Holloway v Doyle

[1999] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:	Doyle v Holloway [1999] QCA 215
PARTIES:	WINSTON DOYLE (Plaintiff/Respondent) v CONVEL HOLLOWAY (Defendant/Appellant)
FILE NO/S:	Appeal No 4353 of 1999 DC No 769 of 1990
DIVISION:	Court of Appeal
PROCEEDING:	General civil appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	16 November 1999
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 1999
JUDGES:	Davies and Thomas JJA and Jones J
ORDER:	Appeal dismissed with costs, including reserved costs, to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – IN GENERAL AND RIGHT OF APPEAL – appeal from District Court judgment in respect of credit bet allegedly placed by respondent punter with appellant bookmaker – whether findings of fact reasonably open to trial judge
COUNSEL:	Mr P D McMurdo QC, with him Mr M E Eliadis, for the appellant Mr H B Fraser QC, with him Mr B A Laurie, for the respondent
SOLICITORS:	Robert Downey Lawyers for the appellant Bruce J Martin for the respondent

1. THE COURT: The appellant is a bookmaker against whom judgment was given in the District Court for $54,000 (plus interest and costs) in respect of a credit bet allegedly placed with him by the respondent on 21 January 1989.

2. In order to succeed in this appeal the appellant needs to satisfy this Court that some primary findings of fact made by the learned trial judge should be set aside and that different findings of fact should be substituted. It has therefore been necessary to review the evidence in some detail.

3. The respondent's case, as asserted in his statement of claim, was that the appellant "duly made a credit bet" of $45,000 to $9,000 with the respondent that a horse "Tigers Image" would win a specified race on 21 January 1989, and that Tigers Image won the race. As the pleading expresses the bet as that of the appellant bookmaker, it might have been more accurate to have pleaded that the appellant bookmaker accepted the respondent's bet to that effect. The appellant's defence was to admit that the respondent made a credit bet with him for $9,000 with respect to the race in question, but to allege that the bet was for the horse "Tiny's Finito" to win the race, and that Tiny's Finito did not win the race.

4. The parties proceeded to litigate their dispute on a limited and specific basis. Clearly enough the respondent's claim was based upon contract. It was necessary for him to show that the bet that he offered was on "Tigers Image" and that it was accepted by the appellant. The defence was a denial that such a bet had been placed and the denial was reinforced by the positive statement that a bet had been made on a different horse.

5. It is clear that the parties did not litigate other quite distinct possibilities. One of these was that there was no concluded bet on either horse. If that were the case, the appellant would have been obliged to return the $9,000 which he had debited against the respondent on the footing that he had placed a losing bet for that amount on Tiny's Finito. However no such claim was made and both counsel made it clear to the learned trial judge that neither party alleged "mistake" and that neither party alleged that there was no contract. They appear simply to have litigated two competing assertions – one by the respondent that there was a binding bet placed on Tigers Image and the other by the appellant that there was a binding bet placed on Tiny's Finito. This tended to place quite artificial constraints upon the litigation.

6. However even on these limited pleadings, unless it is found that the learned trial judge erred in finding that a bet was placed by the respondent on Tigers Image, and accepted by the appellant, the judgment cannot successfully be challenged.

7. The learned trial judge considered that "every witness performed with honesty and utmost integrity" noting however that their evidence amounted to reconstruction of events based upon their knowledge and understanding of their usual practices.

8. The respondent gave evidence that he acted as a punter upon systems programmed into a computer. According to him the result of these systems with respect to the race in question was that three of the systems selected Tigers Image as the winner. He described the result as a "special, special, special", and in accordance with his staking system, tripled the stake. By the time of the seventh race (the one in question) his system required him to place $9,000 on Tigers Image. His evidence also asserted that his system at the time prohibited him from backing horses at shorter odds than 4 to 1. The odds on Tiny's Finito were 7 to 2, and accordingly it would have been impossible for him to have intended to back that horse. After trial of the action, while judgment was reserved, the appellant obtained leave to re-open the evidence and tender a letter written by the respondent dated 30 January 1989 detailing bets he had made on 21 and 28 January 1989. Those details demonstrated that a number of bets were made by him at that time at odds worse than 4 to 1. Thus, one of his self-serving assertions in relation to his system was falsified. At that stage, on reflection, the respondent thought that it was not until after the relevant time that he had strictly applied the rule against betting at such odds. The learned trial judge seems to have accepted the respondent's explanations and to have regarded the remainder of his evidence as sufficiently convincing to maintain his status as a credible witness.

9. In the course of submissions concerning the effect of the evidence, counsel for the appellant referred to other aspects in which the respondent's evidence should have been considered unsatisfactory. One of these is concerned with an assertion by him which was described as an attempt to provide self-corroboration. The respondent claimed that shortly before the race his wife told him that she had obtained odds of 11 to 2 on Tigers Image and that he had said in effect "Shivers I've only got fives". Shortly after giving that evidence, and still during his evidence in chief, he stated that he may have confused himself and that perhaps his wife had obtained fives, and that the odds had become 11 to 2 shortly after he had backed the horse. It is difficult to think that this was a wilfully false statement, as his assertion would inevitably be checked against the version of his wife who was one of his witnesses. In due course his wife gave evidence of a conversation consistent with the latter version. In the overall context of the trial we do not think that very much can be deduced from what may well have been momentary confusion on the respondent's part.

10. A criticism of greater substance is that the entirety of the respondent's evidence seems to have been based on general practice, reconstruction and perhaps supposition. In important matters (including the manner in which the bet was acknowledged) his evidence really consists of a series of alternatives based upon the usual ways in which bets placed by him were acknowledged by the appellant and by others. The fact that he was not prepared to state that he had an actual recollection certainly does not detract from any perception of his honesty; but the absence of particularity warrants considerable reservation in relation to his reliability. Other criticisms of his evidence include his failure to recall the name of the relevant horse on settlement day a week later, or the amount of the bet, or the name of the bookmaker with whom it had been placed.

11. Some of the appellant's evidence was expressed in the words of actual recollection although the trial judge's perception was that his evidence also was the result of reconstruction. The evidence called by the appellant included that of his penciller (Mr Hurwood), his ticket writer (Mr Stewart), his public enclosure bagman (Mr Barnes), and his members enclosure bagman (Mr Lindsay). The relevant betting records that were brought into existence demonstrate that the bet that was eventually recorded as having been made by the respondent was on Tiny's Finito at 7 to 2. The appellant's evidence was that he always immediately called the bet that had been made and did so on this occasion. It is of some interest to note that in the appellant's betting record (Exhibit 1) the initial entry that was pencilled in for this bet was in the column under "Tigers Image". It was however written into that column with the figures $31,500/$9,000, which would be the figures appropriate to the odds that were being offered with respect to Tiny's Finito. The entry just mentioned was struck out and the final record of the transaction appears in the column under "Tiny's Finito" with the respondent's name and again with the figures $31,500/$9,000. The maker of these entries (Mr Hurwood) explained that initially he had placed the bet in the wrong column under a combination of stress, noise and hurry, the error arising from the fact that both columns started with the letters "Ti…". He went on to explain that some five to seven seconds later Mr Barnes (one of the bagman) told him "John that wasn't Tigers Image it was Tiny's Finito" upon which he transferred the bet to the appropriate column.

12. The evidence of the various witnesses concerning the appellant's system suggest a series of calls between the bookmaker, the bagman and the penciller as a normal consequence of the placing of a bet, resulting in details of the bet being written down, and with such events normally happening in the presence of the punter. However the evidence was by no means uniform. Much of it suggests that the calls would be loud enough to have necessarily been heard by the punter, unless the punter turned away or ceased listening at a very early stage. The submission for the appellant is that if the evidence of the appellant's witnesses is accepted (and all the evidence was accepted as honestly given) the audible calling of "Tiny's Finito" could not possibly be taken as an objective acceptance of a bet on Tigers Image. The submission for the appellant, in the end, is that it was not reasonably open to the learned trial judge to accept the respondent's evidence that a bet on Tigers Image was made and accepted. His counsel submitted that cross-examination of the respondent showed that his so-called rules were there to be broken at will and that essentially they were his own personal creation. Such points were no doubt raised during the hearing and it would seem that they were not accepted by the learned trial judge.

13. Having reviewed the evidence we think that it was reasonably open to his Honour to find that the respondent intended to place his bet on Tigers Image and not on Tiny's Finito. Indeed it would seem that correspondence between the solicitors before trial resulted in a formal admission by the appellant that it was the respondent's intention on the day to back the horse "Tigers Image" and that that would not be an issue in the case. Counsel for the respondent submitted that but for this concession further evidence might have been adduced on behalf of the respondent in support of that conclusion. The learned trial judge found in favour of the respondent on this point. However on appeal counsel for the appellant suggested that the respondent might have changed his mind before placing the bet. We do not think it productive to pursue this question. The appellant's position would be supported as well by a submission that the respondent made a slip of the tongue and simply stated the name of the wrong horse namely "Tiny's Finito"; and that irrespective of the mental mechanism which caused him to do so, those were the words that he uttered. Such explanations are rational possibilities, but in the end they are far from determinative. We do not think that it can be said that his Honour erred in finding that it was probable that the respondent named "Tigers Image" as the horse on which he was betting. The more pertinent question is whether his Honour's finding that that bet was acknowledged by the appellant in some way is sustainable.

14. His Honour's eventual conclusion was that:

    "Either the [respondent] or the [appellant] made an error as to the name of the horse upon which the [respondent's] bet was placed and I am satisfied that it is more likely that it was the [appellant] who made that error".

    This conclusion was influenced to some extent by the appellant's concession that almost immediately before the bet was placed he had been speaking to a neighbouring bookmaker, Mr Dolan, about bets on Tiny's Finito and that that name was in his mind at the critical time. His Honour adverted to the improbability that the respondent would have mentioned the name Tiny's Finito, having already selected Tigers Image, and to the fact that it had been admitted that the respondent at least intended to place his bet on that horse. His Honour further noted that the conduct of the respondent thereafter on that day and on subsequent days was consistent only with his belief that he had backed Tigers Image and that he was entitled to recover a payout of $54,000. It was noted that the next bet made by the respondent was in the amount of $1,000, consistent only, in his Honour's view, with the respondent's belief in accordance with his staking plan that his previous bet had been successful.

15. A difficulty however arises from his Honour's satisfaction that the appellant's normal procedure had been adopted. Consequently, there are findings that at some stage the appellant called to his bagman "9,000 on Tiny's Finito for Mr Doyle", that the bagman responded "31,500 to 9,000 on Tiny's Finito W Doyle" and that the ticketer wrote out a ticket, which, after an initial error, was recorded as a bet on Tiny's Finito.

16. His Honour however reconciled these findings by accepting that those events must have occurred after the respondent had turned away and was out of hearing of the appellant.

    "I find further that the [respondent] had probably turned away and had moved far enough by that time to be out of hearing of what occurred between members of the [appellant's] team. There is clear evidence, amounting almost to common ground, that the betting ring was noisy and it is apparent that the [respondent] would not have to travel far to move out of earshot of the [appellant's] stand".

17. A further critical finding was that the appellant "having acknowledged the bet to the [respondent] then called the bet to his bagman Mr Barnes". His Honour did not make any specific finding as to the means of acknowledgment, and it is necessary for the purposes of this appeal to consider whether the evidence as a whole permits the upholding of the essential findings that, according to the probabilities, the appellant acknowledged the respondent's bet (on Tigers Image) and that the respondent turned away quickly enough to be out of hearing while the appellant's assistants called and recorded a bet on Tiny's Finito.

18. The respondent gave evidence that he always waited for acknowledgment and his evidence as to the form that that acknowledgment took was eventually given in the following passage:

    "As often as not it is simply a nod, literally an acknowledgment that, thanks very much, just literally a nod. It might be a ‘thanks’. At – one particular bookmaker who used to always wish me good luck, he'd say, ‘Good luck, Winston’. If, if for example I was going to have 5,000 on them and they didn't want five, they might say, ‘Well, we'll only take a thousand’, or, ‘I’ll have a thousand of that’ or, you know".

    His evidence continues that the winnings, stake, horse and his name were not invariably repeated back although he guessed that sometimes those details were repeated. In his dealing with the appellant the acknowledgment would be "the same sort of thing" as described above, such as "okay", "sure", "certainly" or "9,000 Tigers Image sure". The respondent would then record details in his own book. When he did that he "wouldn't be too far away. I could stand, turn around, look at the … odds and put it in – or do it … actually while I'm there facing him". He added that "as often as not I have watched the penciller pencil in the bet when I make the bet. That's my standard practice. If the penciller is there in front of me I watch the bet going in upside down".

19. His Honour's finding of probability that the respondent was out of earshot when the appellant and his agents carried out their system was influenced by the respondent's certainty that if he had heard anybody call out the name "Tiny's Finito" or the odds "31,500 to 9,000" he would have objected and corrected the matter. When the appellant's case was put to the respondent in cross-examination he responded that if that was said then it was said after he had turned away and was out of hearing.

20. Some support for this rationalisation can be found in evidence from other witnesses supporting the common practice of a quick, initial acknowledgment by the bookkeeper of a nod bet. Variations in practice were acknowledged according to whether the bet was placed in a confidential tone or otherwise. Speaking of the appellant's practice in relation to nod bets, Mr Lindsay described his conduct as "he'd just nod, you know. I mean, it was just instantaneous". He also agreed that the appellant's practice was either to say "you're on" or to nod and the bet was placed; that he would then call the bet to a bagman. Mr Hurwood agreed that commonly the nod punter and the bookmaker have a conversation in which the terms of the bet are settled, including whether he will take all of the bet or part only; that the bookmaker will then turn around to the bagman after the conversation with the punter has finished and that he will turn his back on the punter when speaking to the bagman. On the other hand Mr Barnes suggested that the normal practice was for the bookkeeper to "yell the bet out" once the terms of the bet were settled. He also agreed however that some punters do not want their larger bets yelled out and that such conversations may tend to be more confidential. He considered however that it was the responsibility of the punter to stay there and "listen to the bet". However he did not know whether the respondent was present when this particular bet was called out or not. On this point the appellant denied any initial form of acknowledgment other than the system of his call to the bagman who then calls to the penciller or the bookkeeper and that "when it comes back to me I repeat it, right, and [the respondent] should be standing there".

21. The respondent's wife gave evidence that she had occasionally placed credit bets and had never heard the bet being called back. She considered that punters generally did not want their bets called out to all and sundry especially when they were large bets. Another witness, a detective inspector who was an experienced punter, confirmed his understanding that such bets generally were private business between the nod punter and the bookmaker.

22. It has been earlier noted that the parties to this litigation disclaimed such possibilities as mistake or a lack of meeting of minds. There was in our view sufficient evidence to support findings that:

    (a)         the respondent offered the appellant $9,000 as a bet on Tigers Image, stating the name "Tigers Image";

    (b)        the appellant probably gave one of the immediate acknowledgments described by the respondent such as a "nod" or a "thanks" or an "okay"; and

    (c)         the respondent must have turned away before the appellant and his assistants proceeded to call a bet on a horse of a different name.

    The evidence is not such as to satisfy us that the critical finding of acknowledgment of the respondent's bet should be set aside or that this Court should now substitute alternative findings that the respondent named "Tiny's Finito" and that the appellant acknowledged that bet in his presence.

23. The appeal should be dismissed with costs, including reserved costs, to be assessed.