Betfair Pty Limited v Racing New South Wales

(2010) 189 FCR 356; [2010] FCAFC 133

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Freedom of interstate trade
3. › Section 92 of the Constitution
4. › Protectionist discrimination
5. › Fee imposed on wagering turnover at uniform rate
6. › Whether fee protectionist in character where greater proportionate impact on low-margin interstate operator
7. › Whether demonstration of likely effect on competitive advantage required
8. › Constitution, s 92
1. Constitutional Law (Cth)
2. › Freedom of interstate trade
3. › Section 92 of the Constitution
4. › Scope of protection
5. › Whether s 92 protects individual trader's business model
6. › Whether inquiry directed to common circumstances of trade or individual trader's particular circumstances
7. › Constitution, s 92
1. Practice and Procedure
2. › Pleadings
3. › Function of pleadings
4. › Whether case should be determined on merits despite pleading deficiencies
5. › Whether parties fought case on issues fairly raised at trial
6. › Federal Court of Australia Act 1976 (Cth), s 22

Quick Take

Challenging facially neutral fees or imposts under s 92 requires evidence demonstrating likely adverse effects on competitive advantage, market share, or profitability — merely showing differential proportionate impact on commission is insufficient.