Defina v Kenny - [1946] HCA 20

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Gaming and Wagering-Credit bet on racecourse-Satisfactory acknowledgment

indicating nature of bet-Unstamped betting ticket-Capacity of bookmaker to sue-The Racing and Coursing Regulation Acts 1930 to 1936 (Q.) (21 Geo. V. BRISBANE,

No. 27-1 Edw. VIII. No. 24), S. 22.

Section 22 of The Racing and Coursing Regulation Acts 1930 to 1936 (Q.) SYDNEY,

provides that a bookmaker who (having a permit under the Racecourses Acts July 30.

1923 to 1936) makes on a racecourse a bet with any person shall be deemed to have made a contract and may sue and be sued on such contract. The section further provides that "it shall be the duty of any bookmaker making any

to issue a stamped betting ticket or give any other satis factory acknowledgment indicating the nature of the bet to the person with ment shall not be made by any unstamped betting ticket."

Held, by Latham C.J., Dixon and McTiernan JJ., that an oral statement by the bookmaker and a direction to his clerk to record the bet, both made in the presence of the bettor, did not constitute a satisfactory acknowledgment within the meaning of the section.

By Rich J. dissenting: The issue of a stamped betting ticket or other satis factory acknowledgment is not made by the statute an indispensable condition of the right of action for the recovery of the bet and therefore what amounts to a satisfactory acknowledgment is a question that did not arise.

Decision of the Supreme Court of Queensland (Full Court), by majority,

72 CLR 165

APPEAL from the Supreme Court of Queensland.

Martin Joseph Kenny sued Frank Defina in the Supreme Court of Queensland for £500, being the amount of losing bets made by the defendant with the plaintiff, a bookmaker, holding a licence to carry on business as such under the Queensland Turf Club, Brisbane. The bets were made on 7th April 1945 at a race meeting held and conducted by the Brisbane Amateur Turf Club at Albion Park Racecourse, Brisbane. As the bets were made, the plaintiff repeated the bets and directed his clerk to record them in the book which was kept under The Racecourses Acts 1923 to 1936 (Q.) for income tax purposes. Evidence was given that, in respect of a bet of £50 made on a racehorse Jenny Rah, the defendant looked at the entry in the book kept by the plaintiff's clerk and checked the bet. At the trial, no evidence was called for the defence. Webb C.J. found that, in all the circumstances, there was a satisfactory acknowledgment of the bets and gave judgment for the plaintiff for £500 with costs. On the defendant appealing to the Full Court, the appeal was by a majority (Philp and Mansfield JJ.) dismissed (Macrossan S.P.J. dissenting except as to the bet on Jenny Rah).

From that decision, the defendant appealed to the High Court. Jeffriess, for the appellant. Under S. 22 of The Racing and Coursing Regulation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Defina v Kenny

Details

AGLC: Defina v Kenny [1946] HCA 20
Case: [1946] HCA 20
Decision Date: 30 July 1946

CaseChat Overview and Summary

The case of *Defina v Kenny* concerned an appeal to the High Court of Australia from the Supreme Court of Queensland. The dispute arose from a claim by Martin Joseph Kenny, a licensed bookmaker, against Frank Defina for the recovery of £500 in losing bets made on a racecourse. The central issue revolved around whether Kenny had complied with the requirements of section 22 of *The Racing and Coursing Regulation Acts 1930 to 1936* (Q.) concerning the acknowledgment of credit bets.

The legal question before the High Court was whether the actions taken by the bookmaker, Kenny, constituted a "satisfactory acknowledgment" of the bets made by Defina, as required by section 22(4) of the Act. This subsection mandated that a bookmaker issuing a credit bet must either issue a stamped betting ticket or provide some other satisfactory acknowledgment indicating the nature of the bet to the person with whom the bet was made. The court had to determine what form such an acknowledgment could take and whether the specific actions in this case met the statutory standard.

A majority of the High Court, comprising Latham C.J., Dixon and McTiernan JJ., held that the bookmaker's actions did not constitute a satisfactory acknowledgment. Their reasoning was that the statutory requirement for an acknowledgment, particularly when not a stamped betting ticket, implied the creation of tangible evidence that could be given to and received by the bettor. An oral statement by the bookmaker to his clerk to record the bet, even if made in the bettor's presence, and the subsequent entry in the bookmaker's betting book, were deemed insufficient. These actions did not result in the bookmaker providing anything to the bettor that could serve as evidence of the bet. The inspection of the betting book by the bettor in one instance was also not considered sufficient to transform the bookmaker's internal record into an acknowledgment given to the bettor.

Consequently, the High Court allowed the appeal, setting aside the decision of the Supreme Court of Queensland. Judgment was entered for the defendant, Defina, with costs awarded to him for the action and the appeals. Rich J. dissented, finding that the issue of a stamped betting ticket or other satisfactory acknowledgment was not an indispensable condition for the right of action, and therefore the question of what constituted a satisfactory acknowledgment did not arise.

Orders