Tabcorp Holdings Ltd v Entain Group Pty Ltd (No 2) [2023] NSWSC 311

Tabcorp Holdings Ltd v Entain Group Pty Ltd (No 2) [2023] NSWSC 311

Category (2) required a cut-off date and should not capture advice given in response to the preliminary discovery application itself, so the cut-off was fixed at 21 November 2022, the date Tabcorp filed its Summons. Continuing discovery for Category (4) was refused because, in a preliminary discovery application, UCPR r 21.6 was already spent and because preliminary discovery is directed to documents available when the application is determined to enable a decision whether to sue. Although Tabcorp did not obtain all categories sought, it succeeded on the threshold issue that occupied most of the hearing, so Entain and AHA together were ordered to pay 60% of Tabcorp's costs of the...

Jurisdiction
Australia
Judgment Date
30 March 2023
Procedural Posture
Application for Preliminary Discovery / Consequential Orders Determining Precise Scope of Preliminary Discovery and Costs
Outcome
Precise scope of preliminary discovery determined; continuing discovery refused; defendants to pay 60% of plaintiffs' costs of the application; plaintiffs to pay reasonable compliance costs; parties' rights reserved to seek variation of the compliance costs order if substantive proceedings are commenced.
Legal Topics
['preliminary Discovery' 'scope of Discovery' 'continuing Discovery' 'costs of Preliminary Discovery' 'compliance Costs']
['civil Procedure'] ['preliminary Discovery' 'scope of Discovery' 'continuing Discovery' 'costs of Preliminary Discovery' 'compliance Costs']

Case Brief

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Procedural Posture

Application for Preliminary Discovery / Consequential Orders Determining Precise Scope of Preliminary Discovery and Costs

Legal Issues

  1. 1 ['What cut-off date should apply to preliminary discovery of legal advice received with respect to the lawfulness of the Entain partnership or arrangements with NSW venues.' 'Whether Entain and AHA should be ordered to give continuing discovery for Category (4).' "What costs order should be made for Tabcorp's application for preliminary discovery." 'What order should be made for the reasonable costs of compliance with preliminary discovery.']

Ratio Decidendi

Category (2) required a cut-off date and should not capture advice given in response to the preliminary discovery application itself, so the cut-off was fixed at 21 November 2022, the date Tabcorp filed its Summons. Continuing discovery for Category (4) was refused because, in a preliminary discovery application, UCPR r 21.6 was already spent and because preliminary discovery is directed to documents available when the application is determined to enable a decision whether to sue. Although Tabcorp did not obtain all categories sought, it succeeded on the threshold issue that occupied most of the hearing, so Entain and AHA together were ordered to pay 60% of Tabcorp's costs of the...

Court Disposition

Precise scope of preliminary discovery determined; continuing discovery refused; defendants to pay 60% of plaintiffs' costs of the application; plaintiffs to pay reasonable compliance costs; parties' rights reserved to seek variation of the compliance costs order if substantive proceedings are commenced.

Orders

  • ['The cut-off date for disclosure in Category (2) is 21 November 2022.' 'No order for continuing discovery in Category (4).' "Entain and AHA, together, are to pay 60% of Tabcorp's costs of the application." "Tabcorp is to pay Entain's and AHA's reasonable costs of giving preliminary discovery." "The order that...