PEOs v Manino
[2004] WASCA 46
•17 MARCH 2004
PEOS -v- MANINO [2004] WASCA 46
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 46 | |
| Case No: | SJA:1044/2003 | 20 AUGUST 2003 | |
| Coram: | BARKER J | 17/03/04 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHRIS DIMITRIOS PEOS SANTO BASILO MANINO |
Catchwords: | Gaming and wagering Totalisators Betting Control Act 1954 (WA) Totalisator Agency Board Betting Act 1960 (WA) Betting contract Whether provision of credit by TAB Whether contract illegal and unenforceable Whether appellant authorised provision of credit "Authorise" |
Legislation: | Acts Amendment (Fixed Odds Betting) Act 1999 (WA), s 25, s 36 Betting Control Act 1954 (WA), s 5, s 17E, s 22, s 28C, s 29, s 30 Criminal Code (WA), s 7 Justices Act 1902 (WA) Racing and Wagering Western Australia Act 2003 (WA) Totalisator Agency Board Betting Act 1960 (WA), s 17, s 20, s 22, s 23, s 33 |
Case References: | Brown v The Queen [1991] 1 Qd R 221 Ex parte Johnson; Re MacMillan (1947) 47 SR (NSW) 16 Herbert v The King (1941) 64 CLR 461 Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 Petranker v Brown [1984] 2 NSWLR 177 The University of New South Wales v Moorhouse (1975) 133 CLR 1 Tote Investors Ltd v Smoker [1968] 1 QB 509 Ward v The Queen (1997) 19 WAR 68 Cubillo v Commonwealth of Australia (2000) 103 FCR 1 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Fonseka v The Queen [2003] WASCA 111 O'Donnell v Reichard [1975] VR 916 Payne v Parker [1976] 1 NSWLR 191 RPS v The Queen (2000) 199 CLR 620 Wik Peoples v State of Queensland (1996) 187 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
SANTO BASILO MANINO
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR M D WHEELER SM
File Number : FR6593/03-6642/02
Catchwords:
Gaming and wagering - Totalisators - Betting Control Act 1954 (WA) - Totalisator Agency Board Betting Act 1960 (WA) - Betting contract - Whether provision of credit by TAB - Whether contract illegal and unenforceable - Whether appellant authorised provision of credit - "Authorise"
(Page 2)
Legislation:
Acts Amendment (Fixed Odds Betting) Act 1999 (WA), s 25, s 36
Betting Control Act 1954 (WA), s 5, s 17E, s 22, s 28C, s 29, s 30
Criminal Code (WA), s 7
Justices Act 1902 (WA)
Racing and Wagering Western AustraliaAct 2003 (WA)
Totalisator Agency Board Betting Act 1960 (WA), s 17, s 20, s 22, s 23, s 33
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC & Mr N J Mullany
Respondent : Mr R M Mitchell
Solicitors:
Appellant : Mark Andrews & Associates
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Brown v The Queen [1991] 1 Qd R 221
Ex parte Johnson; Re MacMillan (1947) 47 SR (NSW) 16
Herbert v The King (1941) 64 CLR 461
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1
Petranker v Brown [1984] 2 NSWLR 177
The University of New South Wales v Moorhouse (1975) 133 CLR 1
Tote Investors Ltd v Smoker [1968] 1 QB 509
Ward v The Queen (1997) 19 WAR 68
(Page 3)
Case(s) also cited:
Cubillo v Commonwealth of Australia (2000) 103 FCR 1
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Fonseka v The Queen [2003] WASCA 111
O'Donnell v Reichard [1975] VR 916
Payne v Parker [1976] 1 NSWLR 191
RPS v The Queen (2000) 199 CLR 620
Wik Peoples v State of Queensland (1996) 187 CLR 1
(Page 4)
- BARKER J:
Introduction
1 On 27 March 2003, the appellant was convicted by a Magistrate in the Court of Petty Sessions at Fremantle of 50 offences against the Betting Control Act 1954 (WA).
2 The essence of each of the 50 charges against the appellant was that, on various dates between 18 May and 20 May 2002:
" … at Moondyne Joe's Hotel & Cafe, Fremantle CHRIS DIMITRIOS PEOS, a person having the management of a totalisator agency, authorised an employee of an agent of the Totaliser Agency Board to accept a bet through the Totaliser Agency Board involving the provision of credit by the Totaliser Agency Board; contrary to sections 28C and 29 of the Betting Control Act 1954."
3 The learned Magistrate found that the appellant authorised one John Hallgath unlawfully to accept credit bets from one Duje Tomy Grljusich.
4 The appellant now appeals against the convictions so recorded.
Grounds of appeal
5 On 18 June 2003, I granted the appellant leave to appeal from the decisions of the learned Magistrate on a number of grounds of appeal, pursuant to the Justices Act 1902 (WA).
6 At the commencement of the hearing on 20 August 2003, I granted the appellant leave to amend the grounds of appeal.
7 The appellant complains that:
"1. The learned Magistrate erred in holding that the bets taken by Hallgath involved the 'provision of credit by the TAB' for the purposes of section 29 of the Betting Control Act 1954 (WA) (the 'Act').
Particulars
- (a) Hallgath contravened the Act.
(b) The betting transactions which constituted a breach of the Act by Hallgath were illegal transactions/contracts.
(Page 5)
- (c) The TAB was, accordingly, never liable under the terms of the Agreement between Orebo Pty Ltd and the Totalizator Agency Board ('TAB').
(d) The credit of the TAB was never extended.
- 2. The learned Magistrate erred in holding that the Applicant 'authorised' the extension of the credit of the TAB.
Particulars
- (a) Any blanket or standing general instruction provided by the Appellant to Hallgath was not 'authorisation' for the purposes of s 28C of the Act."
8 At material times, the Betting Control Act and the Totalisator Agency Board Betting Act 1960 (WA) (TAB Act) applied in respect of the conduct of the appellant complained of. Since then, however, the TAB Act has been repealed by the Racing and Wagering Western AustraliaAct 2003 (WA)and the Betting Control Act has been amended in material respects by that Act. In these reasons, the relevant provisions of the Betting Control Act and the TAB Act referred to are those that applied at material times.
9 Section 28C of the Betting Control Act specified certain offences in respect of conducting totalisator agencies and expressly provided that:
"A person who -
(a) having the management or control of any totalisator agency, authorizes or permits or suffers ¾
(i) the premises of that agency to be used; or
(ii) any act or thing to be done or omitted in or in relation to that agency,
- in contravention of this Act;
(b) having the management or control of or being employed or acting in any capacity in connection
(Page 6)
- with any totalisator agency, accepts from any person any bet which ¾
(i) is prohibited by; or
(ii) does not conform with,
- this Act;
(c) not being a person lawfully managing or controlling or being employed in any totalisator agency sells or offers to sell any totalisator ticket purporting to be issued by the TAB; or
(d) purchases any totalisator ticket from any person not authorised to sell it,
commits an offence."
"An officer, agent or employee of the TAB or any employee of an agent of the TAB who accepts a bet through the TAB involving the provision of credit by the TAB, contrary to the provisions of section 33 of the Totalisator Agency Board Betting Act 1960, commits an offence."
11 Section 33 of the TAB Act contained provisions relating to bets through the TAB which, at all material times, provided as follows:
"The following provisions apply in relation to betting through the TAB -
(a) the TAB, or any of its officers, agents or employees or any employee of an agent of the TAB shall not accept a bet unless made -
(i) by the deposit of the amount of the bet in cash at a totalisator agency;
(ia) by the transfer of the amount using a prescribed method of payment or funds
(Page 7)
- transfer, that does not involve the provision of credit by the TAB;
- (ib) by cheque at a totalisator agency in prescribed circumstances; or
- (b) the TAB, or any of its officers, agents or employees or any employee of an agent of the TAB shall not accept any bet that is made by letter or by telegram or telephone message unless -
(i) the person making the bet has established with the TAB in accordance with this Act, a credit account sufficient to pay the amount of the bet and has maintained the account up to the time of making the bet and the bet is charged against that account; or
(ii) alternatively, in the case of a bet made by letter or telegram, the amount of the bet is forwarded through the post with the letter or payment thereof is arranged by telegram in accordance with this Act."
13 Under the provisions of the agreement Orebo Pty Ltd indemnified the TAB for any loss arising out of its operation of the agency.
14 The making of the betting transactions by Mr Grljusich alleged in the complaints against the appellant, was not in dispute. Nor was the fact that Mr Grljusich did not pay cash for each bet at the time he made it.
15 The bets in question were taken by an employee of the agent, Mr Hallgath.
16 As it transpires, whilst some of the bets were winning bets, the overall balance of the betting transactions was a deficit of some $50,000.
(Page 8)
17 On behalf of Orebo Pty Ltd, the appellant made good the deficit forthwith to the TAB under the terms of the agreement.
18 The learned Magistrate found on the evidence before him that:
(1) the betting transactions involved the "provision of credit by the TAB" for the purposes of s 28C and s 29 of the Betting Control Act; and
(2) it was proved that Mr Hallgath had been authorised by the appellant to accept the bets placed by Mr Grljusich.
19 Each of these findings is challenged in this appeal.
The first ground of appeal: whether by accepting bets without immediate cash payment Mr Hallgath "accept[ed] a bet involving the provision of credit by the TAB" for the purposes of s 29 of the Betting Control Act
20 The particulars supporting this first ground of appeal are set out above. The appellant contends that none of the bets involved the "provision of credit by the TAB" for the purposes of s 29 of the Betting Control Act.
21 The appellant appears to accept that there was a contravention of the TAB Act by Mr Hallgath when he accepted Mr Grljusich's bets without the payment of cash. There can be little doubt on the facts about that. Mr Hallgath contravened s 33(a) of the TAB Act in that, when he accepted each of the bets made by Mr Grljusich, none of the exceptional circumstances referred to in pars (a)(i), (a)(ia) or (a)(ib) applied to the transaction. On the evidence, par (b) of s 33 was not relevant as none of the bets was made by letter or by telegram or telephone message.
22 On the face of it, Mr Hallgath also contravened s 29 of the Betting Control Act by accepting a bet contrary to s 33 of the TAB Act. However, the appellant questions whether Mr Hallgath's actions in accepting the bet constituted the acceptance of a bet through the TAB "involving the provision of credit by the TAB" as required by s 29 of the Betting Control Act. The argument is mounted in two related ways.
23 First, the appellant says that each of the betting transactions involving Mr Hallgath and Mr Grljusich was an illegal transaction or contract under the general law. The appellant then says that, due to the contravention of the Act, there was a breach of a fundamental term of the agreement between Orebo Pty Ltd and the TAB and, so, the TAB was never liable under the terms of the agreement. As a result, it is argued, it
(Page 9)
- cannot be said that the bets accepted by Mr Hallgath involved "the provision of credit by the TAB".
24 Secondly, as I understand the argument, the appellant says because each betting contract made was an illegal contract and unenforceable, the credit of the TAB was never extended.
25 The Betting Control Act was introduced by Act No 63 of 1954 for the purpose, as the long title to the Act stated:
" … to authorise, regulate and control, betting and bookmaking on horse and greyhound racing and on sporting events; to regulate the assessment, collection, and allocation of a levy on money paid or promised to bookmakers or the Totalisator Agency Board as consideration for bets; to authorize, regulate and control the use of totalisators and betting with, or through, the Totalisator Agency Board; to repeal certain Acts; to amend certain Acts; and for other purposes."
26 The Act by its terms from the outset purported to control betting with bookmakers and developed a scheme whereby betting with licensed bookmakers in registered premises was lawful. In that regard, s 5(1) (which has been amended slightly since first enacted to take account of betting in relation to events other than races) provided:
"Notwithstanding any law to the contrary, persons may, in accordance with this Act, lawfully bet by way of wagering or gaming on a race course -
(a) on races, except on Anzac Day during the period ending at 12 noon; or
(b) on a sporting event or contingency, in accordance with section 4B,
and their doing so does not of itself constitute a contravention of the law, and is not a ground for the race course or any part of it being deemed or declared to be, or to be used as, a common betting house or a common gaming house, or to be a common nuisance and contrary to the law."
- Thus, by s 5(1), the activities of wagering and gaming were permitted to the extent the Act provided for them to be carried out in controlled circumstances.
(Page 10)
27 In that context, s 22 of the Act in its original and materially relevant terms made it an offence for an under-age person to be on registered premises or bet with a bookmaker or request any other person to place a bet for him.
28 The Act imposed on bookmakers a range of responsibilities and created offences where a person omitted to do anything directed to be done or who did or attempted to do anything forbidden by the Act (see, for example, s 30).
29 In 1960, the TAB Act was enacted. As the long title to that Act stated, the purpose of the Act was "to constitute a Totalisator Agency Board, to authorise the provision and operation of betting services on totalisators through the TAB and for totalisator and other betting with the TAB and for incidental and other purposes".
30 The TAB Act was also subsequently amended on a number of occasions before it was repealed, as noted above.
31 In the Betting Control Act, the verb "to bet" was, at material times, defined and means to pay or deliver, or promise or agree to pay or deliver, or to receive or agree or promise to receive, any money or other property for the consideration for, amongst other things, an assurance to pay or give thereafter any money or other property on any event or contingency of or relating to any race or any sporting event in relation to which betting is authorised under the Act; or securing the paying or giving by some other person of any money or other property on any such event or contingency.
32 The TAB Act did not define the word "bet" or the verb "to bet", but did define the expressions "fixed odds bet" and "novelty bet".
33 Section 29 of the Betting Control Act was introduced at the same time as s 33(a)(ia) and (ib) of the TAB Act: see s 25 and s 36 of the Acts Amendment (Fixed Odds Betting) Act 1999 (WA). Prior to those amendments, s 33 of the TAB Act authorised the TAB to accept bets only for cash, or by post or telephone where there was an account in credit. The amendments introduced an ability for the TAB to accept electronic funds transfers and cheques in prescribed circumstances. In that legislative context, s 29 of the Betting Control Act was a related provision designed to reinforce the controls preventing the TAB from conducting credit betting: see Hansard, 19 August 1999, page 504. It follows that s 29 of the Betting Control Act should be read in light of the provision in s 33 of the TAB Act as to the manner in which the TAB could accept bets.
(Page 11)
34 At material times, the requirement for "credit" was only a requirement for the issue of a bet by the TAB without insisting on prepayment or interchangeable payment and permitting payment at a later date. This concept of "credit" is reflected in decisions such as Brown v The Queen [1991] 1 Qd R 221 at 224 - 225 per Macrossan CJ, and at 229 per Ryan J, and Herbert v The King (1941) 64 CLR 461 at 464 and 466 per Rich ACJ, and at 467 per McTiernan J.
35 Under s 17(1)(a)(i) of the TAB Act, bets were made "through or with the TAB" even when the TAB established an agency. Section 20 of the TAB Act referred to the receipt of bets "by or on behalf of" the TAB. Section 17E of the Betting Control Act provided for the deduction of a prescribed commission from a bet "received by the TAB or one of its agencies". Sections 22 and 23 of the TAB Act provided for the payment of a dividend for bets received by the TAB.
36 In this statutory context, and having regard to the terms of the agreement between Orebo Pty Ltd and the TAB, at material times Orebo, as agent of the TAB, issued bets and received moneys on behalf of the TAB and in return for so doing the TAB was obliged to pay commissions on those bets to Orebo as its agent.
37 As noted above, because, on the face of it, Mr Hallgath, as the employee of the agent, accepted bets, but did not receive payment in cash for the bet at the time, he breached both s 33 of the TAB Act and s 29 of the Betting Control Act.
38 That the TAB, under the agreement with Orebo, was entitled to be indemnified by the agent does not, in my view, bear on the question whether the betting transactions involved an offence under s 29. The agreement affects the relationship between the agent and the TAB. It bears on the terms of the agency and how it is to be performed and also, so far as the indemnity provision is concerned, ensures that if certain events should occur the agent is obliged by contract to indemnify the TAB. Whether or not it can be said that the agreement has been "fundamentally breached" does not assist in determining whether an offence has been committed against s 29.
39 It follows, in my view, that whatever effect the agreement had or has on the contractual relationship between the parties, it cannot be relied upon to determine the proper interpretation and meaning of an expression in the Betting Control Act.
(Page 12)
40 However, the question remains whether the acceptance by Mr Hallgath of Mr Grljusich's bets without the accompanying provision by Mr Grljusich of cash to pay for the bet, involved "the provision of credit by the TAB, contrary to the provisions of section 33 of the [TAB] Act."
41 In this regard, Senior Counsel for the appellant also contends that, because, in his submission, each bet placed by Mr Grljusich constituted an illegal contract unenforceable under the general law, there can have been and was, no "provision of credit by the TAB" in relation to the bet.
42 There are two assumptions involved in this contention: first, that the acceptance of a bet contrary to s 33(a) of the TAB Act constituted an illegal and unenforceable contract under the general law; and, secondly, that it necessarily follows that where there is an illegal and unenforceable contract in such a case the bet so accepted can never involve "the provision of credit by the TAB, contrary to the provisions of s 33 of the [TAB] Act", as properly interpreted.
43 As to the question of the illegality of the betting contract, it is clear that at general law a contract will be found to be an illegal contract if it expressly or impliedly is prohibited by legislation or because it offends against public policy.
44 At common law, a wager was initially considered a contract enforceable at law, although attended by pleading difficulties. In the latter part of the 18th century, it appears that Courts found that frivolous and indecent matters were being brought before them for determination. As a result, rules came to be established that a wager was not enforceable if it could only be proved by evidence which was indecent or was calculated to injure or pain a third person, or, as a matter of public policy, that any wager which tempted a man to offend against the law was illegal: see, generally, Anson's Law of Contract, 17th ed, editors Miles & Brierly pp 221 - 224. In time, in the United Kingdom and Australia legislation was enacted to make gaming and wagering contracts null and void so that no action could be brought or maintained to recover any such sum of money: see, eg, Gaming Act 1835 (Eng) and later Acts referred to in Anson (supra) at pp 225 - 227. The substance of these provisions was also reflected in the legislation of a number of Australian States.
45 In this case, it is rather generally put on behalf of the appellant that the proscription on credit betting, except in the circumstances provided for by s 33 of the TAB Act, automatically rendered any credit betting contract
(Page 13)
- not made in conformity with s 33 an illegal and therefore unenforceable contract at general law. This proposition was not argued at length before me. While it was put forward as an axiomatic proposition, I am not satisfied it is necessarily so. In any event, I do not consider that the correctness or otherwise of the proposition ultimately bears upon the outcome of this first ground of appeal.
46 Section 33 of the TAB Act and s 29 of the Betting Control Act appear to have been premised on an understanding that a person such as an employee of an agent of the TAB may well "[accept] a bet through the TAB involving the provision of credit by the TAB", notwithstanding that such conduct is contrary to s 33 of the TAB Act. I say that this appears to be the case because the Parliament had gone to the trouble of proscribing such conduct and making it an offence in s 33 of TAB Act, and, in turn, making such proscribed conduct an element of the offence created by s 29 of the Betting Control Act.
47 Plainly enough, s 33 of the TAB Act could be contravened regardless of whether the betting contract so made was an illegal contract under the general law.
48 When one turns, then, to s 29 of the Betting Control Act, the proscribed conduct was the act of accepting a bet "involving the provision of credit by the TAB contrary to the provisions of section 33 of the [TAB] Act". These emphasised words are important to a proper understanding of the offence the provision creates. The nature of the offence created must be understood in the light of this compendious phrase.
49 If the appellant's argument were right, there could, in effect, never have been a contravention of s 29 of the Betting Control Act, because in every case of contravention of s 33 of the TAB Act the bet would not involve "the provision of credit by the TAB". In my view, that cannot have been Parliament's intention in creating the offences to which s 29 of the Betting Control Act and s 33 of the TAB Act related and the argument that it is so pays too little regard to the compendious phrase actually employed in s 29.
50 The issue is ultimately one of statutory interpretation. Whether or not a betting contract made with a TAB through an employee of one of its agents contrary to s 33 of the TAB Act is an illegal contract and unenforceable at general law does not, in my view, determine the proper interpretation of s 29 of the Betting Control Act. Regardless of what the general law position was in relation to the status of a betting contract
(Page 14)
- made in contravention of s 33 of the TAB Act, I consider that s 29 made it an offence for a relevant person to accept a bet where credit arrangements were accepted contrary to those expressly provided for in s 33 of the TAB Act. The fact, if it were the case, that the contract was unenforceable under the general law is not to the point.
51 I consider the true position to be relevantly that, where an employee of an agent of the TAB contravened s 33 of the TAB Act by accepting a bet on credit terms other than those provided for by s 33, then, for the purposes of s 29 of the Betting Control Act,that employee "accepts a bet through the TAB involving the provision of credit by the TAB, contrary to the provisions of section 33 of the [TAB] Act" and "commits an offence".
52 Similar problems of statutory interpretation have arisen in respect of other pieces of legislation dealing with or relating to wagering and gaming. For example, in Petranker v Brown [1984] 2 NSWLR 177, the New South Wales Court of Appeal had to deal with the question whether the game of lotto was an unlawful game under the Gaming and Betting Act 1912 (NSW). The Court held that the game of lotto played according to the Lotto Act 1979 (NSW) and the rules made thereunder was not an unlawful game within s 17(b) of the Gaming and Betting Act 1912, and was not a contract by way of gaming or wagering within s 16 of that Act.
53 The case involved a claim by the appellant that the respondents, Mr and Mrs Brown, had been at fault in failing to submit his lotto coupon for inclusion in a particular game; and that, had it been included, it would have won a share of the prize since it contained the combination of numbers ultimately drawn and which other entrants also had selected. The first respondents filed a number of defences, including that the provisions of the Gaming and Betting Act applied to make the Lotto Act transaction an illegal contract and unenforceable. Approached literally, the terms of the Betting and Gaming Act seemed to suggest such an outcome.
54 However, the Court found that the contract upon which the appellant relied did not involve gaming or wagering in their strict senses and was not null and void by dint of s 16 of the Gaming and Betting Act.
55 The Court also rejected an argument that lotto was an unlawful game proscribed by s 17(b) of the Gaming and Betting Act as it was not a "game where money is disposed of by lottery or chance except as authorised under the Lotteries and Art Unions Act 1901-1929". However, the reason for this latter conclusion was not that the game of lotto did not literally
(Page 15)
- meet that description, but that the legislature cannot have intended that the game of lotto should be caught by s 17(b) and treated as an unlawful game.
56 In this respect, Mahoney JA, at 186, said:
"I would hesitate to attribute to the legislature such an intention: at least, I would hesitate to attribute the intention to produce such a result by an Act in the form which the Lotto Act takes. It is the function of the courts to ascertain and give effect to the intention of the legislature as expressed in its enactments. And, as is well settled, the courts will not be led to find the legislative intention to be other than the enactment indicates by the fact that they regard that which the legislature intends as undesirable or objectionable. But conversely the courts should not, in my opinion, find that the legislature, and the legislators, had the intention to do something for which they will be publicly accountable as undesirable or objectionable unless that intention appears clearly from the enactment."
57 Priestley JA, at 194, stated:
"As I have indicated I think the 'unlawful game' submission in the case can be dealt with on a broad and simple basis. That is that in choosing between a reading of the Lotto Act which treats lotto as a lawful game and one which treats it as unlawful there is only one choice - the reading which treats the game as lawful. The submissions for the respondents involve the proposition that the features which I have listed were intended by a rational legislature to be appurtenant to an unlawful game. In my opinion the only intention the legislature can have had was to treat the game of lotto, conducted under the Act, as a lawful game."
58 In Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65, the defendant applied to strike out the plaintiff's action against the defendant TAB for breach of contract in relation to betting contracts. The question was whether s 248 of the Racing and Betting Act 1980 (Qld) expressly excluded claims of the nature of that brought by the plaintiff. Amongst other provisions, s 248(1)(a) provided that subject to subs (2) and s 249, a contract or agreement whether by parole or in writing with respect to gaming or wagering is void. Subparagraph (c) provided that an
(Page 16)
- action should not be brought in a court to recover a sum of money alleged to be won or lost on a bet.
59 The definition of "wagering" in s 5 of the Racing and Betting Act expressly included "betting conducted by means of a totalisator".
60 As Muir J noted, at [6], on the face of things, although it may occasion a great deal of surprise to the average "punter", the defendant was correct in contending that when a person places a bet or wager with it, no enforceable agreement arises and no action lies to recover any "winnings".
61 However, the plaintiff sought to avoid the consequences of a literal construction of s 248 by arguing that the Wagering Act 1998 to the extent of its operation, repealed the section. The argument put was that it was improbable that the legislature could have intended erecting such a comprehensive legislative framework for totalisator betting while simultaneously preventing actions to enforce obligations arising out of transactions which that framework contemplated. In putting this argument, the plaintiff referred to Petranker v Brown (supra).
62 Muir J noted, at [32], that prior to the enactment of the Wagering Act it had long been established that totalisator betting does not constitute "wagering" as a totalisator operator can neither win nor lose: see Tote Investors Ltd v Smoker [1968] 1 QB 509, especially at 516 per Lord Denning MR.
63 Muir J then noted, at [33], that:
"Weighed against these considerations is the seeming absurdity of making agreements relating to totalisator betting void and preventing the recovery of moneys relating to such betting activities whilst, as part of a connected legislative process, enacting the Wagering Act. That Act makes elaborate provision for totalisator betting, regulates it closely and contemplates the making of Wagering Rules to bring about even closer regulation."
64 Muir J, at [39], then noted that there was no "direct inconsistency" between s 248 and the provisions of the Wagering Act. His Honour noted that the latter does not expressly declare wagering agreements enforceable or winning bets recoverable by action. He accepted, however, that inconsistency or repugnancy may arise indirectly.
(Page 17)
65 In the event, Muir J, at [41], accepted the extra-curial observation of Lord Steyn in his paper "The Intractable Problem of the Interpretation of Legal Text", the John Lehane Memorial Lecture 2002, that:
"Interpretation is not a science. It is an art. It is an exercise involving the making of choices between feasible interpretations."
66 His Honour then concluded, at [42], that although there was nothing in either Act which expressly provided that each is to be read together with and in the light of the other, it was plain that the two Acts comprised an overlapping legislative scheme and should be construed accordingly.
67 In those circumstances, Muir J considered, at [43], that the legislature should not be attributed with the intention of rendering void, by operation of s 248 of the Racing and Betting Act, contracts entered into in consequence of transactions expressly authorised by the Wagering Act or of prohibiting the recovery by legal action of moneys payable as a result of such transactions. His Honour observed that:
"To reach a contrary conclusion, would be to credit the Legislature with a marked lack of confidence in the efficiency of its carefully crafted structure for totalisator betting, whilst simultaneously manifesting absolute confidence in the willingness of licensees and their customers to honour their respective obligations without threat of legal compulsion."
68 In the present case, it would seem to me to have been a remarkable thing if the Parliament of this State were to be considered to have enacted s 29 of the Betting Control Act with the intention that, should s 33 of the TAB Act not be complied with in respect of the credit betting provisions, there could and would have been no offence under s 29. Rather, in my view, the intent of s 29 was that if a relevant person accepted a bet without receiving at the same time the deposit of the amount of the bet in cash, or one of the other forms of satisfaction referred to in s 33(a)(i), (a)(ia), (a)(ib) or (b) of the TAB Act, and agreed to receive satisfaction for the bet later, then that person would be taken to have accepted a bet "involving the provision of credit by the TAB contrary to the provisions of section 33 of the [TAB] Act" for the purposes of s 29 of the Betting Control Act.
69 In other words, whether or not the acceptance of a bet contrary to the provisions of s 33 of the TAB Act constituted an illegal contract and was unenforceable under the general law was irrelevant, as a matter of
(Page 18)
- statutory construction, to the question whether a relevant person had accepted a bet through the TAB "involving the provision of credit by the TAB, contrary to the provisions of s 33 of the [TAB] Act", for the purposes of s 29 of the Betting Control Act.
70 For these reasons, the first ground of appeal must fail.
The second ground of appeal: whether Mr Hallgath was "authorised" by the appellant to accept the bets made by Mr Grljusich
71 In the second ground of appeal, the appellant contends it was not proved that Mr Hallgath was authorised by the appellant to accept Mr Grljusich's bets.
72 The appellant drew attention to the terms of s 28C of the Betting Control Act, which made and makes relevant the acts of a person who "authorises or permits or suffers" the proscribed conduct.
73 The appellant says it was insufficient for the prosecution to show that the appellant had merely allowed or facilitated the making of bets by Mr Grljusich because each of the complaints alleged an "authorisation".
74 The appellant contends that because a distinction is drawn in the Act between authorising an act and permitting or suffering it, the act of authorising necessarily involves a mental element. Thus, it is argued, a person cannot authorise something by mere inactivity.
75 The appellant says the effect of Mr Hallgath's evidence was that the appellant had said he was to allow Mr Fisher and Mr Grljusich to bet on credit and that he would "sort it out at the end of the night".
76 The appellant therefore contends the learned Magistrate erred in concluding that a "blanket authorisation" could be given in the circumstances under consideration and that on the facts it had been given. Even if given, such blanket authorisation could not constitute an "authorisation" for the purposes of each betting transaction.
77 The appellant further contends that, in its particular statutory context in s 28C, the word "authorises" does and at material times did not include a "standing" general "instruction", but rather requires and required some specific grant of authority in relation to a particular event.
78 In support of his contentions, the appellant sought to draw some guidance from the manner in which s 7 of the Criminal Code makes persons connected with an offence a party to the offence. Section 7
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- provides that when an offence is committed, each of a number of persons is deemed to have taken part in committing the offence and be guilty of it, including "Every person who aids another person in committing the offence" and "Any person who counsels or procures any other person to commit the offence". Senior Counsel for the appellant drew the Court's attention to Ward v The Queen (1997) 19 WAR 68 in which Steytler J emphasised, at 72, that there is a strong body of authority which supports the view that knowledge of the facts is necessary before a person can be made liable as a secondary party for the commission of an offence.
79 No doubt, in order to establish that a person aided the commission of an offence, there must be actual knowledge of the facts amounting to the offence in respect of which aid is being lent, as opposed merely to a suspicion that those facts exist, albeit that knowledge might be inferred from proof of exposure to the obvious, as the Full Court held in Ward. However that may be, those principles and their particular application in Ward's case have little direct relevance to the question of interpretation and the application of s 28C to the facts as they were found by the learned Magistrate.
80 The word "authorise" is defined by the Shorter Oxford English Dictionary, 5th ed, relevantly to mean: "Give formal approval to; sanction, countenance." As an alternative, it also defines the verb to mean: "Give legal or formal warrant to (a person or body) to do; empower, permit authoritatively (Italics in original)." When used in a statutory context, of course, a particular word should be given a meaning that fits the particular context in which it is used: see Ex parte Johnson; Re MacMillan (1947) 47 SR (NSW) 16.
81 The proper interpretation of the word "authorise" has arisen in a number of instances over many years, particularly in the context of copyright legislation. In The University of New South Wales v Moorhouse (1975) 133 CLR 1, at 12 - 13, Gibbs J (as he then was) had occasion to consider the proper interpretation of the word "authorizes" in the Copyright Act 1968 (Cth) and observed:
"The word 'authorize', in legislation of similar intendment to s 36 of the Act, has been held judicially to have its dictionary meaning of 'sanction, approve countenance': Falcon v Famous Players Film Co [1926] 2 KB 474 at 491; Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 at pp 489, 497. It can also mean 'permit', and in Adelaide Corporation v Australasian Performing Right
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- Association Ltd (1928) 40 CLR 481 'authorize' and 'permit' appear to have been treated as synonymous. A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at pp 497 - 498, 503. Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization; 'Inactivity or "indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred"': Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at p 504. However, the word 'authorize' connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be done."
82 Jacobs J, largely to similar effect, observed, at 20 - 21:
"But authorization is wider than authority. It has, in relation to a similar use in previous copyright legislation, been given the meaning, taken from the Oxford Dictionary, of 'sanction, approve, countenance'. See Falcon v Famous Players Film Co … which was approved in Adelaide Corporation v Australasian Performing Right Association Ltd … I have no doubt that the word is used in the same sense in s 36(1). It is a wide meaning which in cases of permission or invitation is apt to apply both where an express permission or invitation is extended to do the act comprised in the copyright and where such a permission or invitation may be implied. Where a general permission or invitation may be implied it is clearly unnecessary that the authorizing party have knowledge that a particular act comprised in the copyright will be done.
The acts and omissions of the alleged authorizing party must be looked at in the circumstances in which the act comprised in the copyright is done. The circumstances will include the likelihood that such an act will be done."
83 Jacobs J then cited Banks LJ in Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1, at 9, in observing that a Court may infer an authorisation or permission from acts which fall short of being direct and positive, so that indifference, exhibited by acts of
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- commission or omission, may reach a degree from which authorisation or permission may be inferred. Jacobs J accepted that it is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorised.
84 I can see no particular reason why, in the context of s 28C of the Betting Control Act, or the Act generally, the word "authorise" should be read other than in its ordinary sense of sanction, approval, countenance. I consider the dicta of Gibbs J and Jacobs J in Moorhouse's case (supra) to be particularly apposite to the use of the word in this statutory context.
85 In contrast to what the appellant says of the facts, the respondent says the prosecution case was that the appellant had made a direct arrangement with Mr Grljusich whereby employees of the appellant's agency would accept bets from Mr Grljusich without payment so long as the amount was paid by Mr Grljusich by the following Friday. The prosecution case was that there was no arrangement with Mr Grljusich to pay cash, cheque or anything else "up front" for his bets, but that Mr Grljusich would settle up at the end of the week.
86 The respondent says the evidence of Mr Hallgath was of a general authority from the appellant to accept bets from both Mr Grljusich and another man, Mr Fisher, and this supported the prosecution case that there was an instruction for Mr Grljusich's bets to be accepted without immediate payment. The respondent says the appellant, in his interview with Inspector Gray confirmed that the arrangement, established under a longstanding practice, "was for both 'Phil and Tom' to make bets even if they [didn't] pay for them".
87 The respondent says it was the appellant's case, not the prosecution's, that Mr Grljusich was a "bloody liar" and that the appellant had no arrangement with him and that the appellant had only ever authorised the agency employees to take money from Mr Fisher and that the bets placed by Mr Grljusich were taken without his authorisation. The respondent says the appellant's evidence was that his arrangement with Mr Fisher involved Mr Fisher putting money "up front" and he had a "blank cheque as security for myself". The respondent says the appellant did, however, acknowledge that he filled in and banked these cheques on quite a few occasions.
88 The evidence shows that in cross-examination the appellant accepted that he was aware of Mr Grljusich placing bets without paying for them at the time, but that "that was put on Phil Fisher's account" and that he
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- assumed that the tickets were "all Phil's" and that "Tom wasn't there on his own … he was always there with Phil …". The respondent says, and I accept the submission, that the Magistrate accepted Mr Grljusich's and Mr Hallgath's evidence in favour of the evidence to the contrary of the appellant, and that Mr Hallgath was instructed to accept bets from Mr Grljusich as well as Mr Fisher without money being paid at the time the bets were placed, and without any limit having been placed on the bets which were to be accepted.
89 The learned Magistrate having considered all the relevant evidence stated (at appeal book 146 - 147):
"The answers to me are obvious. Both these men [Fisher and Grljusich] were authorised … actively authorised by the defendant to place bets with the squaring up to be done later.
….
… I don't think it's Grljusich who is the bloody liar, in fact I think I'm certain that it's not Grljusich who is the bloody liar. I prefer his evidence entirely over that of the defendant.
Having reached that stage I'm satisfied beyond reasonable doubt firstly - - firstly I would also say there is no money given on account, no $4500 given on account, otherwise you wouldn't have had a blank cheque from Fisher and I am satisfied that Horgath [sic], the employee of the agency, was directly instructed on an ongoing basis over a significant period of time to accept bets without them being paid for at the time and that happened. There was no instruction, no instruction expressed or implied, as to a limit … There was a specific authorisation and instruction on an ongoing basis to accept bets this way. The defendant documented it in an exercise book and in my view, as I've already said, on the law that - - those bets were accepted and that did involve the provision of credit by the TAB and in my view that's contrary to sections 28C and 29 … "
90 The question the learned Magistrate was required to answer was simply whether the appellant had "authorised" Mr Hallgath to take Mr Grljusich's bets in the ordinary meaning of that word. On the evidence as the learned Magistrate found it, I am satisfied that it was open to him to so find. This was not a case where the learned Magistrate found that Mr Hallgath inferred that he was entitled to accept Mr Grljusich's bets on the basis of some poorly-expressed or unexpressed statement made by the
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- appellant or some other person, or some mere course of dealing involving the appellant, but a case where there was evidence, accepted by the Magistrate, that the appellant had verbally directed Mr Hallgath concerning the nature of betting transactions he could conclude with Mr Grljusich. On the evidence, the learned Magistrate was entitled to conclude that the appellant "authorised" Mr Hallgath in the manner complained of.
91 In these circumstances, the second ground of appeal must fail.
Conclusion
92 For the reasons set out above, the appeal should be dismissed.
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