Ng v McLauchlan - [2024] VSCA 160

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0055

ALLEN NG	Applicant
v
DAVID IAN MCLAUCHLAN	Respondent

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JUDGES:	KENNEDY, MACAULAY and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2024
DATE OF JUDGMENT:	10 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 160
JUDGMENT APPEALED FROM:	[2023] VCC 483 (Judge Trapnell)

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GAMING AND BETTING – Statutory interpretation – Authorisation of gambling – Breach of r 4.2 of the Bookmakers’ Telephone Betting Rules 2001 (‘Telephone Betting Rules’) – Telephone bets placed without signed authority of client and without lodging authority with Racing Victoria – Gambling unauthorised unless authorised – Whether bet placed in breach of r 4.2 of Telephone Betting Rules is ‘unauthorised gambling’ – Wagering agreement void if related to ‘unauthorised gambling’ – Telephone bet in breach of r 4.2 of the Telephone Betting Rules is ‘unauthorised gambling’ and underlying agreement void under s 2.4.1 of Gambling Regulation Act 2003 – Leave to appeal granted – Appeal allowed.

Gambling Regulation Act 2003, ss 1.1(2), 2.2.1, 2.2.2, 2.4.1; Racing Act 1958, ss 4, 4A; Bookmakers’ Telephone Betting Rules 2001, rr 4.1, 4.2.

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, applied.

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Counsel
Applicant:		Mr M Clarke KC with Ms V Plain
Respondent:		Mr D Sheales with Mr T Purdey
Solicitors
Applicant:	Lim & Tng
Respondent:	Aintree Group Legal

KENNEDY JA
MACAULAY JA
LYONS JA:

Introduction

This application concerns the entitlement of a registered bookmaker, Mr David McLauchlan (the ‘respondent’), to recover $150,000 for unpaid telephone bets placed by Mr Allen Ng (the ‘applicant’) on 14, 15 and 18 April 2020 (the ‘relevant telephone bets’). This is in circumstances where the respondent admitted that he failed to obtain a signed authorisation to accept telephone bets from the applicant and failed to lodge that form with Racing Victoria Limited (‘Racing Victoria’) in breach of rr 4.1 and 4.2 of the Bookmakers’ Telephone Betting Rules 2001 (the ‘Telephone Betting Rules’) (the ‘r 4 breaches’).
The determination of that entitlement depends upon the proper interpretation of relevant provisions of statutes and subordinate instruments relating to gambling and the racing industry in Victoria and, ultimately, whether the relevant telephone bets were ‘unauthorised gambling’ with the result that the underlying agreements relating to those bets are void pursuant to s 2.4.1 of the Gambling Regulation Act 2003 (the ‘Gambling Act’).
A judge of the County Court found that the respondent was entitled to recover the debts relating to the relevant telephone bets, concluding that these bets did not constitute ‘unauthorised gambling’ under the Gambling Act, notwithstanding the r 4 breaches.[1] The applicant now seeks leave to appeal and (if leave is granted) to appeal from that decision.
[1]McLauchlan v Ng [2023] VCC 483, [65] (Judge Trapnell) (‘Reasons’).
For the reasons that follow, we have concluded that, by reason of the failure to comply with r 4.2 of the Telephone Betting Rules, the…

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 Ng v McLauchlan

Details

AGLC: Ng v McLauchlan [2024] VSCA 160
Case: [2024] VSCA 160
Decision Date: 10 July 2024

CaseChat Overview and Summary

In Ng v McLauchlan, the Supreme Court of Victoria considered the validity of a wagering agreement in light of the alleged breach of regulatory provisions governing bookmakers' telephone betting. The respondent, McLauchlan, sought to enforce a betting agreement with the appellant, Ng, while Ng contended that the bet was void due to a failure to comply with certain regulatory requirements. The central issue before the court was whether a bet placed in breach of the relevant rules constituted 'unauthorised gambling', rendering the underlying wagering agreement void under the Gambling Regulation Act 2003.

The court examined whether the telephone bet placed by Ng was authorised under the Bookmakers’ Telephone Betting Rules 2001. It was established that the bet was placed without the requisite signed authority from the client and without lodging the necessary authority with Racing Victoria. The court considered the statutory language and the requirement that gambling must be authorised to be lawful. The court held that the failure to comply with rule 4.2 of the Telephone Betting Rules meant that the bet was placed in breach of the rules and therefore constituted 'unauthorised gambling'. Consequently, the underlying wagering agreement was void under section 2.4.1 of the Gambling Regulation Act 2003.

The Supreme Court concluded that the bet in question was indeed unauthorised, as it did not adhere to the necessary regulatory requirements. The court found that the bet was void, and the wagering agreement was unenforceable. The court granted leave to appeal and allowed the appeal on the basis that the bet was unauthorised gambling under the statutory scheme, thereby rendering the agreement void. The court's reasoning was grounded in the strict interpretation of the statutory provisions and regulatory rules, ensuring that compliance with the rules was mandatory for the legality of the bet.

Orders