Betfair Pty Limited v Racing New South Wales (No 13) [2010] FCA 14

Betfair Pty Limited v Racing New South Wales (No 13) [2010] FCA 14

Given Betfair's success against Racing NSW's 'without prejudice' privilege claim and partial, but not complete, success against the State's privilege claims, costs should follow the event for each issue. Racing NSW is liable for Betfair's costs relevant to their claim; the State, against which Betfair had partial...

Source-derived case information.

Parties
Applicant: Betfair Pty Limited; First Respondent: Racing New South Wales; Second Respondent: Harness Racing New South Wales; Intervening: State of New South Wales
Jurisdiction
Australia
Judgment Date
27 January 2010
Procedural Posture
Notice of Motion (costs Following Interlocutory Application) / Post Interlocutory, Costs Determination After Appeal
Outcome
Costs apportioned: First and second respondents to pay the applicant's costs relating to 'without prejudice' privilege, and the State to pay 60% of the balance of the applicant's costs.
Legal Topics
Costs, Privilege, Discovery
Civil Procedure Costs Privilege Discovery

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Summary, issues, holding and outcome

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Parties

Betfair Pty Limited

Applicant

Racing New South Wales

First Respondent

Harness Racing New South Wales

Second Respondent

State of New South Wales

Intervening

Procedural Posture

Notice of Motion (costs Following Interlocutory Application) / Post Interlocutory, Costs Determination After Appeal

Legal Issues

  1. 1 Who should bear the costs of a notice of motion seeking production of documents over which privilege claims were made, following partial success by the applicant and variation of initial orders on appeal; apportionment of costs among the responding parties.

Ratio Decidendi

Given Betfair's success against Racing NSW's 'without prejudice' privilege claim and partial, but not complete, success against the State's privilege claims, costs should follow the event for each issue. Racing NSW is liable for Betfair's costs relevant to their claim; the State, against which Betfair had partial success, is liable for a proportion (60%) of Betfair's remaining costs. Proportional orders are appropriate due to mixed outcomes and the compensatory nature of costs.

Court Disposition

Costs apportioned: First and second respondents to pay the applicant's costs relating to 'without prejudice' privilege, and the State to pay 60% of the balance of the applicant's costs.

Orders

  • The first and second respondents pay the applicant's costs of the notice of motion filed on 22 September 2009 as agreed or taxed but only insofar as those costs relate to the first and second respondents' claim that documents discovered in the proceeding were protected by 'without prejudice' privilege.
  • Subject to Order 1, the State of New South Wales pay 60% of the applicant's costs of the notice of motion filed on 1 October 2009 otherwise incurred as agreed or taxed.