Background
KenoGO Pty Ltd challenges the constitutional validity of s 8D(2)(b) of the Interactive Gambling Act 2001 (Cth), as amended effective 1 January 2027 by item 11 of Schedule 4 to the Interactive Gambling Amendment (Gambling Reform) Bill 2026 (Cth). The amendment would prohibit the provision of online Keno gambling services in Australia. KenoGO contends the law contravenes s 92 of the Constitution. On 22 October 2026, Hammerschlag CJ in Eq made orders, not opposed by the Commonwealth, restraining enforcement of the provisions until determination of the proceedings. The final hearing is listed for five days commencing 1 March 2027.
The Commonwealth agreed to search specified repositories of the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts and the Department of the Prime Minister and Cabinet for documents within eight categories. The dispute concerned whether discovery should extend beyond those two departments to material held by political staff and advisors in the Office of the Minister for Communications and the Office of the Prime Minister (the disputed categories). The plaintiff relied on an affidavit of Mr Andrew Christopher sworn 3 November 2026. The Commonwealth did not oppose the discovery on the basis of oppression and accepted it could provide the documents by 11 December 2026 if ordered.
The Court’s Holding
Richardson J refused the application for discovery of the disputed categories and ordered the plaintiff to pay the defendant’s costs of the application. Her Honour held that the plaintiff had not overcome the requirement under Practice Note SC Eq 11 that there will be no order for disclosure in the Equity Division unless it is necessary for the resolution of the real issues in dispute.
The Court reasoned that the enquiry under s 92 of the Constitution as to whether effective alternative measures are available is an objective one. It was difficult to see how what a Minister’s advisers thought about an alternative, or whether it was raised with a Minister, makes it more or less probable that an alternative has the necessary objective characteristics. The Court distinguished Palmer v Western Australia (No 4) [2020] FCA 1221, Unions NSW v State of New South Wales (2019) 264 CLR 595, and Betfair Pty Ltd v Racing New South Wales (No 7) (2009) 181 FCR 66, finding none persuaded it that discovery from Ministerial advisors was necessary in this case.
Her Honour noted that under the agreed categories, the plaintiff would already receive any departmental advice about alternative options considered. Further, material from Ministerial advisors was likely to create distraction and produce delay, generating a large amount of material about subjective views likely to be of little assistance. Even if the documents could meet the description of relevant to a fact in issue under r 21.1(2) of the Uniform Civil Procedure Rules 2005 (NSW)—which the Court did not need to decide—that was not enough in this proceeding, which is proceeding on an urgent basis in the Commercial List.
Key Takeaways
- Discovery of documents held by Ministerial advisers was refused because it was not necessary for the resolution of real issues in dispute under Practice Note SC Eq 11.
- The s 92 constitutional enquiry regarding alternative measures is objective; the subjective views of Ministerial advisers or whether alternatives were raised with Ministers are not probative of whether alternatives possess the required objective characteristics.
- In expedited Commercial List proceedings, steps likely to create distraction, complexity, or delay are to be eschewed unless necessary to resolve the real dispute.
- Relevance under UCPR r 21.1(2) alone is insufficient for discovery in the Commercial List where the necessity threshold applies.
Why It Matters
This decision reinforces the stringent approach to discovery in the Commercial List of the NSW Supreme Court, particularly in urgent constitutional challenges. It clarifies that where the legal test is objective—such as the s 92 enquiry into reasonable non-discriminatory alternative means—discovery of internal executive communications reflecting subjective adviser views will rarely meet the necessity threshold. The ruling emphasises that expedition and the avoidance of distraction are paramount in the Commercial List, and that parties cannot rely on broader relevance standards applicable in other contexts.