is to the advantage of everyone really because there is an immediately binding effect of any declaration that is made.

MR LENEHAN: Yes, your Honour. Your Honour, my friend, Mr Brereton, had some short minutes to which we have added a couple of suggestions. Might I hand those up?

HIS HONOUR: Yes, certainly. I have read Justice Gordon’s reasons in the Victorian litigation and looked at section 11A of the New South Wales Act. Is there a date yet for the appeal in the Full Federal Court?

MR LENEHAN: Your Honour, it is to be heard next Monday, Tuesday and Wednesday, I believe.

HIS HONOUR: Right.

MR LENEHAN: Your Honour, as to proposed orders 1 to 3, that would give effect - - -

HIS HONOUR: Yes.

MR LENEHAN: I am not sure about 5, namely, there may be evidentiary matters. What is your attitude to No 5, Mr Solicitor?

MR SEXTON: As your Honour appreciates from our written submissions, we say that the matter should be remitted to the Federal Court, although, of course, what is happening next week in the Federal Court is a - - -

HIS HONOUR: That is right.

MR SEXTON: So to that extent, we would resist those other orders. It seems to us that there would be real advantage in this matter going through the Federal Court stage, although it depends to some extent on what happens to the other case.

HIS HONOUR: Yes, I can see that. It might be best if the proceeding in this Court mark time until we have a result in the Full Federal Court. All right, thank you. The sections do look rather similar in New South Wales and Victoria.

MR LENEHAN: Your Honour, that is true. I suppose my friend’s submission seems to assume a certain air of inevitability about the Full Federal Court proceedings making their way to this Court.

HIS HONOUR: I do not know about that - might not get special leave.

MR LENEHAN: That is correct, your Honour. In terms of the disputed evidence, we would have to accept that those issues have arisen before Justice Gordon but we are confident that they could be perhaps accommodated more readily in the special case format before this Court and the intent of our proposed orders was at least to try to achieve that outcome. But I have heard what your Honour says.

HIS HONOUR: Yes, all right. I hear what you say, but I still think it is best for this to mark time. Now, how long would you need for a reply for the defence?

MR LENEHAN: Fourteen days, your Honour.

HIS HONOUR: All right. Thank you. The defences may not coincide, may they not? There may be a separate defence from Mr Brereton’s clients.

MR LENEHAN: Your Honour, I am assuming that there will be separate defences.

HIS HONOUR: Yes. I make orders:

1. Tabcorp Limited be joined as second defendant.
   
2. Tabcorp Holdings Limited be joined as third defendant.
   
3. Costs of the second and third defendants’ summons dated 25 November 2011 be costs in the cause.
   
4. The defendants file and serve defences on or before 9 March 2012.
   
5. The plaintiff file and serve any reply on or before 23 March 2012.
   
6. The matter be listed for further directions on 13 April 2012 at 9.30 am in Sydney before me.
   
7. Liberty to restore on five days written notice.
   

In case there are any developments. Are those dates satisfactory?

MR LENEHAN: Yes, your Honour.

MR SEXTON: Yes, your Honour.

HIS HONOUR: Mr Brereton?

MR BRERETON: Yes, your Honour, thank you.

HIS HONOUR: I make those orders and I will now adjourn.

AT 9.42 AM THE MATTER WAS ADJOURNED