Sobye v Levy - [1909] HCA 70

Special leave to appeal-Question of fact or law-Gaming and wagering-Gaming

and Betting Act 1906 ( V.S.W.) (No. 13 of 1906), secs. 3, - -Police Offences (Amendment) Act 1908 (N.S.W.) (No. 12 of 1908), sec. 21-Limerick com. SYDNEY,

petition-Lottery-Literary - kill-Selection according to merit-Arbitrary con-

The respondent was convicted under sec. 4 of the Gaming and Betting Act 1906, and the Police Offences (Amendment) Act 1908, sec. 21, of selling a ticket in a lottery, the alleged lottery being a Limerick competition. The respondent kept a tobacconist's shop, at which the appellant, upon pay- ment of 1/-, obtained two cigars and a ticket entitling him to compete in the Limerick competition, by supplying the last line of the Limerick. The ticket stated that the competition was entered into by the holder thereof upon the distinct understanding and agreement that the decision of the committee appointed by the respondent should be final and conclusive, and that £500

9 CLR 497

would be distributed. Evidence was given that a judge was appointed; that he examined all the lines sent in by the competitors; that prizes were awarded in accordance with his decision and that in making his award he considered the appropriateness of the line, the metre, and the rhyme. The Supreme Court held by majority, (Cohen J. dissenting), that the competition was not a lottery.

Upon an application for special leave to appeal against this decision, held, by Griffith C.J., Barton and O'Connor JJ. (Isaacs J. dissenting), that whether the competition was a lottery was a question of fact, and that leave to appeal should not be granted.

Held, by Isaacs J., that the facts were undisputed, and the decision of the Supreme Court was erroneous in point of law, and that leave to appeal should be granted.

Special leave to appeal from the decision of the Supreme Court of New South Wales Ex parte Levy, 9 S.R. (N.S.W.), 688 26 W.N. (N.S.W.), 134,

MOTION for special leave to appeal from a decision of the Supreme Court of New South Wales.

The respondent Levy was convicted upon an information under sec. 4 of the Gaming and Betting Act 1906, and sec. 21 of the Police Offences (Amendment) Act 1908, for that on 17th May 1909 he then being the occupier of a room in the Royal Arcade, Sydney, did knowingly allow the same to be used in contravention of the Act 1906 No. 13 as amended by the Act 1908 No. 12, in that the respondent did sell to one Nicholls a ticket for the disposal of money by lottery, to wit the Dudley Limerick.

Sec. 4 of the Act of 1906 No. 13 provides that 'every owner and every occupier of any house, office, room, or other place who knowingly allows the same to be used in contravention of this Act shall be liable to a penalty."

By sec. 3 of the Act of 1906 No. 13 as amended by sec. 21 of 1908 No. 12 it…

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 Sobye v Levy

Details

AGLC: Sobye v Levy [1909] HCA 70
Case: [1909] HCA 70
Decision Date: 19 November 1909

CaseChat Overview and Summary

The applicant, Sobye, sought special leave to appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The Supreme Court had, by majority, granted a prohibition against the conviction of the respondent, Levy, who had been charged with selling a ticket in a lottery, specifically a Limerick competition, contrary to the *Gaming and Betting Act 1906* and the *Police Offences (Amendment) Act 1908*.

The legal issue before the High Court was whether the Limerick competition constituted a lottery within the meaning of the relevant legislation. This involved determining whether the competition, which required participants to supply the last line of a Limerick and offered prizes based on the decision of a committee appointed by the proprietor, was a distribution of money by chance or whether the element of skill or judgment rendered it something other than a lottery.

A majority of the High Court, comprising Griffith C.J., Barton and O'Connor JJ., held that the question of whether the competition was a lottery was a question of fact. They reasoned that while a competition might involve an element of skill, it could still be a lottery if the transaction was ultimately fraudulent or if the distribution of prizes was by mere chance. However, as the determination of whether the scheme was a lottery depended on the specific facts of the case, and the Supreme Court had already made a finding on those facts, special leave to appeal on a question of fact would not be granted. Isaacs J., dissenting, considered the facts to be undisputed and believed the Supreme Court's decision was erroneous in law, arguing that the competition was a mere contrivance for the distribution of money by chance, despite the appearance of a literary competition, and therefore special leave should be granted.

The application for special leave to appeal was refused.

Orders