Last week, the High Court of Australia (Australia's highest
court) heard each of the appeals of Betfair and Sportsbet in
respect of the findings of the Full Federal Court last
Both cases will require a determination by the High Court as to
whether section 92 of the Australian Constitution prevents Racing
New South Wales from levying a fee of 1.5 per cent of turnover
under its race fields regime.
Betfair's position is that the use of turnover as a
benchmark for the calculation of race fields fees is discriminatory
and designed to protect local operators, primarily TAB Ltd (the
operator of the NSW totalisator).
Sportsbet had initially argued that the entire legislative
scheme is invalid but our understanding is that this argument has
been narrowed and that Sportsbet is now submitting that the
turnover fee is invalid because of arrangements between Racing New
South Wales, TAB Ltd and NSW bookmakers that mean NSW operators are
protected from the impact of the fee.
In its appeal, Betfair argues that the trial judge was incorrect
in stating that Betfair had to show that the discrimination imposed
by the turnover fee was protectionist when there was already
evidence that it was vastly discriminatory in terms of cost.
Sportsbet argues in its appeal that the decision of the Full
Federal Court (which overturned the trial judge's decision in
Sportsbet's favour) was incorrect because it analysed the
imposition of the fee and the relief granted to NSW operators as
two separate actions rather than a "package of measures"
that must be looked at together.
The impact of the decision on the race fields regime, and other
legislative provisions, in each Australian State and Territory
which restrict the operations of interstate licensed bookmakers is
potentially considerable. It will be of particular interest whether
the High Court is prepared to expand on the principles it
enunciated in the original 2008 Betfair case.2 Also, the
decision is likely to affect significantly the outcome of any
appeal relating to the Betbox decision (see below).
We will inform you of the decision which we expect to be handed
down later this year or early 2012.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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