Roebuck v Golden Casket Lottery Corporation Ltd

[2000] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:	Roebuck v Golden Casket Lottery Corporation Ltd [2000] QCA 289
PARTIES:	ARTHUR ROEBUCK (plaintiff/appellant) v GOLDEN CASKET LOTTERY CORPORATION LIMITED ACN 078 785 449 (defendant/respondent)
FILE NO/S:	Appeal No 10349 of 1999 DC No 8 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General civil appeal
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	25 July 2000
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2000
JUDGES:	de Jersey CJ, McPherson JA and Williams J Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Appeal dismissed with costs to be assessed.
CATCHWORDS:	INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – appeal against trial Judge’s determination of the proper construction of directions on two “instant scratch-it” tickets – construction of “find the same numerical symbol in a single game” – whether ambiguous or uncertain – natural meaning – significance of game description
COUNSEL:	HB Fraser QC for the appellant SC Doyle SC, with LF Kelly for the respondent
SOLICITORS:	South & Geldard for the appellant Clayton Utz for the respondent

1. de JERSEY CJ:  The appellant applied in the District Court for a declaration of the proper construction of directions on two “instant scratch-it” tickets.  On the construction for which he contended, he would have been entitled to prizes in all games, being amounts of $100,000, $10,000, $4 and $3.  The learned District Court judge preferred the construction advanced for the respondent, and denied the appellant relief.  The appellant now appeals against that determination.

1. Upon purchase, each ticket, from a game called “Casino Games Roulette”, displayed at each end of its front face a “prize” rectangle, designated game 1 and game 2 respectively, separated by the words, “SCRATCH GAME 1 AND 2, FIND THE SAME NUMERICAL SYMBOL IN A SINGLE GAME AND WIN THE “PRIZE” FOR THAT GAME.”  Scratching off the coating on the game 2 prize rectangle on one of the tickets, the appellant uncovered six numbers and reference to a $100,000 prize.  One of the uncovered numbers was 2. The appellant contended that having uncovered a number 2, in game 2, that number uncovered being the “same” as the number of the game, he was entitled to prizemoney of $100,000. For the other ticket, again scratching the coating from the game 2 rectangle and again uncovering a number 2, the appellant claimed, by the same reasoning, to have won the prize applicable to that ticket, the sum of $10,000.  Similarly, in game 1 on each ticket, having uncovered the number 1, he claimed to be entitled to the prizemoney, $4 in one case and $3 in the other.

1. This was the appearance of the tickets upon purchase:

1. 
   This is how they appeared after the appellant had scratched off the coating (the game panel on the right in each case being game 2):

1. 
   The essence of the learned judge’s reasoning emerges from this extract from his reasons for judgment:

“… the instruction to “find the same numerical symbol in a single game” on the ordinary, everyday meaning of those words …(means) that to win the game the player must find more than one identical numerical symbol displayed in the game panel after it has been exposed by scratching off the latex cover.

It is not without significance … that once the instruction to scratch game 1 and 2 has been complied with and the player is about to begin the search to find the same numerical symbol the words identifying which game is game 1 and which game is game 2 will have disappeared, so that unless the player had previously observed how each was numbered he or she would not know which was game 1 and which was game 2.  Further, even if the player did first observe which game was which it would not be apparent on the face of the ticket when presented to an agent for payment that it was indeed a winning ticket.”

1. The appellant contends that the natural meaning of the instruction is that to win game 1, the purchaser must find in that game a number 1 – being the only numerical symbol, already fixed (by the numbering of the game) to which the words, “the same numerical symbol” can refer.  Similarly, to win game 2, the purchaser must find a number 2 in that game panel.  The appellant alternatively submits that if the instructions are ambiguous, the ambiguity should be resolved against the respondent, as the party responsible for the drafting.

1. The appellant’s approach therefore involves identifying the designated number of the game, 1 or 2, as the number to be matched from among those then uncovered by the removal of the coating; it is one of the uncovered numbers which must turn out to be that “same numerical symbol”, for the prize to be won. 

1. A practical and substantial difficulty immediately attending this approach is as mentioned by the learned judge: the removing of the coating necessarily removes the designation of the number of the game, so that by referring to the uncovered ticket alone, an agent asked for payment of the prizemoney could not verify a purchaser’s claim to have won.

1. The instruction given on the ticket is not comprehensively expressed and borders on the cryptic or elliptical.  That may be explained by limitation in the available space.  But it is unfortunate that the form of the instruction has left any room for debate: the meaning should be immediately and abundantly clear to the purchaser of such a ticket. However though expressed briefly, even elliptically, the instruction is not necessarily to be regarded as ambiguous or uncertain. 

1. The words “find the same numerical symbol” at once prompt the query, “the same as what?” The expression must be taken to mean, the same as one you have otherwise already uncovered.  Naturally read, the words “find the same numerical symbol in a single game” mean “find the same numerical symbol at least twice in a single game”.  That would be the immediately occurring natural impression of the ordinary reader of these words.   The alternative approach urged upon the court is contrived. 

1. There is no particular justification or attraction in reading the reference to “the same” – as would the appellant - as relating back to the number ascribed to the particular game.  To read the instruction in that way would be rather complicated, the instruction becoming: “find in a simple game the same numerical symbol as the numerical symbol designating that game”.

1. Indeed, had that result been intended, the direction could have been cast much more simply: “To win game 1, uncover a number 1.  To win game 2, uncover a number 2.”  The less direct form of the direction on the tickets itself therefore suggests that manner of approach was not intended.

1. The appellant also relies on the description of the “game” as “roulette”.  Prior to the spinning of the roulette wheel, the gambler knows the symbol to be matched by the resting ball if the money is to be won.  As it was put, “it is the spinning of the roulette wheel which exposes the single, winning symbol, just as the scratching of the covering panel of each game on these tickets exposes the single, winning symbol”. 

1. The roulette analogy does not sit uncomfortably with the construction adopted by the learned judge.  That is because scratching off the coating progressively reveals the numbers beneath.  As soon as each number is uncovered, it becomes known to the owner of the ticket as a number which could possibly thereafter be matched.  One might compare the placing of the last wager and the commencement of the spin of the roulette wheel with the uncovering of the first number by the scratching of the panel. 

1. In any event, the plaintiff places too much significance on the naming of the game.  Naming things like this may involve considerable licence.  A scratch-it ticket, for example, is not, in usual parlance, a “casino game”:  the place where the coating is scratched from these tickets is usually not in casinos, but on footpaths outside newsagencies.

1. There is no need to deal with the submissions based on the Lotteries Rule made under the Lotteries Act 1994.

1. The construction adopted by the learned judge was correct.  The appeal should be dismissed with costs to be assessed.

1. McPHERSON JA:  I agree with the reasons of de Jersey CJ for dismissing this appeal with costs.

1. WILLIAMS J:  I agree with the reasons of de Jersey CJ for dismissing this appeal with costs.