O'Shea Bookmaking Pty Ltd t/as TexBet v Argeres

[2025] NSWSC 1137

Supreme Court

New South Wales

Medium Neutral Citation:

O’Shea Bookmaking Pty Ltd t/as TexBet v Argeres [2025] NSWSC 1137

Hearing dates:

20 August 2025

Date of orders:

1 October 2025

Decision date:

01 October 2025

Jurisdiction:

Common Law

Before:

Ball JA

Decision:

(1)   The time for filing of the appeal be extended to 10 April 2025.

(2)   The appeal in respect of Sequences 3 to 6 is allowed.

(3)   The orders of the Local Court made on 25 September 2024 in respect of Sequences 3 to 6 are set aside and in their place order that verdicts of acquittal are entered in respect of Sequences 3 to 6;

(4)   The appeal in respect of Sequence 7 (as amended) is dismissed.

(5)   There be no order as to costs.

Catchwords:

CRIME – appeal against conviction – offences under Betting and Racing Act 1998 (NSW) (BR Act) ss 33HA(1) and 33JC(4) – online gambling – failure by licensed betting service provider to close betting account after request from betting account holder – direct marketing of gambling advertisements to betting account holder without consent – where licensed betting service provider operated in NSW – where betting account holder resides in Victoria

STATUTORY INTERPRETATION – legal presumptions – presumption of territoriality – application of presumption in criminal cases –whether ss 33HA(1) and 33JC(4) operate extraterritorially where account holder resides in Victoria – application of Crimes Act 1900 (NSW) s 10C – territorial nexus – determining physical elements of offences – application of Interpretation Act 1987 (NSW) s 12 in criminal cases – appeal allowed in respect of conviction under s 33HA(1)

Legislation Cited:

Betting and Racing Act 1998 (NSW), ss 4, 16, 33HA, 33JC

Betting Control Regulations 1978 (WA), Pt 3A

Crimes Act 1900 (NSW), Pt 1A

Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 52

Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (Qld), Pts 5, 9, 10

Electronic Transactions Act 2000 (NSW), s 13B

Gambling and Racing Control (Code of Practice) Regulation 2002 (ACT), rr 1.20F, 1.30C

Gambling Legislation Amendment (Online and Other Betting) Act 2019 (NSW)

Gambling Regulation Act 2003 (Vic), cll 5, 7

Gaming Control Act 1993 (Tas), s 112IB

Interpretation Act 1987 (NSW), s 12

Supreme Court Rules 1970 (NSW), Pt 51B r 6

Cases Cited:

BHP Group Ltd v Impiombato (2022) 276 CLR 611; [2022] HCA 33

DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242

R v Porter (2004) 61 NSWLR 384; [2004] NSWCCA 353

Category:

Principal judgment

Parties:

O’Shea Bookmaking Pty Ltd t/as TexBet (Plaintiff)
Dimitri Argeres (Defendant)

Representation:

Counsel:

P Herzfeld SC with E McGinness (Plaintiff)
D Kell SC with C Tran (Defendant)

Solicitors:

Pat Brown Legal Pty Ltd (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2025/138119

Publication restriction:

None

JUDGMENT

1. By a summons filed on 10 April 2025, the appellant, O’Shea Bookmaking Pty Ltd (trading as TexBet) (TexBet), seeks an extension of time in which to appeal against its conviction on 25 September 2024 in the Local Court of five offences (Sequences 3 to 7) under ss 33HA(1) and 33JC(4) of the Betting and Racing Act 1998 (NSW) (the Act) and, if an extension is granted, orders allowing the appeal and setting aside the convictions. The appeal is brought under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), which gives a person who has been convicted or sentenced by the Local Court a right of appeal to this Court “but only on a ground that involves a question of law alone”. An extension of time is required because the appeal was not filed within the 28 days specified in the Supreme Court Rules 1970 (NSW), Pt 51B r 6.

2. The extension of time was sought in circumstances where TexBet filed an appeal within time under s 11 of the CAR Act to the District Court (which confers a general right of appeal on all grounds to that Court) and subsequently discontinued that appeal in favour of an appeal to this Court on a question of law alone. An extension of time was not opposed by the respondent. In those circumstances, it should be granted.

Background

3. Between 3 July 2020 and 27 June 2023, TexBet provided online betting services to customers via the website texbet.com.au as a licensed bookmaker under s 16 of the Act. Section 16 relevantly provides:

16   Authority to conduct telephone or electronic betting

(1) The Minister may, in writing, authorise a licensed bookmaker to accept or make bets –

(a)   by telephone; or

(b)    electronically by means of the Internet, subscription TV or such other on-line communications systems as may be approved by the Minister,

while the bookmaker is at a licensed racecourse or on premises approved under section 16A as premises at which the bookmaker may conduct telephone or electronic betting.

…

TexBet fell within the definition of “licensed bookmaker” within the meaning of s 4 of the Act because it had been authorised by a “racing controlling body” (defined in s 4 of the Act to be Racing New South Wales in relation to horse racing other than harness racing) to carry on bookmaking. On 3 July 2020, it was granted an authority under s 16:

“… to accept or make bets by means of the Internet (electronic) while:

●   fielding at a NSW thoroughbred race meeting;

●   fielding in an authorised betting auditorium at a NSW racecourse licensed for thoroughbred racing; and

●   operating from your Racing NSW approved betting office at a licensed racecourse, Tamworth Jockey Club, Tamworth Racecourse, Britton Rd, Tamworth NSW 2340.” (emphasis in original)

4. On 19 June 2022, Mr Patrick Ziguras, a resident of Carnegie, Victoria, opened an account with TexBet. From that time, he regularly placed bets using that account. However, on 14 May 2022, Mr Ziguras sent a LiveChat message to TexBet saying:

“Hi, please close my account. Not happy with the service I’ve been getting. Thanks.”

5. In response, a TexBet representative sent Mr Ziguras by LiveChat documentation to complete a permanent account closure (also known as a permanent self‑exclusion). Mr Ziguras did not complete that documentation. He said in a witness statement that he was unable to do so because he did not have a laptop or printer with him. Notwithstanding his request, Mr Ziguras continued to place frequent bets with TexBet between 14 May 2022 and 18 June 2022.

6. Following the request made by Mr Ziguras on 14 May 2022, TexBet sent Mr Ziguras several promotional SMS text messages. Each concluded with the statement “To opt‑out Reply Stop”. Mr Ziguras did not exercise that option.

7. On 19 June 2022, Mr Ziguras sent text messages to a representative of TexBet that included the following:

“You can also instruct the team in the office to close my account permanently, which they didn’t do on the last occasion.

…

If I request my account be closed permanently then you’re obliged to do so.”

8. Mr Ziguras’s account was permanently closed on that day.

9. Section 33HA of the Act relevantly provides:

Prohibition on direct marketing

(1)   A non-proprietary association or licensed betting service provider or other person must not provide a gambling advertisement directly to a betting account holder by email, SMS text message or other direct means, unless the holder has given express and informed consent to receiving gambling advertisements directly by that means and has not withdrawn the consent.

…

(3)   A person who requests a licensed betting service provider to close the person’s betting account is taken to have withdrawn consent to receive all gambling advertisements from or on behalf of the provider.

…

10. Section 33JC of the Act relevantly provides:

Closing betting accounts

(1)   …

…

(4)   If a licensed betting service provider receives a request from a betting account holder to close the holder’s account, the provider must—

(a)    immediately cease to accept new bets from the holder, and

(b)   close the account as soon as practicable after all bets made before the request are finalised.

11. “Licensed betting service provider” is defined in s 4 of the Act to mean:

… a betting service provider that holds a licence or authority (however described) under the legislation of this or any other State or Territory to carry out its betting services (whether in that State or Territory, or elsewhere).

12. “Betting service provider” is defined in s 4 of the Act to include a “bookmaker” and “betting service” is defined in a way that includes the services provided by TexBet.

13. Relevantly, TexBet was charged with and found guilty of four offences of providing a gambling advertisement contrary to s 33HA(1) arising out of the text messages it sent to Mr Ziguras after 14 May 2022 (Sequences 3 to 6) and an offence of accepting new bets from Mr Ziguras after receiving a request from him to close his account contrary to s 33JC(4) (Sequence 7).

14. One issue raised before the Local Court, and the only issue before this Court, is whether TexBet could be guilty of the offences in circumstances where at all relevant times Mr Ziguras was in Victoria. The answer to that question is said to turn on the extraterritorial application of the Act and of ss 33HA and 33JC, in particular.

15. In relation to that question, Pearce LCM in an ex tempore judgment delivered in relation to liability on 25 July 2024 said:

“It was submitted that the New South Wales legislation is not expressed in such a way that it applies in respect of a customer who resides in and places a bet from Victoria, such as Mr Zaguris [sic], where the licensed betting service provider is licensed in New South Wales. I do not accept this submission. Although some provisions in the Act relating to licensed betting service providers only apply to New South Wales residents, that is not the case in relation to ss 33HA and 33JC. For example, s 33H, the prohibition on gambling related advertisements, prohibits the publication of any gambling advertisements that may be accessible to, ‘A person in New South Wales that contravened any requirement of the section.’

By contrast, the prohibition on direct marketing contained in s 33HA contains no limitation in its application to individuals in New South Wales, but refers simply to direct advertisements to, ‘A betting account holder.’ Similarly, s 33JC refers to a, ‘Betting account,’ and makes no reference to a betting account held by a New South Wales resident. There is nothing in the definition of betting account in s 33G, ‘An account held with a licensed betting service provider for the purposes of enabling the holder of the account to place a bet,’ that suggests that any reference to a betting account should be read as applying to betting accounts held by New South Wales residents only.”

16. It is apparent from these paragraphs that her Honour rejected the suggestion that the two sections in question only applied where the relevant account was held by a New South Wales resident. Her Honour did not consider any other basis for limiting the territorial scope of the two sections, but it is implicit in her conclusions that whatever they might be they did not exclude the application of the two sections to the facts of this case.

Relevant legal principles

17. An unfortunate feature of legislative drafting is that most legislation is expressed to apply to the world at large, or at least contains no express territorial limit on its application: for discussion, see DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 (DRJ) at [4]ff (Bell P). Plainly, however, legislation cannot and could not have been intended to apply to the world at large. For it to do so would make little sense and would give rise to difficulties of enforcement and raise issues of international comity. Particularly in the case of legislation passed by State Parliaments operating in a federal system, such as Australia, it may also give rise to questions of validity of the legislation and inconsistency with the laws of another State.

18. The Common Law sought to deal with this problem by the introduction of a presumption that, absent clear words in the legislation, the legislation is to be interpreted as not operating extra-territorially. That presumption is said to be particularly strong in the case of criminal offences, and is sometimes captured in the aphorism “all offences are local and territorial”: for discussion, see DRJ at [143]ff (Leeming JA); cf R v Porter (2004) 61 NSWLR 384; [2004] NSWCCA 353 at [19] (Spigelman CJ). That presumption is repeated in s 12(1)(b) of the Interpretation Act 1987 (NSW) (the Interpretation Act), which provides:

References to New South Wales to be implied

(1)   In any Act or instrument—

(a)   …

(b)   a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

19. There are, however, difficulties with the presumption and with s 12(1)(b). The presumption appears to assume that all legislation seeks to regulate conduct and that the operation of the legislation can be confined to the place where the conduct occurred. But neither of those propositions is always true. For example, legislation that implies certain terms in a contract does not itself directly regulate conduct; and the question arises into which contracts the legislature intended the terms to be implied. Even if the legislation regulates conduct, the conduct sought to be regulated may consist of several acts which occur in different jurisdictions.

20. Section 12(1)(b) of the Interpretation Act is not expressed in terms of geographic limits, but read literally it appears to confine every reference to “a locality, jurisdiction or other matter or thing” to one that is “in and of New South Wales”, so that the legislation is presumed (again in the absence of a contrary intention appearing from the legislation) to have no operation outside of New South Wales.

21. The modern approach to these issues is to treat the presumption and s 12(1)(b) and equivalent provisions in other jurisdictions as only applying to what has variously been described as the “hinge”, “statutory springboard”, “general subject matter”, “object of legislative concern”, “central conception”, “character”, or “central focus” of the legislation and to limit the application of the presumption to that. As Gordon, Edelman and Steward JJ explained in BHP Group Ltd v Impiombato (2022) 276 CLR 611; [2022] HCA 33 (BHP) at [62]:

“This Court has never taken a uniform or mechanistic approach to applying the presumption. Where the hinge or the central focus of the subject matter is identified and it does not have a clear territorial connection (that is, it appears to be at large), the presumption will generally require that the hinge be construed as territorially limited, subject to a contrary intention. Where the central focus of the subject matter of the statute, on its proper construction, has a territorial connection, it will ordinarily be unnecessary to look for further territorial restrictions. The presumption has never been understood such that it needed to be applied to all elements or words in a statute.” [footnotes omitted]

22. In the context of criminal law, these principles have been modified by Part 1A of the Crimes Act 1900 (NSW) (the Crimes Act). Relevantly, that Part provides:

10A    Application and effect of Part

(1)   This Part applies to all offences.

(2)   This Part extends, beyond the territorial limits of the State, the application of a law of the State that creates an offence if there is the nexus required by this Part between the State and the offence.

(3)   If the law that creates an offence makes provision with respect to any geographical consideration concerning the offence, that provision prevails over any inconsistent provision of this Part.

(4)   This Part is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction.

10B   Interpretation

(1) For the purposes of this Part, the necessary geographical nexus is the geographical nexus required by section 10C.

(2)   For the purposes of this Part, the place in which an offence is committed is the place in which the physical elements of the offence occur.

(3)   For the purposes of this Part, the place in which an offence has an effect includes—

(a)    any place whose peace, order or good government is threatened by the offence, and

(b)   any place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out.

(4)   A reference in this Part to the State includes a reference to the coastal waters of the State in which the criminal law of the State applies (including in any part of the adjacent area of the State in which the substantive criminal law of the State applies by force of the law of the State or of the Commonwealth in accordance with the Crimes at Sea Act 1998).

10C   Extension of offences if there is a geographical nexus

(1)   If—

(a)    all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and

(b)   a geographical nexus exists between the State and the offence,

the person alleged to have committed the offence is guilty of an offence against that law.

(2)   A geographical nexus exists between the State and an offence if—

(a)   the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or

(b)   the offence is committed wholly outside the State, but the offence has an effect in the State.

23. Section 10A(1) is supplemented by s 3 and Sch 2 of the Crimes Act. That section provides that “[t]he Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried”. Schedule 2 (titled “Application of Act”) includes “Part 1A”.

24. As is apparent from the terms of these sections, absent an express provision in the section or Act creating the offence, Part 1A extends the application of a law of New South Wales that creates an offence beyond the territorial limits of the State if either a physical element of the offence took place in New South Wales or the physical elements of the offence occurred wholly outside New South Wales but the commission of the offence has an effect in New South Wales.

Consideration

Sequences 3 to 6

25. It appears that Part 1A of the Crimes Act was not brought to the attention of the Magistrate. Nor was it referred to in the appellant’s submissions in chief before this Court, with the result that the appellant’s submissions in chief and the respondent’s submissions focused on the presumption against extra-territoriality and s 12(1)(b) of the Interpretation Act. However, it is plain that the question raised by the appeal turns largely on the operation of Part 1A of the Crimes Act. It was not suggested that the respondent was prevented from relying on those provisions because they had not been drawn to the attention of the Magistrate. And it was not suggested that the application of those provisions would result in a more restricted territorial application of the offences in question than would be the case applying the principles stated by the majority in BHP. In any event, for the reasons which follow, the application of those principles in this case would not result in a different conclusion.

26. The physical element of an offence under s 33HA(1) is the provision of a gambling advertisement directly to a betting account holder by email, SMS text message or other direct means. In order to constitute the offence, the gambling advertisement must be provided by relevantly a betting service provider in circumstances where the account holder relevantly has requested the betting service provider to close the account holder’s betting account. However, neither of those additional requirements could be described as physical elements of the offence. The requirement that the advertisement be provided by a betting service provider is simply an identification of the persons to whom the offence applies. The requirement that the account holder has withdrawn his or her consent to receiving advertisements by requesting closure of their account is part of the factual circumstances that are necessary for the offence to occur.

25. It follows that in the case of the offences under s 33HA(1), the only physical element of the offence was the provision of gambling advertisements. It seems plain that in the present case that physical element occurred outside of New South Wales. The relevant advertisements were provided to Mr Ziguras by SMS text messages. An SMS text message could only be said to have been provided to Mr Ziguras when it was received on Mr Ziguras’s mobile telephone. The evidence is that Mr Ziguras (and his telephone) were in Victoria on each occasion the messages were sent. Certainly, there was no evidence before the Magistrate that Mr Ziguras was in New South Wales at the time. It follows that the only physical element of the offences under s 33HA(1) did not occur in New South Wales. It was not suggested that the provision of gambling advertisements to Mr Ziguras in Victoria had an effect in New South Wales.

26. The respondent submits that a physical element of the offence was the sending of the SMS text messages and that element occurred in New South Wales. In support of that proposition, the respondent relies on s 13B of the Electronic Transactions Act 2000 (NSW). Section 13B(1) provides that, absent some contrary agreement between the parties, an electronic communication is taken to have been dispatched at the place where the originator has its place of business, and the electronic communication is taken to have been received at the place where the addressee has its place of business. Where a party is a natural person and does not have a place of business, it is to be assumed that the party’s place of business is the place of the party’s habitual residence: s 13B(2)(e)

27. The respondent’s submission must be rejected. The dispatch of a gambling advertisement is not a physical element of the offence. It is true that the offence could not occur unless a gambling advertisement is dispatched, but it is the provision of the advertisement, not its dispatch which constitutes the offence.

28. Under s 10A(4) of the Crimes Act, Part 1A is “in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction”. However, a different result would not be reached applying the principles stated by the majority of the High Court in BHP.

29. The offences created by ss 33HA (and the offences created by s 33JC) were introduced by the Gambling Legislation Amendment (Online and Other Betting) Act 2019 (NSW). That legislation was passed to give effect to the National Consumer Protection Framework for Online Wagering in Australia – National Policy Statement dated 26 November 2018, which contained agreed commitments between the Commonwealth and each State and Territory concerning a national framework for consumer protection for interactive wagering in Australia. In accordance with that Framework, each other State and Territory has created similar offences to those created by ss 33HA and 33JC: see Ministerial Direction No. 349 Pursuant to s 4.8A.2 of the Gambling Regulation Act 2003 (Vic), cll 5, 7; Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (Qld), Parts 5, 9, 10; Authorised Betting Operations Gambling Code of Practice (SA), ss 39-40; Betting Control Regulations 1978 (WA), Part 3A, Divisions 2 and 3; Gaming Control Act 1993 (Tas), s 112IB; Gambling and Racing Control (Code of Practice) Regulation 2002 (ACT), rr 1.20F, 1.30C; NT Code of Practice for Responsible Service of Online Gambling 2019 (NT), ss 5.6, 8.9.

30. The central focus of s 33HA(1) is the provision of a gambling advertisement by a licensed betting service provider to a person who has not consented to its receipt. The section applies to persons throughout Australia who hold a licence or authority to provide betting services. There is no express territorial limit on the operation of the section. Consistently with the decision in BHP, it is natural then to read the hinge or central focus of the section as containing a territorial limitation – that is, to read the section as applying where a licensed betting service provider provides a gambling advertisement directly to a person located or resident in New South Wales. That interpretation is consistent with the consumer protection nature of the section. It is to be expected that the New South Wales legislature’s principal interest would be to provide the relevant protection to persons located or resident in New South Wales at the time the advertisement is provided, leaving it to the other States and Territories to provide similar protections to persons located or resident in their jurisdictions.

31. There may be a question whether the relevant nexus is whether the person is present in the State at the time the advertisement is provided or whether the person is a resident of the State at that time. The Victorian provisions, for example, require “a wagering service provider”, in Victoria or elsewhere, “providing interactive wagering and betting services to a Victorian resident” to comply with the requirements of the Ministerial Order. However, it is not necessary to resolve that issue in the present case. On either interpretation, the section does not apply to the conduct in question.

Sequence 7

34. The physical element of the offence under section 33JC(4) was the acceptance of new bets from Mr Ziguras after receiving a request from him to close his account, or perhaps more accurately the failure to cease to accept new bets from Mr Ziguras after receiving that request. As in the case of s 33HA(1), the offence has other elements including that a request be made by an account holder to close the holder’s account and that the request be made of a licensed betting service provider. But neither of those requirements could be described as physical elements of the offence. In any event, a physical element of the offence was the failure to cease to accept new bets. That failure occurred when new bets were accepted, and it seems apparent that those new bets were accepted in New South Wales. Applying Part 1A of the Crimes Act, that is sufficient to confer jurisdiction on courts in New South Wales.

35. TexBet submits that the respondent did not establish beyond reasonable doubt that the new bets were accepted in New South Wales because he did not prove the precise mechanism by which bets were accepted and to the extent that that happened electronically or through arrangements with others to provide “back office” services the location of the relevant servers and the persons providing those services. I do not accept that submission. TexBet carried on the business of accepting online bets in accordance with its authorisation. That authorisation permitted it to accept online bets while fielding at a thoroughbred race meeting in New South Wales (or an authorised betting auditorium at a New South Wales racecourse) or operating from its approved betting office at the Tamworth Racecourse. Consistently with that authorisation, it must be treated as having accepted online bets in New South Wales. Or, to put the point slightly differently, the question where TexBet accepted bets should not depend on the precise mechanism by which online bets were accepted but on the practical effect of what occurred consistently with its authorisation. The practical effect was that it carried on business of accepting online bets and that business was carried on in New South Wales. Consequently, when it accepted a bet it accepted the bet in New South Wales, with the result that its failure to cease to accept bets from Mr Ziguras occurred in New South Wales.

Conclusion and orders

36. It follows that the convictions in respect of Sequences 3 to 6 should be set aside, but that the appeal in respect of Sequence 7 should be dismissed. It is appropriate in that case that each party should bear its or his own costs of the appeal. Neither party took issue with that proposition. For similar reasons, no order for costs should be made in relation to the costs in the Local Court.

37. Accordingly, the orders of the Court are:

1. The time for filing of the appeal be extended to 10 April 2025.

2. The appeal in respect of Sequences 3 to 6 is allowed.

3. The orders of the Local Court made on 25 September 2024 in respect of Sequences 3 to 6 are set aside and in their place order that verdicts of acquittal are entered in respect of Sequences 3 to 6;

4. The appeal in respect of Sequence 7 (as amended) is dismissed.

5. There be no order as to costs.

**********

Decision last updated: 01 October 2025