Newham Diamond Leisure Pty Ltd

[1995] HCATrans 94

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No  D7 of 1994

B e t w e e n -

ALAN C. NEWHAM

Applicant

and

DIAMOND LEISURE PTY LTD

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 APRIL 1995, AT 2.16 PM

Copyright in the High Court of Australia

MR A.R. EMMETT, QC:   May it please your Honours, I appear with my friend, MR R.J. BRENDER, for the applicant. (instructed by Barr Moore & Co)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR K.P. LIVESLEY, for the respondent. (instructed by Philip & Mitaros)

DAWSON J:   Mr Emmett.

MR EMMETT:   If it please your Honours.  It is sometimes said, I am sure quite irreverently and without justification, that special leave applications are a bit of a lottery.  That, however, is no reason why leave should be refused in this case.  Your Honours, the case involves ‑ ‑ ‑

TOOHEY J:   You mean there are other reasons why it should be refused?

MR EMMETT:   With respect, no.  Your Honours, there are two quite independent questions that are raised by the prospective appeal in this case, each of which is important perhaps for different parts of the community.  The first concerns the proper construction of the legislation relating to cheques and it is something which is of, in our submission, considerable significance to the commercial community as well as ordinary members of the community.  The question of what sort of writing is required on a piece of paper is of significance, of course, to any banker.  If a piece of paper is received which, on its proper construction, is a cheque and the banker declines to honour it, then he may well be liable to his customer for dishonouring a cheque improperly.  On the other hand, of course, if he honours a cheque which is not a piece of paper which is not a cheque, then he will be liable for breach of the mandate.  It is a short point, of course, but it is a matter, in our submission, of some significance for those reasons.

TOOHEY J:   Does it have any significance beyond the form of documentation adopted by the casino for its own purposes?

MR EMMETT:   With respect, yes, your Honour.

TOOHEY J:   I appreciate the argument that it could have if that wording were used on other occasions and for other purposes, but is there anything to indicate that it is?

MR EMMETT:   We are not aware of any instance where a similar word is used in common practice in any other context.

DAWSON J:   It is unlikely to be after this case, is it not?

MR EMMETT:   It may well be after this case.  If the Full Court of the Northern Territory is correct, then one can use these words.  That, of course, raises the question as to whether or not the Full Court is correct.  It is a matter which, in our submission, ought to be dealt with authoritatively by your Honours.  It is a piece of legislation of national importance and a matter that is of concern to all, at all levels of the community.

The second ground or basis upon which leave is sought, as I said, perhaps affects a different part of the community.  It concerns the extent to which legislation, which is clearly intended to serve a social purpose, should be construed in order to achieve that purpose.  There are, on one view, two questions involved in the application of the legislation in the Northern Territory relating to unlawful gambling.  The questions turn on the construction of section 12 of the Casino legislation which is set out on page 3 of the applicant’s summary of argument.  There are, in effect, two questions that may be raised:  the first concerns the last few words of the section itself, that is, whether or not proceedings could have been brought if the Act had not been enacted.  That raises, on one view, the question of the operation of the principles that were stated by this Court in Yango, although the decision in Yango was to the effect that the prohibition did not render that particular contract void.  The distinction here, of course, is between a statute which is designed to deal with the economic well‑being of the community in regulating banks, and not a statute which was concerned with the regulation of contracts between banker and customer.

The Court in Yango said that notwithstanding that a bank might be carrying on business unlawfully, the statute was not concerned with the particular type of transaction which was in issue in those proceedings and, therefore, the Court held there was no basis for striking down the contract itself.  That, however, is not the situation with legislation dealing with gambling.  Gambling is seen by some to be an undesirable aspect of community conduct and to that extent legislatures in all States have for some time enacted legislation designed to regulate the way in which gambling should be carried on.

That legislation in the Northern Territory includes section 135 of the Racing and Betting Act, which is referred to in paragraph 19 of our written summary.  We should also draw attention to section 4 of the Unlawful Betting Act, legislation which came into force shortly before the facts that are relevant to these proceedings.  There is a certain overlap between the provisions of the Racing and Betting Act and the Unlawful Betting Act.  They contain provisions which render void and unenforceable, in effect, contracts of gambling.  It is quite clear, in our submission, that when one considers the definitions in both pieces of legislation that betting includes gambling with cards.  That can be seen, for example, from the definition of “instrument of betting”.  An “instrument of betting” is defined in both statutes as including a card capable of being used in connection with betting, so that card games are clearly contemplated as being within the concept of betting.            The games at which the present applicant lost his money were both card games.

Our submission is, and this appears to have been accepted by the Full Court, although it was not accepted by the trial judge in the Northern Territory, that the effect of section 135 or section 4 of the Unlawful Betting Act or perhaps both of them, is to render void and unenforceable a contract by way of gambling.  Therefore, gaming at cards, namely, baccarat or blackjack, would but for the enactment of section 12 of the Casino legislation have been unlawful.  So that in that way, either by the operation of the principles of the common law referred to in Yango, combined with sections 42 and 45 of the Lotteries and Gaming Act or, alternatively, by the express provisions of section 135 of the Racing and Betting Act or section 4 of the Unlawful Betting ‑ ‑ ‑

DAWSON J:   You say that this betting would be unlawful if it were not for the Casino Licensing and Control Act and, therefore, if you look at, say, 135 it is a contract in relation to unlawful betting.

MR EMMETT:   No, that is not quite the argument.

DAWSON J:   That is what I was wondering.

MR EMMETT:   No, section 12 strikes down ‑ ‑ ‑

DAWSON J:   The contract in respect of unlawful betting apart from the Casino legislation.

MR EMMETT:   Yes, betting on card games such as baccarat or blackjack would be unlawful betting.

McHUGH J:   Well, that argument assumes that both blackjack and baccarat are games which either are, or are intended to be, games of chance or are partly of chance and partly of skill and the proportion of skill does not predominate.

MR EMMETT:   They are findings below to that effect which were not challenged on appeal.  So, there is no argument about that, that blackjack and baccarat are games either of chance or in which chance predominates.  And we have given a reference earlier in our written outline to the finding of the trial judge to that effect.  So, what we say is, those games are games of chance.  Betting on them is, therefore, unlawful betting within section 4 or section 135.  Alternatively by the operation of section 42 of the Lotteries and Gaming Act which expressly ‑ perhaps I should take your Honours to that provision;  it is set out in the application book ‑ I am terribly sorry, section 42 is not set out in the application book.  I understand, however, your Honours do have the Lotteries and Gaming Act 1982.

DAWSON J:   Section?

MR EMMETT:   Section 42, it appears on page 22 of that statute:

For the purposes of this Part ‑
.....
(b) a game ‑

(i) which is or is intended to be a game of chance;  and

(ii) which is partly chance and partly skill and the proportion of skill does not predominate,

played with an instrument, contrivance or device whereby money is or goods are gained or disposed of or is or are pretended to be or is or are capable of being gained or disposed of;

(c) a game played with an instrument of gaming from which a person derives a percentage.....

are unlawful games.

We rely on 42(b).  It is clear that these are games which are intended to be games of chance or games in which the proportion of skill involved does not predominate.  So, they are unlawful games and, relying on the principles in Yango, we say that the declaration of those games to be unlawful, coupled with the sanction referred to in section 45 ‑ ‑ ‑

DAWSON J:   They are only penalties, though.

MR EMMETT:   Which are penalties, yes.  There is no express provision in this route which leads to avoidance and that is why we rely on the principle enunciated in Yango (1978) 139 CLR 410, and perhaps I should refer your Honours to the passages which we take to be material. Sir Harry Gibbs, when acting as Chief Justice, said at 413, in the middle of the page:

It is often said that a contract expressly or impliedly prohibited by statute is void and unenforceable.  That statement is true as a general rule, but for complete accuracy it needs qualification, because it is possible for a statute in terms to prohibit a contract and yet to provide, expressly or impliedly, that the contract will be valid and enforceable.  However, cases are likely to be rare in which a statute prohibits a contract but nevertheless reveals an intention that it shall be valid and enforceable, and in most cases it is sufficient to say, as has been said in many cases of authority, that the test is whether the contract is prohibited by the statute.

DAWSON J:   Of course, an action on the cheque is really at one stage removed from the contract, is it not?  You will come to that later on.

MR EMMETT:   That is in effect what Mr Justice Mildren held.  He appears to have accepted that if this had been an action simply for recovery of the losses, it would have been within section 12, but he said that it goes beyond that.  To that extent we differ from what his Honour found in the construction of section 12, but in effect his Honour was with us in relation to the matters I am addressing at the moment.  Mr Justice Priestley simply agreed with the conclusions of Mr Justice Mildren in that regard.  So that in a sense we have a finding in our favour on the unlawful illegality point.  The only question is whether the fact that the action was held to be an action on the cheque is sufficient to take it outside section 12.

Just to finish on this point, we have two quite alternative ways of getting to the conclusion that the last line of section 12 is satisfied, that is but for section 12 this action would have been prohibited.  The first is sections 42 and 45 coupled with the Yango principle.  The second is section 135 of the Racing and Betting Act or, alternatively, section 4 of the Unlawful Betting Act.  Perhaps I should, just before I finish this point, take your Honours to that language.  Section 135 is set out in the application book at page 76:

(1) All contracts or agreements.....in relation to unlawful betting are null and void -

Our submission is that the definition of “betting” is wide enough to include betting on cards by reason of the definition of “instrument of betting” which includes cards which are capable of being used for unlawful betting.  Almost identical legislation appears in section 4 of the Unlawful Betting Act.  So that we say by that route one finds that betting on card games would also, but for the enactment of section 12, be null and void and an action to enforce such a contract would therefore ‑ ‑ ‑

DAWSON J:   What would the contract be here:  the contract to purchase the chips?

MR EMMETT:   That itself involves a question as to what the proper analysis is of the arrangements between gambler and casino.  We say that when one looks at the position there is really only one contract.  The exchange of the piece of paper for the cheques is part of one contract whereby the gambler, the punter, is enabled to gamble within the casino.  The effect of the enforcement of the piece of paper is simply to recover the wager that was lost in the gambling.

DAWSON J:   That is the second point you have gone on to.

MR EMMETT:   That is right, it leads into the second point.  The primary proposition though is that but for section 12, which made gambling at the casino lawful, section 135 or section 4 would have struck down any contract and it goes on to provide that no action should be brought or maintained in a court for recovering money or a valuable thing alleged to be won.  Money is defined as including a cheque.

In our submission, section 135 would, but for section 12, clearly strike down this action; make it not capable of being maintained.  That then brings us to, in effect, the second matter with which we differ from the Full Court but the third issue that no doubt your Honours would have to consider and that is the proper construction of section 12.  We rely on either any one of the three subparagraphs of section 12, going back to page 65 of the application book.

DAWSON J:   It is the casino that won in this instance.

MR EMMETT:   The casino won in this case, that is right.  It would be permissible, if the punter had won, then he can sue the casino.  It is a one‑sided piece of legislation indicative, of course, that it is intended to be beneficial and protective of people who the legislature thinks cannot look after themselves.  One of the matters that we rely upon is a suggestion that the true construction of this statute is of significance.  That is to say, if the Full Court is correct, it really is an example of the form triumphing over substance because when one looks at what is intended to be struck down in paragraphs (a), (b) and (c) at the top of page 66 of the application book:

A person shall not.....bring legal proceedings to recover -

(a)  money won at gaming in the casino;

And the first way in which we would put the matter is that when you look at what was happening, the exchange of paper for chips was just the means whereby gambling was facilitated.

DAWSON J:   I see your time is up and we have your written submissions and we have read them.  Thank you, Mr Emmett.

MR EMMETT:   May it please your Honour.  There were some matters that I would have dealt with in my learned friend’s written outline.  Perhaps I will deal with those in reply.

DAWSON J:   Yes, thank you.  Mr Jackson.

MR JACKSON:   Your Honours, may I deal firstly with the question of the term “payable”.  Your Honours, we would submit that no matter how one tries to dress it up this is no more than a case of the meaning to be attributed to an ordinary English word in a particular special context.  There is nothing to suggest that the issue is of common occurrence or is likely to recur.  Your Honours, further we would submit the view taken by the majority is the better view of the meaning of the term in the context.

Your Honours, one has a document that looks like a cheque and is to be presented to a banker.  That seems, with respect, a little unbelievable, we would submit, to think that the banker would treat it as being just an authorisation as distinct from a direction to pay.  May we refer your Honours to the submissions we have made in paragraphs 7, 8 and 9 of our summary of argument in dealing with this issue.  Your Honours, paragraph 7 deals with the extent to which the issue is one which might arise in the future and paragraphs 8 and 9 deal with the substance of the matter.

Your Honours, may I turn then to the question of illegality and the submissions which I wish to address to the Court on this issue deal with two aspects:  one being the extent to which the result arrived at in the courts below is or, as we would submit, is not attended by sufficient doubt to merit the grant of special leave and, secondly, the extent once again to which the issue is one which is of general application, turning as it does in relation to its second aspect, upon the interrelationship of a number of quite complicated statutory provisions which have changed since the events in question.

May I come to the first of those matters, your Honours, the extent to which the issue is attended by sufficient doubt.  Your Honours, we would submit if one looks at the combination of sections 12(1) and 12(5) in the Casino Control Act, it is apparent from those provisions that the playing of the games in the casino is made lawful and that the restrictions and the only restrictions on enforcibility of agreements entered into in relation to those games, the only restrictions are those referred to in section 12(5) itself.

DAWSON J:   But if the Act had not been enacted they would have been unlawful, that is the point, is it not?

MR JACKSON:   Your Honour, that is the point that arose in relation to the second aspect of it.  I wish, if I may, just for the moment to deal with the first aspect, that is, the question whether the case in any event as it has to be demonstrated falls within paragraph 5(a) (b) or (c).  And, your Honours, if one looks at section 12(5)(a) (b) and (c), the primary judge, in our submission, was right in taking the view, as she did, that none of those requirements was satisfied.

Your Honours, we have set out the terms of that subsection in paragraph 11 of our summary of argument and your Honours will see that, in relation to those provisions, what we would submit is that the terms of section 12(5) in those three paragraphs, make it apparent that what is being spoken of - and, your Honours, I am endeavouring to summarise what we have in paragraphs 14 to 16 of our summary of argument - if one turns to paragraph (c), it is speaking of proceedings which are to recover a loan of money which has been made in order that a game might be played.  And the other two provisions, (a) and (b), relate to circumstances where what is being sued for is the money which has been lost or what is being sued for is a cheque which has been given to pay for the amount of the loss.  And, your Honours, those provisions, in our submission, simply do not apply to the present situation.

McHUGH J:But why not?  The document was not a cheque until it was completed and when you completed it it became a cheque that was given in payment of money - - -

MR JACKSON:   Well, your Honour, it was always given as a document, together with the authority to complete it, so it was not something that was given, in effect, as a blank document with nothing else; it was a document ‑ ‑ ‑

McHUGH J:But it was not a cheque.  It became a cheque only after there were losses and those losses had not been paid.

MR JACKSON:   Your Honour, it is correct to say it did not become a cheque until after the name of the bank was put in and the branch and that was after the losses had been sustained, but having said that, your Honour, it was not a document which was given in circumstances where it was not to have immediate legal effect.  Immediate legal effect was constituted by (a) the document together with the authorisation to complete it and that such a document is a document which is for the purposes of the Cheques and Payment Orders Act by section 18 a document where the authority - it would only not be a cheque, in effect, if the completion of the additional particulars did not take place until after a reasonable time, but one is not talking about something that in a sense was given with a conditional operation.  There was an irrevocable authority to complete it.

McHUGH J:   But if on the 15th day a cheque had been given to your client then section 12(5)(b) would have prohibited any action on it.  You take a piece of paper beforehand and it is filled in the day after the 14 days expire and you say, “I am outside the Act.”  That really is the triumph of form over substance.

MR JACKSON:   I can put it that way, of course, but what I would seek to say about it is this, that if one looks at what is contemplated by section 12, it recognises there will be a casino.  The essence of casino is that people play games in there.  So it becomes a question then of identifying in what circumstances there will or will not be permitted to be recovery by the casino operator or another gambler who had gambled with another gambler there and so on.

McHUGH J:   But one has got to look at the whole policy of this section and surely the whole purpose of the section is designed to protect people from themselves such as this applicant, a heavy drinker, makes out cheques, loses $600,000 in a casino.

MR JACKSON:   But the finding was that he was not affected by liquor.

McHUGH J:   I know it says he was a heavy drinker, he was his usual obnoxious self, but really he is the very person that this section is designed to protect.

MR JACKSON:   Your Honour, can I just say this.  If one starts by looking at the words of section 12(5), what the words deal with is circumstances where a person is, in effect, allowed to gamble without putting up his own money first up or is provided with money, and that is really all it says.  That is the policy.  Now, your Honour, that is not what happened in this case.  Your Honours, that is the ‑ ‑ ‑

McHUGH J:   If you applied Lord Denning’s test to this legislation, I think you would be in trouble.  If the legislature was asked did they intend to deal with this situation, they would say, “Yes, of course, we intended to deal with it.  Don’t be absurd.  The idea that we are just prohibiting you from taking a cheque for gambling losses but you can do it in two stages ‑ ‑ ‑”

MR JACKSON:   Well, your Honour, they could have adopted forms in use in other jurisdictions.

McHUGH J:   I know they could.

MR JACKSON:   And, no doubt, they took some advice about the right form of legislation to have.  But, your Honours, could I also say in relation to this aspect, that if that view is not the correct characterisation of it ‑ that is the view adopted by the primary judge ‑ there remains the view that was adopted in the Court of Appeal where your Honours will see at page 79 - if I could take your Honours to that for just a moment, and your Honours will see at lines 1 to 8 ‑ your Honours, I will not read it out, of course, but what your Honours will see is that the view taken there is that the cause of action was not a cause of action falling within section 12(5), (a), (b) or (c) for the reasons that are there set out. 

So, essentially the argument ‑ the point I am seeking to make about this aspect of section 12(5) is that, in order for the applicant to succeed, the applicant really has to get over the hurdles of both of those arguments.  Your Honours, if I could move from that - if I could say, your Honours, that in our submission that issue is not one that merits special leave in terms of the question whether the result arrived at was right or not but, in relation to the importance of the issue, could I take your Honours to paragraph 21 of our summary of argument.  What your Honours will see there is that we would submit that that issue arises, in any event, only in relation to a particular form of transaction which was adopted at a particular time and, we would submit, is not of general importance.

McHUGH J:   But, it applies in the Northern Territory and Western Australia, those two jurisdictions.

MR JACKSON:   With nothing to show, your Honours, that this form of transaction is any longer adopted.

McHUGH J:   Oh, I see.

MR JACKSON:   That is what I am seeking to say.  And, your Honours, it is a particular form of transaction and there is nothing to show that it ‑ and one might think that, in the light of this case, it is unlikely to be.

McHUGH J:   In the light of the Full Court decision, it is likely to be adopted all the time.  It is a wonderful device.

MR JACKSON:   Your Honour, prudent people would advise them never to use it again whatever be the merits of it.

McHUGH J:   They have a Full Court decision in their favour.  It is a charter to get the gamblers’ money.

MR JACKSON:   Your Honour, that, with respect, overstates it, if I may say so.

McHUGH J:   Well, you give them a document and you do not fill in the name of the bank until after the losses and then you say, “Well, now we’re outside the Act”.

MR JACKSON:   Your Honour, they give us a document ‑ ‑ ‑

McHUGH J:   Well, they give you a document.

MR JACKSON:   ‑ ‑ ‑and they give us an authority to fill it in and they come and we expect them to pay, your Honour, after they have won and lost and so on.  But, your Honour, could I move on then to the second requirement which has to be satisfied in order for the action not to be maintainable and that is whether the concluding words of section 12(5) have any relevant operation.  Your Honours, that is not really a matter which could be dealt with in just one word and we have endeavoured to deal with it in paragraphs 22 and following of our written submissions.  I wonder if I might take your Honours to that. 

Your Honours, reliance is placed upon section 135 of the Racing and Betting Act but there are really two things about the Racing and Betting Act.  The first is that it was one of two enactments which came into force in the Northern Territory in 1982 and 1983.  One was the Racing and Betting Act;  the other was the Lotteries and Gaming Act.  The Racing and Betting Act contained a provision which was section 135; the Lotteries and Gaming Act which one might have thought, simply by its title for a moment, was more apt to situations of this kind than the Racing and Betting Act, contained no such provision.

The second feature, which I will come to in just a moment, your Honours, is that the provisions of the Racing and Betting Act, which might have been thought to be apposite to if any provision were, to give content to the meaning of unlawful betting, were themselves removed from the Act before the events giving rise to the present case.  Your Honours, could I say, in relation to section 135 which your Honours will see set out at paragraph 24, that it referred to contracts or agreements in relation to unlawful betting.  And there was also section 85 of the Act, which your Honours will see in paragraph 25, which said the opposite, that you could sue in relation to things which were not unlawful betting. 

Unlawful betting, as your Honours will see set out in section 4(1), was betting otherwise than in accordance with this Act.  And that provision, your Honours, could be construed in two ways:  one broadly as covering any type of betting at all that was not dealt with in a way provided for by the Act, or it could be dealt with as a provision or it could be given meaning as a provision which had relevance to the particular types of conduct which were prohibited by that Act.

Your Honours, that, in our submission, was the better view of that Act.  Could I say in particular that the provision which really gave content to the meaning of both section 135 and section 85 was section 84 which your Honours will see set out in paragraph 27 which was the provision that said you could not bet with anyone - if you were not a bookmaker; you could not bet with anyone except with a bookmaker.  The first submission we make in relation to those provisions is the one that is set out in paragraph 28 that what was contemplated by “unlawful betting” in that Act, and section 135 of it in particular, was betting that contravened a prohibition set out in that enactment.

Your Honours, the relevant prohibitions were, as your Honours will see in paragraph 29, taken out of that Act and taken out of that Act some months before the events in question.  When they were taken out they were then re‑enacted in the Unlawful Betting Act.  Could I take your Honours to that for just a moment.  But the significant feature about the Unlawful Betting Act was that when one goes to it, what one sees in section 4 of the Unlawful Betting Act is that whilst it contains a provision saying that “a contract or agreement relating to unlawful betting is null and void”, there is then the specific provision immediately preceding it in section 3(2) of that Act saying that nothing in that Act is to be construed as making unlawful anything permitted by or under the Casino Licensing and Control Act.

Your Honours, it would be possible - but in the event, in our submission, in the light of the legislative history, a somewhat tortured construction - to take the view that the concluding words of section 12(5) meant that you had to take no account of that change and no account of section 3(2), because it seems clear enough that what the legislature was intending to do was to say that the provisions of section 135 now re‑enacted in section 4 did not apply in relation to the operation of the casino at Darwin.

If I could move on then, your Honours, to paragraph 35 of our written submissions.  What we would submit is that section 135 did not have the effect that in terms of section 12(5) the legal proceedings were ones which could not be brought if the Act had not been enacted.

TOOHEY J:   Mr Jackson, in that regard there is a passage in Justice Mildren’s judgment at page 79 that I have some difficulty with.  He begins by saying four or five lines down the page:

The actions are not legal proceedings to recover “a loan.....but the causes of action sued upon are not to recover the loans but to enforce securities.....If I am wrong in this conclusion -

then the cause of action is not caught by what he describes as the “pendant words of section 12(5)” because:

The history of s135 of the Racing and Betting Act shows that it does not apply to cheques given as collateral security to such loans.

Is there not some sort of inconsistency in that reasoning?

MR JACKSON:   Your Honour, could I just say the first thing is this:  what his Honour seems to be saying is that it is only if he makes the assumption that they fall within 12(5)(c) that one has to then look at section 12(5), the concluding words.  What he then seems to say is that if you look at that, it is speaking about the direct operation as distinct from operation on collateral security.  That is all he is saying, I think, your Honour.  I do not know that there is any more to it than that.  Your Honour, could I just say another thing about it though and that is that the history to which I referred, that is, of the filleting, if I can use that expression, of the Racing and Betting Act and the incorporation of it in the Unlawful Betting Act with the qualification was not referred to in the Court of Appeal at all, and by that I mean by counsel as well as by the court, so that the decision below seems to be really based in a sense on the court

not having been taken to something that was in any event, in our submission, more in our favour.  That is why I use the expression the result is correct.

Your Honours, could I just say something then about the sections 42(b) and 45 of the Lotteries and Gaming Act.  The provisions are set out in paragraph 36 of our summary of argument and what we would submit is as we say in paragraph 37, that in the light of the two matters there referred to, including particularly the fact that the situation was entirely statutory in the Northern Territory about the time we are talking about and the specific references to the effects of illegality on contracts in the various statutes and the absence of any such specific reference in relation to those two provisions of the Lotteries and Gaming Act that one would hesitate before drawing the conclusion that invalidity followed from them.  Your Honours will see we have summarised our submissions in paragraphs 39 and 40.

DAWSON J:   Thank you, Mr Jackson.  Mr Emmett.

MR EMMETT:   If I could deal briefly with that last point, that is whether or not, on a fair reading of the statute, one could consider that the gaming contract was intended to be rendered unenforceable under the general law.  Can I read two other passages from Yango, 139 CLR 410, at page 414, another part of Sir Harry Gibbs’ judgment. At the top of the page:

One consideration that has been regarded as important in a great many cases.....is whether the object of the statute - or one of its objects - is the protection of the public.  An antithesis is commonly suggested between an intention to protect the public and an intention simply to secure the revenue, and it is said that when the former intention appears the contract must be taken to be prohibited, whereas if the intention is only to protect the revenue the statute will not be construed as imposing a prohibition on contracts.

It is clear, in our submission, that the provisions of the betting legislation are designed to protect the public and, therefore, on a fair reading they would be construed as striking down the transactions quite apart from the express provisions, as I say, of section 135 or section 4.

My learned friend correctly said that section 4 and, generally, the provisions of the Unlawful Betting Act were not referred to before the Full Court.  They appear to have been overlooked but, if anything, they strengthen the present applicant’s case because it is quite clear that even if, as the trial judge found, section 135 of the Racing and Betting Act is limited to dogs and horses, or gambling on the outcome of the races between dogs and horses, it is quite clear that the Unlawful Betting Act is not so limited and therefore in a sense the fact that that legislation was not referred to below assists the applicant in its present submissions.

Your Honours, there were several other matters to which my learned friend has not adverted in oral argument which were referred to in his written document.  They are matters upon which I would take some time briefly.

DEANE J:   You may take some time to reply to whatever submissions he put or however he put them.

MR EMMETT:   May it please your Honour.  In paragraph 15(a) on page 5 of my learned friend’s written document, it is said:

In return the applicant received an acknowledgment that he had given value to the respondent for the value of the instrument, and might utilise the value in obtaining chips with which to gamble, utilise other facilities of the respondent -

That seems to be a misapprehension.  There was evidence below which was reported in the appeal book that the chips could only be used for gambling and could not be used for other facilities.

DAWSON J:   But he could cash in the chips, I suppose.

MR EMMETT:   I beg your Honour’s pardon?

DAWSON J:   You can cash in the chips, can you not?

MR EMMETT:   Yes, but that is all you can use them for.  You can use them for gambling or you can use them for getting cash back.  You cannot utilise the other facilities of the respondent with the chips.  There is express prohibition in the rules that deals with that.  I see the orange light has come on, your Honour.

There was also a reference to the fact that there was no loan to him of money with which to play a game in the casino; that suggests that my learned friend is also contending that the court below was wrong in its analysis and that suggests that it would be unsafe therefore to allow the judgment to stand.

Paragraph 18:  my learned friend, it appears to us again, misconstrues what Mr Justice Mildren was saying.  In the middle of that paragraph, he says:

On Mr Justice Mildren’s view even a person who had paid cash to the casino on arrival would be receiving a loan from the casino when acquiring chips.

If one looks at the passage, that is simply not quite what is said.  The passage is at page 69 of the application book.  At line 17 - and this is a citation from Lord Justice Nicholls in the Court of Appeal in Lipkin Gorman v Karpnale Ltd:

As tokens, the chips indicated that the holder had lodged cash with the club or, when a cheque had been used, had been given credit by the club -

Now it is quite clear that what is being said there is that it is only when you are using a cheque that you are being given credit.  It is not being said that a person who has paid cash is receiving a loan.

McHUGH J:Well, in effect, you buy them if you are paying cash.

MR EMMETT:   Well, that is one view and, in effect, if one looks at the first page of the application book, it is an action for the payment of a price for the chips which, with respect, is simply ludicrous.  You do not buy the chips because property in them always remains in the casino.  They are simply the facility or the means whereby you are allowed to gamble.

DAWSON J:   The red light is one, Mr Emmett.

MR EMMETT:   May it please, your Honours.

DAWSON J:   The Court will take a short adjournment to determine the course which is to be taken.

AT 3.04 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.08 PM:

DAWSON J:   This application raises no point of principle which would attract special leave to appeal.  We would add that we see no reason to doubt the correctness of the decision of the Court below that the instrument in question when completed constituted a cheque.  Accordingly, special leave to appeal will be refused.

MR JACKSON:   I would ask for costs of the application, your Honour.

DAWSON J:   With costs.

AT 3.08 PM THE MATTER WAS CONCLUDED