Key Points: The appeals in both the Sportsbet and Betfair matters have been heard, but the result is still pending.
Despite the Victorian race fields agreement, the NSW race fields proceedings look set to continue with commentary stating that Racing NSW is strongly committed to pursuing a turnover-based model for NSW race fields fees.
Following Justice Perram's first instance judgment that found that Racing NSW and Harness Racing NSW had discriminated in favour of TAB in the application of the turnover based fee structure (and subsequently that the fee was protectionist in nature), the appeals in both the Sportsbet and Betfair matters were heard before Chief Justice Keane, and Justices Lander and Buchanan from 27 September 2010 to 1 October 2010. Submissions were made on the following topics during the appeal hearings:
- the correct interpretation, and legitimacy, of the Race Fields Legislation;
- the interpretation of relevant section 92 Constitutional case law;
- whether Justice Perram had erred in his findings in the first instance judgment; and
- in respect of the evidence relied upon in Justice Perram's first instance judgment, whether any issues of procedural fairness arose against Racing NSW and Harness Racing NSW.
Judgement was reserved in all matters. With some commentators arguing that the issue of race fields fees is critical to the health of racing within NSW, the case continues to be closely followed Australia wide. With no sign of any agreement between the parties on the horizon, however, a conclusion to the matter will not be likely until all appeal avenues have been exhausted.
In the meantime, the potential torrent of challenges to the payment of race fields fees in NSW has started for Racing NSW with new proceedings filed by Sportingbet in August following Justice Perram's first instance judgment.