Tom & Bill Waterhouse Pty Ltd v Racing New South Wales

[2008] NSWSC 1013

Reported Decision: [2009] ALMD 5576
72 NSWLR 577
188 A Crim R 521

New South Wales

Supreme Court

CITATION:	Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013
HEARING DATE(S):	10 September 2008
JUDGMENT DATE :	29 September 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Plaintiff entitled to declaration; Plaintiff to bring in Short Minutes of Order in accordance with judgment.
CATCHWORDS:	STATUTORY CONSTRUCTION – Meaning of “publish” – meaning of “race field”. - DECLARATORY ORDER – DISCRETION – Whether declaration sought has utility – whether declaration should be made in question involving criminal law – whether State of New South Wales should have been joined as party.
LEGISLATION CITED:	- Interpretation Act 1987 (NSW) – s 5, s 8, s 21 - Racing Administration Act 1998 (NSW) – s 26A, s 27, s 29, s 30, s 31, s 32, s 33 - Racing Administration Regulation 2005 (NSW) – Reg 15(1) - Racing Legislation Amendment Act 2006 (NSW) – s.27, s 33, s 33A - Thoroughbred Racing Act 1996 (NSW) – s 4, s 5, s 11, s 13, s 14, s 14A, s 29
CATEGORY:	Principal judgment
CASES CITED:	- Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868 - Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651 - Bryanston Finance Ltd v de Vries [1975] 2 All ER 609 - Crane v Gething [2000] FCA 45 - Delacroix v Thevenot (1817) 2 Stark 63 (171 ER 573) - Deputy Commissioner of Taxation for South Australia v Ellis and Clark Ltd (1934) 52 CLR 85 - Gomersall v Davies (1898) 14 TLR 430 - Huth v Huth [1915] 3 KB 32 - Jackson v Hall [1980] AC 854 - Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 - Max Factor & Co Inc v Federal Commissioner of Taxation (1971) 124 CLR 353 - Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 - R v Secretary of State for the Home Department; Ex parte Daly [2001] 2 AC 532 - Robinson v Jones (1879) 4 LR Ir 391 - Sadgrove v Hole [1901] 2 KB 1 - State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd [2001] NSWCA 47; (2001) 51 NSWLR 399 - Theaker v Richardson [1962] 1 WLR 151 - Thorley v Lord Kerry (1812) 4 Taunt 355 (128 ER 367) - Traztand Pty Ltd v Government Insurance Office of New South Wales [1984] 2 NSWLR 598 The New Shorter Oxford English Dictionary
PARTIES:	Tom & Bill Waterhouse Pty Ltd (Plaintiff) Racing NSW (Defendant)
FILE NUMBER(S):	SC 4413/08
COUNSEL:	T.E.F. Hughes AO QC, M.R. Gracie (Plaintiff) D.M.J. Bennett AC QC, J.S. Emmett (Defendant)
SOLICITORS:	Jeffreys & Assoc (Plaintiff) Les Vance, Racing NSW (Defendant)

4413/08 Tom & Bill Waterhouse Pty Ltd v Racing New South Wales

JUDGMENT
29 September, 2008

Introduction

1    The Defendant, Racing New South Wales (“Racing NSW”), is a body corporate established by the Thoroughbred Racing Act 1996 (NSW) (“ TR Act ”) to control, supervise and regulate horse racing in this State. The Plaintiff (“TBW”) is a bookmaker licensed by Racing NSW to operate in respect of races conducted in New South Wales. 2    By an amendment to the Racing Administration Act 1998 (NSW) (“ RA Act ”), which came into effect on 1 September 2008, no person may publish certain information concerning a horse race in New South Wales unless authorised to do so by an approval granted by Racing NSW. The legislation provides that a person wishing to publish such information must apply for approval and Racing NSW may impose a fee or fees as a condition of granting it. The fees proposed to be charged by Racing NSW to a bookmaker for giving such approval is a percentage of the bookmaker’s turnover. 3    TBW has a very substantial revenue. It does not wish to pay the additional fee for approval to publish the proscribed information. It asserts that the way in which it conducts its business does not involve a publication of material which is prohibited by the new legislation, so that it does not need to seek the approval of Racing NSW. 4    The new legislation makes it a criminal offence to publish the proscribed information without the approval of Racing NSW. If TBW is wrong in its construction of the legislation and continues to conduct its business as it has previously done, it will be committing a criminal offence probably hundreds, if not thousands, of times every business day. The consequences for it could be very serious indeed. 5    TBW seeks a declaration from this Court that the way in which it conducts its business does not require it to apply to Racing NSW for an approval under the new legislation. Racing NSW contends to the contrary. Further, it says that a declaration of right should be refused, in the Court’s discretion, in the circumstances of this case. 6    Before setting out the issues to be determined, I must recount the relevant legislation and the facts which give rise to the problem.


The legislation

7 As I have mentioned, Racing NSW is a body corporate established by s 4 of the TR Act . Section 5 of that Act provides that Racing NSW does not represent the Crown and is not subject to direction or control by or on behalf of the Government. 8 Racing NSW has wide powers to regulate and control the racing industry in New South Wales: s 14. Amongst its powers is the power to impose fees and penalties in certain circumstances: s 14(l), s 14(m) and s 14(n). Amongst other things, it licenses bookmakers who may be natural persons or companies: s 14A. A person cannot carry on a business as a bookmaker in New South Wales without such a licence: RA Act s 26A. 9 Racing NSW acts in the interests of the public and the racing industry: TR Act s 11, s 13. If it makes a profit after providing for the welfare of the industry, it must distribute that profit to the Consolidated Fund. It must report annually to the responsible Minister and its reports are tabled in Parliament: TR Act s 29. 10 Prior to the amending legislation, s 33 of the RA Act provided:

“ Unauthorised race programs

(1) A person must not publish:

(a) a list of the horses or dogs nominated for any intended race that is to be held at any race meeting on a licensed racecourse, or

(b) a list of the horses or dogs that will or will not take part in any such race,

unless the publication of the list has been approved or authorised by the person. club or association conducting the race meeting.

Maximum penalty:

(a) for a first offence – l0 penalty units, and

(b) for a second or subsequent offence – 20 penalty units or imprisonment for 6 months (or both).”
11    It will be noted that no fee was to be charged for the granting of authority to publish the relevant information. 12    The object of the amending legislation was explained thus in the Second Reading Speech (Hansard NSW Legislative Assembly 20 October 2006):

“The obligation to obtain prior approval to publish race fields is directed principally at wagering operators. These are persons who profit from taking wagers on racing events. Wagering operators may publish a race field on their betting board when fielding at a racecourse, while taking bets over the telephone or by way of the operator's Internet site – or some similar form of electronic communication. These provisions do not capture other circumstances where race fields are published in an exclusively social setting such as an office sweep or in an authorised manner such as in a book or a magazine. The legislation provides that such circumstances may be exempted by way of regulations. There is no intention to change the status quo except that wagering operators who profit from publishing race fields must pay a fair price to the owners of that information.

The imposition of a fee is appropriate compensation for the use of the racing industry's race fields information. All revenue raised through those wanting to use New South Wales race fields would be fed straight back into the industry.”
13    The Racing Legislation Amendment Act 2006 (NSW) took effect on 1 July 2008 but operated upon TBW as from 1 September 2008. The RA Act , as amended, relevantly provides as follows:

“ 33 Publication of NSW race fields restricted

A person must not, whether in New South Wales or elsewhere, publish a NSW race field unless the person:

(a) is authorised to do so by a race field publication approval and complies with the conditions (if any) to which the approval is subject, or

(b) is authorised to do so by or under the regulations.

Maximum penalty:

(a) in the case of a corporation – 500 penalty units, and

(b) in any other case:

(i) for a first offence – 50 penalty units or imprisonment for 12 months (or both), and
(ii) for a second or subsequent offence – 100 penalty units or imprisonment for 2 years (or both).

33A Relevant racing control body may grant race field publication approvals

(1) The relevant racing control body in relation to an intended race (or class of races) to be held at any race meeting on a licensed racecourse in New South Wales may grant approval to a person to publish a NSW race field (a race field publication approval) in respect of that race or class of races if the person has made an application for that approval under this Division.

(2) A relevant racing control body may (but need not) impose any of the following kinds of conditions on a race field publication approval that it grants:

(a) a condition that the holder of the approval pay a fee or a series of fees of an amount or amounts and in the manner specified in the approval (being a fee or fees imposed in accordance with any requirements prescribed by the regulations),

(b) such other conditions as may be specified in the approval (being conditions of a kind that are prescribed as permissible conditions by the regulations).

(3) Any fee that is payable under a race field publication approval is a debt due to the relevant racing control body that granted the approval and is recoverable as such in a court of competent jurisdiction.”

By s 27, “race field” means:

“… information that identifies, or is capable of identifying, the names or numbers of the horses or dogs:

(a) that have been nominated for, or that will otherwise take part in, an intended race to be held at any race meeting on a licensed racecourse in New South Wales, or

(b) that have been scratched or withdrawn from an intended race to be held at any race meeting on a licensed racecourse in New South Wales.”

“Publish” means:
“… disseminate, exhibit, provide or communicate by oral, visual, written, electronic or other means (for example, by way of newspaper, radio, television or through the use of the Internet, subscription TV or other on-line communications system), and includes cause to be published.”
14    The principal issues for determination revolve around the meaning of “publish” and “NSW race field” . In order to appreciate the significance of the facts to be narrated, the reader needs to know that TBW says that “publish” , in relation to its activities, means “communicate to the world at large, or, at least, to a person outside TBW” . Racing NSW says “publish” means “communicate to any person, whether inside or outside TBW” . TBW says that “race field” means all the horses nominated or scratched for a particular race; Racing NSW says that “race field” includes any one horse nominated for, or scratched from, a race.


The conduct of TBW’s business

15    Mr Thomas Waterhouse, a director of TBW, gave evidence as to how TBW conducts its business, particularly as to the manner in which bets are taken. Racing NSW monitors and records all telephone bets placed in New South Wales. It produced recordings of a sample of telephone bets placed with TBW. They corroborated Mr Waterhouse’s evidence. 16    Mr Waterhouse gave his evidence frankly and carefully. It was not shown to be unreliable in any respect and I accept it without reservation. The following account is taken largely from Mr Waterhouse’s first affidavit. “We” and “me” are to be understood as referring to TBW:

“ Metropolitan Race Meetings:

4. At Metropolitan race meetings, we field bets on the ‘Interstate Ring’. We usually take bets and publish a board for races run in Melbourne, Brisbane, Adelaide and Perth. We are not permitted to publish a board for horses racing in New South Wales.

5. We are however permitted to take bets on races run in New South Wales. The way in which we take those bets is over the telephone or by a client coming over to our stand and talking with me.

Telephone Bets:

6. We are licensed to use an oncourse telephone within the rules of racing. Our practice when taking telephone bets is as follows. Our clients have my telephone number. Should a client wish to bet with me on a Sydney race, the client nominates the horse and the race number, I tell them the price, they tell me the amount they wish to place a bet for on the horse, I or my staff then print a ticket for the bet by placing the information into my race course computer which then prints the ticket. I never tell them the names of each of the horses in the field. They invariably know before they telephone me.

Non telephone/Face to Face bets:

7. Our practice when taking face to face bets is as follows. Our clients come over to our stand. Should a client wish to bet with us on a Sydney race, the client nominates the horse or the number of the horse and the race number, I tell them the price, they tell me the amount they wish to place a bet for on the horse, I or my staff then print a ticket for the bet by placing the information into my race course computer. I hand the ticket to my client.

8. We do not display a race board for NSW Races with odds for each horse. The reason my customers bet with us in this way is because they usually have an account with me, rather than betting with other bookmakers who they may not have an account with.

Provincial Races

9. I have in the past, attended provincial races in New South Wales. At those races, we would often (but not always) publish a board on interstate races and also publish a board in relation to the fields at those provincial meetings. We do not intend publishing a board in relation to NSW fields at provisional meetings after 1 September 2008.

On-Course Computer System:

10. We, like all other bookmakers at the races, are required to have an approved computer system which the company hires at the race course which have a special computer programme to run our bookmaking business. The computer operates the ticketing machine and allows us to produce such information as the betting stewards and the rules of racing require.

11. In the computer programme is a list of each race field. This allows me or my clerks to enter the bets we take on each race.

12. … The only persons who have access to my computer are myself, my grandfather and my clerical staff.”
17    In his second affidavit Mr Waterhouse amplified his earlier evidence as to how the computers are used, as follows:

“4(b) … an arrangement has been entered into by the Plaintiff with Mr Greg Cook/Multibet Systems whereby a race meeting fee is paid by the Plaintiff to Mr Cook/Multibet Systems pursuant to which Mr Cook or an employee of his, delivers to the Plaintiff at the race meeting a computer or computers and ancillary equipment. The fee charged to the Plaintiff is determined by the number of computers hired on each occasion.

4(c) The computer provided to the Plaintiff by Mr Cook/Multibet Systems contains Multibet software which has, to the best of my knowledge and belief, been approved by either Racing NSW or the Department of Gaming and Racing (I am not sure of the exact nature of that approval process) and that software contains relevant race fields for that race day throughout Australia.

4(d) At the end of the relevant race fixture an employee of Mr Cook/ Multibet Systems collects the computer and ancillary equipment.

5. Under the Plaintiff’s arrangement with Mr Cook/Multibet Systems, the Plaintiff’s employees access the approved computer system and computer programmes supplied with the computers for the purpose of running the Plaintiff’s bookmaking business. By the term ‘access’ I mean that when a client wishes to place a bet with the Plaintiff and advises an employee of the Plaintiff of the horse and race number, the relevant employee of the Plaintiff will access the computer for the purpose of entering and recording their relevant bet in accordance with the rules of racing. I crave leave to refer to the Rules of Racing.

6. The utilisation of the approved computer system is an inherent requirement of the rules of racing by which a licensed bookmaker is obliged to record by electronic data all transactions undertaken at each race meeting. Also, it is a requirement of Rule 91 of the Rules of Racing that a betting ticket is issued to a customer in respect of all bets taken at a race meeting unless that bet has been placed by telephone (or via the internet).

7. All data contained in the computer or computers which the Plaintiff utilises at such a race fixture can at any time be accessed by Racing NSW or by Mr Cook/Multibet Systems.

8. I refer to the last sentence of paragraph 12 of my former Affidavit. The clerical staff referred to by me, are all employees of the Plaintiff. Other than as referred to by me in paragraph 7 above, there are no people who have access to the approved computer system utilised by the Plaintiff who are not directors or employees of the Plaintiff. By way of further clarification, not all clerks access the computer but only those clerks who record bets. There is no occasion, reason or requirement for any employee of the Plaintiff who has access to the Plaintiff’s approved computer system to in any way publish, disseminate, exhibit, provide or communicate orally, visually, in writing, by electronic or any other means a NSW race field to any person who is not a director or an employee of the Plaintiff.”
18    A sample of eighteen telephone bets placed with TBW recorded by Racing NSW shows that no caller ever asked what horses were running in a particular race. All already knew the horse or horses upon which they wished to bet and all wanted to know what odds they could get. In only one of the sampled calls was the caller informed that the horse he wished to back had been scratched. Mr Waterhouse, in his oral evidence, said that it was extremely rare that he or his staff informed a client that a horse had been scratched. 19    In almost all sampled recordings it was clear that the caller was known to Mr Waterhouse and his staff. In placing the bet, the caller would often refer to the number of the horse in a particular race. Sometimes, he would refer to the name of the horse. Mr Waterhouse, or the member of TBW staff taking the call, would often repeat the name or number of the horse to the caller to confirm that it was correct. The sample of the recorded bets confirms TBW’s assertion that its clients did not need to be informed of the identity of horses in a particular race at the time they placed their bets: they already knew the field for that race and had made their decisions.


The issues

20    By its Amended Summons, TBW seeks the following declarations:

“A declaration that the Plaintiff when carrying on its business in New South Wales or elsewhere in Australia as a licensed bookmaker on races held at a race meeting on a licensed racecourse in New South Wales does not require the approval of Racing NSW as the relevant racing control authority in NSW to publish a ‘NSW race field’ as that expression is defined in section 33 of the Racing Administration Act 1998 if for the purpose of dealing with persons who may wish to place bets with the Plaintiff at such a race meeting it accesses by its directors or employees a NSW race field by recourse to an approved computer provided by another person to the Plaintiff for a fee at each race meeting without revealing to anyone other than a director or employee of the Plaintiff any information that identifies or is capable of identifying the names or numbers of the horses:

(a) that have been nominated for, or that will otherwise take part in, an intended race to be held at any race meeting on a licensed racecourse in New South Wales, or

(b) that have been scratched or withdrawn from an intended race to be held at any race meeting on a licensed racecourse in New South Wales.

2. Further and in the alternative, a declaration that the Plaintiff when carrying on its business in New South Wales or elsewhere in Australia as a licensed bookmaker on races held at a race meeting on a licensed racecourse does not require the approval of Racing NSW as the relevant racing control authority in NSW to publish a ‘NSW race field’ as that expression is defined in section 33 of the Racing Administration Act 1998 if for the purpose of dealing with persons who may wish to place bets with the Plaintiff at such a race meeting it utilises a computer programme lawfully made available to it with the consent of Defendant by an entity known as Multibet which programme identifies or is capable of identifying the names or numbers of the horses:

(a) that have been nominated for, or that will otherwise take part in, an intended race to be held at any race meeting on a licensed racecourse in New South Wales, or

(b) that have been scratched or withdrawn from an intended race to be held at any race meeting on a licensed racecourse in New South Wales.”
21    The issues may be summarised thus:


– does the communication of information relating to a race field amongst directors and staff of TBW constitute a “publication” of that information within the meaning of RA Act s 33;

– does the communication of the identity of a single horse running in, or scratched from, a particular race constitute the publication of the “race field” for the purposes of s 33;

– should a declaration be refused in the Court’s discretion because:

the State of New South Wales should have been joined as a party to the proceedings; or

the questions asked are hypothetical; or

the Court should not intervene in potential criminal proceedings; or

the declaration would lack utility.



The meaning of “publish”

22    The word “publish” has two meanings: the ordinary or common meaning which the layman would use, and the technical meaning which a defamation lawyer would use. To a layman “to publish” ordinarily means to make generally known, declare or report openly, proclaim, bring something to public notice, or make information generally accessible or available: see e.g. New Shorter Oxford English Dictionary . The word derives from “publicus” and connotes making something known or available to the world at large. 23    To a defamation lawyer, however, “to publish” has a highly specialised meaning – some would say, indeed, a meaning which includes the very opposite of its meaning outside defamation law. In defamation law “to publish” is to communicate defamatory material to a person other than the person defamed. One person will suffice. For example, if a husband opens a letter addressed to his wife and finds in it matter defaming his wife, the writer of the letter has “published” the letter to the husband for purpose of the law of defamation: Theaker v Richardson [1962] 1 WLR 151. 24 The law of defamation was developed at a time when those with money and position were enthusiastic in their recourse to the law to vindicate affront to dignity, reputation or feelings. It was an age, too, in which one’s livelihood and position in life could be ruined by scandal within a relatively small social or economic community. In such an age, fine distinctions were made by the Courts as to what was a “publication” of defamatory material and what was not. 25    So, for example, if a man wished to annoy his wife by writing her an insulting letter, he would have published an actionable defamation if he wrote the diatribe on a postcard and mailed it to her, even if he proved positively that no one had ever read the postcard apart from his wife: Robinson v Jones (1879) 4 LR Ir 391; Huth v Huth [1915] 3 KB 32. But he would not have “published” the defamation if he had folded the letter and sealed it with a wax seal, even if the servant to whom he gave the letter for delivery opened and read it: Thorley v Lord Kerry (1812) 4 Taunt 355 (128 ER 367). He might well have published the defamation if he put the letter in an envelope which he did not seal but gummed its flap down before handing it to his servant. The risk that he had actionably published the letter was increased if he did not lick the gum on the flap. The risk was reduced if he put a penny stamp on the envelope before mailing it, but was increased if he could only afford a half-penny stamp because post office officials would have the right, almost never exercised, to open a half-penny stamped letter in the course of delivery. Again, even if he gummed the flap of the envelope down before mailing it, the risk of actionable publication was increased if he did not write “Private” on the front of the envelope. However, he was quite safe if he put the letter to his wife in an envelope, did not write “private” on it, did not gum the flap down and mailed it with a half-penny stamp if, in the event, the letter happened to be read on delivery by his wife’s curious butler: see e.g. Delacroix v Thevenot (1817) 2 Stark 63 (171 ER 573); Gomersall v Davies (1898) 14 TLR 430; Sadgrove v Hole [1901] 2 KB 1; Huth v Huth (supra). 26    I do not give these examples to hold the law of defamation up to ridicule. The distinctions which the courts drew as to what was, and what was not, “publication” of a defamation had a rationale in the social and legal environment of their time. However, these examples show that the law of defamation has loaded the word “publish” with a gloss which would seem bizarre to all but the cognoscenti. Would anyone but a defamation lawyer say that she had “published” her first novel if all that she had done was to ask her husband to read the manuscript before she sent it to potential publishers? Would anyone but a defamation lawyer say that he had “published” a private letter if all that he had done was to dictate it to his secretary for typing? However, both examples would constitute a “publication” in the law of defamation: e.g. Bryanston Finance Ltd v de Vries [1975] 2 All ER 609. 27 In this case Mr Bennett QC, who appears with Mr J. Emmett of Counsel for Racing NSW, relies on defamation cases such as Bryanston Finance v de Vries (supra) in submitting that TBW “publishes” the race field for the purposes of s 33 of the RA Act if he does no more than cause the names of horses in a particular race to be passed from one of its employees to another of its employees for the purpose of enabling those employees to take bets and process them. According to Mr Bennett, TBW “publishes” the race fields by causing Multibet’s computers to be available to TBW’s employees so that they can access the race fields made available by Multibet. It makes no difference that the information provided on the computers must be used under the rules of racing to record bets. 28    I enquired of Mr Bennett in the course of argument whether it followed from his submissions that if Mr Waterhouse, as a director of TBW, walked into his office in the morning and laid the Daily Telegraph containing the form guide on an employee’s desk, he had “published” the race fields contained in that form guide to the employee and had committed a criminal offence for which he could be imprisoned for twelve months. With a flinch perceptible to none but the judicial eye, Mr Bennett said that this was so. 29    In the course of argument, Mr Bennett went further than the example I suggested. He says that “to publish” , in s 33, includes to communicate to a single person and a “race field” includes the name of, or information capable of identifying, a single horse entered in, or scratched from, a race. He says that it does not matter that the person to whom the name of the horse is given already knows it – there is still a publication of a race field. He says it does not matter that the person saying the name of the horse is merely repeating what has been said to him or her a moment before. So, Mr Bennett says, when a client calls TBW and says that he wishes to place a bet on horse “x” in the fifth race at Randwick, and the employee repeats “‘x’ in the fifth at Randwick”, TBW has “published” a “race field” to the caller, within the meaning of s 33. 30    Let me explore a little the consequences of Mr Bennett’s submission. Assume the following scenario. Darby and Joan are small punters who have been in a betting partnership for years. They bet a total of $500 on average per week. They are modestly successful to the extent that they scrupulously lodge partnership income tax returns disclosing their profits. Because “person” is not defined for the purpose of s 33 RA Act as having any special meaning, Darby and Joan are “persons” for the purposes of the section. Because they are betting for profit, their communications are not exempted from the provisions of s 33 by Reg 15(1)(a) of the Racing Administration Regulation 2005 (NSW). 31 Darby and Joan meet once a week to decide on their bets. Unfortunately, they have neglected to apply to Racing NSW for a race field publication approval under s 33B before speaking to each other tonight. They study the form guide in the newspaper carefully and the following ensues:

Darby: “What about the fifth at Randwick tomorrow? I fancy Frostbite” (thereby committing a breach of s 33 and rendering himself liable to a year’s imprisonment).

Joan: “Frostbite? No way. My money’s on Bumblebee” (thereby committing two breaches of s 33 and rendering herself liable for three years’ imprisonment).

Darby: “Frostbite’s got a good pedigree and he’s a great stayer. On the other hand, Bumblebee’s had some good wins lately. What about Palmtree Justice?” (Thereby committing three more breaches and rendering himself liable for a total of seven years’ imprisonment.)

Joan: “Palmtree Justice is scratched, as usual. I can’t really decide between Frostbite and Bumblebee” (thereby committing another three breaches and rendering herself liable for a total of nine years imprisonment).

32 If Darby and Joan continue discussing the merits of Frostbite and Bumblebee for another five minutes, they will be repeat offenders of the worst kind and will earn themselves life sentences in the process. I find it difficult to believe that this is the consequence intended by the Government in enacting the new s 33 RA Act . 33    In construing a statute, the Court does not isolate a word such as “publish” and afford it a meaning “torn from its context” : Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249, at [37] per Kirby J; R v Secretary of State for the Home Department; Ex parte Daly [2001] 2 AC 532, at [28] per Lord Steyn. The context of legislation is especially important “where a term used in a statute has both a technical legal meaning and an ordinary meaning of everyday speech. The search is always for the legislative purpose, and unthinking importation of technical legal meanings into statutory interpretation cannot be permitted if they would frustrate the intention of the legislature. Indeed, the correct question is not whether a legal or an ordinary meaning should be given to a particular statutory term. Rather, it is what is the natural and ordinary meaning of the language as read in its context and with attention to the legislative purpose and available materials that disclose that purpose” : Palgo Holdings (supra) at [41] per Kirby J. 34 In ascertaining the context in which s 33 is set, it is instructive to pay attention to the other sections in Pt 4 of the RA Act in which the word “publish” is used. In this regard, it is important to bear in mind the definition of “publish” in s 27:
“ publish means disseminate, exhibit, provide or communicate by oral, visual, written, electronic or other means (for example, by way of newspaper, radio, television or through the use of the Internet, subscription TV or other on-line communications system), and includes cause to be published.”
35    Section 29 provides:

“ Publication of betting information

(1) A person must not publish any betting information.

Maximum penalty: 50 penalty units or imprisonment for 12 months (or both).

(2) Subsection (1) does not operate to prohibit:

(a) the publication in a newspaper of the betting or betting odds on any race to be held at a race meeting, so long as that information:

(i) is contained in an edition of the newspaper that is printed, or in respect of which printing has commenced, not less than 30 minutes before the advertised starting time of the first race to be held at the race meeting, and

(ii) is identical in all copies of that edition of that newspaper, or

(b) the publication, by any other means, of the betting or betting odds on any race to be held at a race meeting, so long as that information is made publicly available not less than 30 minutes before the advertised starting time of the first race to be held at the race meeting, or

(c) the publication of any betting information after the scheduled starting time of the last race intended to be held at a race meeting.”
36 Sections 30 and 31 of the RA Act provide:

“30 Advertising betting information and betting services

(1) A person must not publish an advertisement:

(a) indicating that the person (or any other person) is prepared:
(i) to provide betting information, or
(ii) to bet on any race that is to be held at a race meeting, or
(iii) to bet on any sports betting event, or

(b) that is designed to induce a person to obtain betting information, or

(c) that invites any person to make, or take a share in, a bet on any horse race, harness race, greyhound race or sports betting event, or

(d) that relates to any gambling operations or services carried on by a person who is not a licensed bookmaker.

Maximum penalty: 50 penalty units or imprisonment for 12 months (or both).

(2) Subsection (1) does not operate to prohibit:

(a) a licensed bookmaker from exhibiting, on a licensed racecourse on a day on which a race meeting is being held on the racecourse, any written or printed matter relating to the betting or betting odds on a race that the bookmaker is prepared to accept or offer, or

(b) an advertisement relating to a licensed bookmaker to the effect that the bookmaker is prepared to accept bets electronically or by telephone, so long as:
(i) the bookmaker is authorised by section 16 to engage in telephone or electronic betting, and
(ii) the advertisement complies with the conditions (if any) to which the authority is subject, or

(c) an advertisement relating to a licensed bookmaker to the effect that the bookmaker is prepared to accept bets in an authorised betting auditorium, or

(d) an advertisement relating to an authorised sports betting bookmaker, so long as the advertisement is confined to the following information:
(i) the name and contact details of the bookmaker,
(ii) the location of the licensed racecourse at which the bookmaker is prepared to accept bets on sports betting events,
(iii) the sports betting odds that the bookmaker is prepared to offer, or

(e) a licensed bookmaker from exhibiting, in an authorised betting auditorium, any written or printed matter relating to the betting or betting odds at which the bookmaker is prepared to accept a bet, or

(f) a licensed bookmaker from exhibiting, on a licensed racecourse, any written or printed matter relating to the betting or betting odds on a sports betting event that the bookmaker is prepared to accept or offer, or

(g) the publication of an advertisement or other notice relating to a licensed bookmaker, but only if the contents of the advertisement or notice are confined to the following:
(i) a statement of the name of the bookmaker,
(ii) the racecourse on which the bookmaker will operate,
(iii) the location of the authorised betting auditorium from which the bookmaker is prepared to accept or offer bets, or

(h) a person from organising or promoting a punters’ club in accordance with section 14.

(3) A person must not provide by means of the Internet, subscription TV or other on-line communications system any service that enables a person:

(a) to access the gambling operations carried on by any person other than:
(i) a licensed bookmaker, or
(ii) the holder of a licence under the Totalizator Act 1997, or

(b) to access information relating to those gambling operations.

Maximum penalty: 50 penalty units or imprisonment for 12 months (or both).

(4) The regulations may exempt any person, or class of persons, from the operation of subsection (3) in such circumstances, and subject to such conditions, as may be specified in the regulations.

31 Premises used for publishing betting information or betting services

(1) A person is guilty of an offence if the person:

(a) uses premises for the purpose of publishing:
(i) betting information, or
(ii any advertisement that relates to any betting services, or

(b) knowingly permits premises to be used for such a purpose, or

(c) has the control or management of premises that are used for such a purpose, or

(d) is involved in conducting a business on premises that are used for such a purpose.

Maximum penalty: 50 penalty units or imprisonment for 12 months (or both).

(2) This section does not operate to prohibit:

(a) information being provided to persons who are at a licensed racecourse when betting at the racecourse is lawful, or

(b) information being provided by a licensed bookmaker who is at a racecourse, so long as the information:
(i) is provided on a day on which a race meeting is being held on the racecourse and in response to a telephone or electronic request by a person who is not on the racecourse, and
(ii) relates to a bet with the bookmaker in accordance with an authority held by the bookmaker under section 16, or

(c) information being published in the manner referred to in section 29 (2) (c), or

(d) information being provided in any manner referred to in section 30 (2), or

(e) information being provided in accordance with section 32, or

(f) information being provided to persons who are in an authorised betting auditorium, or

(g) information being provided from an authorised betting auditorium, so long as the information:
(i) is provided by a licensed bookmaker in response to a request by a person who is not at the racecourse, and
(ii) relates to a bet that is made with the bookmaker in accordance with an authority held by the bookmaker under section 16.”
37    In my opinion, these sections make it quite clear that what is meant by “publishing” is a communication to the world at large, not a private communication between two individuals, much less a communication solely between two employees of the same corporation. I see no reason why “publish” should have one meaning in ss 29 to 31 of the RA Act and a different meaning in s 33. 38 It is quite true that, in introducing the new s 33 into the RA Act , the Minister concluded his Second Reading Speech by saying: “the imposition of a fee is appropriate compensation for the use of the racing industry’s fields information” (emphasis added). But “to use” and “to publish” are not interchangeable. One may use information by publishing it (in both the ordinary and the defamation senses) but one may also use information without publishing it: for example, by making and implementing a decision based upon information which one does not disclose to anyone else. If the legislature had wished to impose a fee on bookmakers for the “use” of race field information, regardless of the infinite variety of ways in which the information could be used, it would have been easy and obvious to frame s 33 RA Act to provide that “a person must not … use … a race field for commercial purposes unless …” . One can readily imagine the myriad problems which such a wide legislative prohibition would immediately create. This, doubtless, explains why the section fastens upon “publish” as the criterion for prohibition. Yet Mr Bennett’s submission invites the Court to extend the meaning of “publish” until it is virtually synonymous with “use” . 39    Mr Bennett says that support for the “defamation” meaning of “publish” in s 33 is to be found in Reg 15(1)(b) of the Racing Administration Regulation , which exempts from the prohibition in s 33:

“ Authorisations to publish NSW race fields: section 33 (b)

(1) The following publications of NSW race fields, whether in New South Wales or elsewhere, are authorised:

…

(b) a publication by any of the following bodies for its internal administrative or regulatory purposes :

(i) a relevant racing control body,

(ii) a body that corresponds to a relevant racing control body under the legislation of another State or Territory,

(iii) the Australian Racing Board,

(iv) Harness Racing Australia Inc.,

(v) Greyhounds Australasia Limited,

…” (Emphasis added)
40    Mr Bennett submits that the exception of publication by specified bodies “for internal administrative or regulatory purposes” means that, but for such exemption, such internal uses would be “publications” within the meaning of s 33 RA Act . 41    I am unable to accept that Reg 15(1)(b) lends any substantial weight to the definition of “publish” for which Racing NSW contends. 42    First, as Mr Bennett frankly concedes, delegated legislation should not usually be invoked to construe words used in the principal legislation. The point was made by Deane J in the course of submissions by Mr Bennett himself in Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651, at 652 when his Honour remarked:
“It is generally accepted that one looks at regulations only as an indication of what a government department thinks about the construction of an Act.”

Viscount Dilhorne and Lord Fraser of Tullybelton had made the same point in Jackson v Hall [1980] AC 854, at 884H and 889G.

43    However, if an Act and the Regulations together form a cohesive, unified legislative scheme, the whole of the scheme should be looked at to understand the purpose of the legislation as an aid to construction. Such was the case with the “single legislative scheme” embodied in the sales tax legislation: see e.g. Deputy Commissioner of Taxation for South Australia v Ellis and Clark Ltd (1934) 52 CLR 85, at 88ff; Max Factor & Co Inc v Federal Commissioner of Taxation (1971) 124 CLR 353, at 360; Brayson Motors (supra) at 656-7. 44 The RA Act does not embody a “single legislative scheme”. It deals with many different aspects of the administration and welfare of the racing industry. So do the Regulations made under the Act from time to time. 45    Second, I am far from persuaded that Reg 15(1)(b) is any more than a precautionary statement of the obvious, inserted to avoid any controversy whether certain publications by specified bodies are subject to s 33. To conclude that Reg 15(1)(b) infuses “publish” in s 33 of the Act with a meaning which it would not otherwise bear is to allow a very small tail to wag a very large dog. 46    There is no justification for reading the word “publish” in the RA Act as having any meaning other than its ordinary meaning. It means “communicate to the world at large” ; it does not include the meaning which the word has as a term of art in defamation law. I conclude that communication of a race field by one officer or employee of a corporation to another officer or employee of that corporation for the purposes of the corporation is not, in itself and without more, a publication of that information within the meaning and operation of s 33 RA Act .


Analogy from defamation law

47    In deference to the thorough arguments of both senior counsel founded on State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd [2001] NSWCA 47; (2001) 51 NSWLR 399, I make some observations about that case. 48 The appellant bank sent bank statements for Currabubula’s account to Currabubula with the notation “in liq” at the end of the balance column. Currabubula sued the bank, inter alia, for defamation claiming that “in liq” falsely implied that the company was insolvent and that a liquidator had been appointed to it. The company succeeded at first instance but the judgment was reversed on appeal. Of relevance for present purposes are the observations of Giles JA (with whom Heydon JA and Ipp AJA agreed) on what constitutes publication of defamatory material. 49    The bank had sent the bank statements by fax to the company at its office. Currabubula was part of a group of companies which conducted their businesses from the same office. There was no evidence that anyone outside the group’s office had seen the faxes. There was no evidence that any employees of companies in the group had seen the faxes other than those employees of Currabubula itself whose business it was to see them. 50    Currabubula alleged, however, that the fact that the bank had sent the faxes to Currabubula and that they were seen by those officers of Currabubula whose business it was to see them constituted publication of the defamatory material to persons other than the company. It relied on the decision of Hunt J (as he then was) in Traztand Pty Ltd v Government Insurance Office of New South Wales [1984] 2 NSWLR 598. His Honour, a most eminent defamation judge, had there held that, as a corporation, its officers and its employees are separate legal persons, a defamatory statement about the corporation made to its officer or employee is not made solely to the person defamed, i.e. the corporation, so that the defamation has been “published” for the purposes of a defamation suit. 51    Giles JA, at [116], did not agree. His Honour took by way of example a communication to a director of a company who can properly be said to be the company’s “alter ego” – e.g., he is the sole director and shareholder and there are no employees. There would be no way of communicating information to such a company unless the communication were made to its “alter ego”, the director. His Honour noted that, if Traztand is correct, a communication of defamatory material to the company, intended to go no further than to the company itself, must inevitably result in publication of a defamation. His Honour observed:
“With the utmost respect, may not an approach which is artificial in the extreme and makes defamation proceedings difficult to justify be flawed?”
52    There being no relevant Australian authority on the point, Giles JA considered the American and Canadian authorities to the effect that, for the purposes of the law of defamation, a communication to the officers or employees of a corporation whose business it is to receive that communication is a communication to the company itself and not a publication to a third party. His Honour concluded that:
“Communication to someone who happens to be the employee of a company can be publication [in defamation law] , but communication to a company by its employee is not publication” : at [125].
(Emphasis added)
53    Giles JA went on to consider the case of intra-company communications, i.e. when an employee whose business it is to communicate a statement about the company communicates it to another employee within the company whose business it is to know of that statement. His Honour referred to what is said to be a minority view in the United States which holds that as the company can only transmit knowledge within its organisation by the process of its employees communicating with each other, intra-corporate communications are not “publications” in defamation law because “they are the legal equivalent of talking to one’s self” : at [126]-[128]. His Honour noted, however, that there is a divergence of views on the point in the United States and that there is authority to the contrary in the United Kingdom and in a decision of Hunt J in Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364. 54 Because Currabubula had pleaded that publication of the defamation had consisted in the bank faxing the statements to employees of the company whose business to receive them, not in the communication of the contents of those faxes by one employee to another, Giles JA did not have to express a concluded opinion as to whether the latter type of communication could constitute a publication. However, at [129] his Honour said:
“I prefer the view that intra-company communications do not necessarily constitute publication for the purposes of the law of defamation, but in any event they may be distinguished from communications to a company received by its employee. I consider it open to hold that a communication to a company which, because the company can only act by natural persons, is received by someone on behalf of the company in the ordinary course of business, is communication only to the company and does not constitute publication. This is not confined to receipt of the communication by the company's managing director and alter ego, but includes receipt by any employee receiving the communication on behalf of the company. In my opinion it should be so held. Notwithstanding the high respect to be afforded to what was said by Hunt J in Traztand Pty Ltd v Government Insurance Office of New South Wales , particularly as a decision in the field of defamation, to the extent to which his Honour held otherwise (and I am not sure that he did) I am unable to agree.”
55    If it had been necessary for me to accept the principles of defamation law as a guide in interpreting the meaning of “publish” in the RA Act , I would have adopted the view preferred by Giles JA in Currabubula , i.e. that it is not a publication in defamation law for an employee of a company to communicate information to another employee where it is the business of both employees to give and receive that information for the company’s purposes. I would have held, by analogy, that if such a communication is not a “publication” in defamation law, still less is it a “publication” in the ordinary meaning of that word. The result, by a more circuitous route than I have earlier followed, would still have been that an employee of TBW who communicates a race field to another employee for the purpose of carrying on the business of TBW does not “publish” that race field within the meaning of s 33 RA Act.


What is a “race field”

56    The evidence shows that in the course of receiving enquiries or taking bets from a client, TBW identifies to the client a particular horse in a race, either by confirming the name or number of the horse upon which the client wishes to bet or, much less frequently, that the horse has been scratched. As I have noted above, Racing NSW says that this communication, even if only repeating the name or number of one horse given to it by the client, is a publication by TBW of a “race field” within the definition of that term in s 27. 57    TBW says that even if a statement to one customer could be a “publication” within the meaning of that term in the Act, such a publication is not caught by s 33 RA Act because the publication of the identity of a single horse is not the publication of a “race field” . Mr Hughes submits that “race field” means all the horses running in the race, not just one of them. As he pithily puts it: “You cannot have a one horse race” . 58    Mr Bennett submits that in the definition of “race field” the plural expression “names or numbers of horses or dogs” should be taken to include the singular expression “name or number of a horse or a dog” . He relies upon s 8(c) of the Interpretation Act which provides that “a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form” . 59 Section 8(c) is not, however, absolute or unqualified. Section 5(2) of the Interpretation Act provides that the Act applies “except in so far as the contrary intention appears … in the Act or instrument concerned” . Further, s 5(4) provides that “nothing in this Act excludes the application to an Act or instrument of a rule of construction applicable to it and not inconsistent with this Act” . In short, s 8(c) of the Interpretation Act is not to be applied where to do so would defeat the intention of the legislature or would result in absurdity. 60 In my opinion, s 8(c) of the Interpretation Act does not apply here in the way in which Mr Bennett suggests it does. While the section readily transforms the number of a noun from singular to plural, and vice versa, it cannot change the meaning of that noun, whether in the singular or plural number. 61    “Field” , in the context of a sporting event, is a collective noun, singular in number. It means all those competing in an event, or all save a specified one. The New Shorter Oxford English Dictionary gives the example: “They’re into the straight mile – Minnow leads the field around the bend” . 62 The singular/plural rule of construction embodied in s 8(c) Interpretation Act can readily be applied to a collective noun such as “field” or “team” so as to include the plural forms “fields” or “teams”. However, the rule does not readily permit a singular collective noun to be read as meaning each or any of its constituent parts. For example, if one says “our team won the competition” one cannot, by applying the singular/plural rule, substitute “player” for “team”. “Player” and “team” are words with completely different meanings. Again, if one says of a horse race “it was an exceptionally strong field”, one cannot substitute “horse” for “field”. 63    However, in the present case, Mr Bennett says that “horse” can be substituted for “field” for the purpose of s 33 by applying the singular/plural rule to the phrase “names or number of the horses or dogs …” in the definition of “race field” . One then arrives at a definition of “race field” which reads: “ … information that identifies … the name or number of a (not the ) horse or dog that has been nominated for … an intended race or … that has been scratched”. 64 The legislature can, of course, define a particular word, as used in legislation, to mean anything at all – even the very opposite of its ordinary meaning. But when it does so, it makes its intention expressly and manifestly clear in the words of the definition. It would be dangerously uncertain to leave a complete change in the ordinary meaning of a word used in legislation to be effected indirectly by recourse to the singular/plural rule in s 8(c) Interpretation Act . I cannot accept that the legislature has done so in this case. 65    In my opinion, “race field” as defined in s 27 RA Act has the meaning which it ordinarily bears as a collective noun. The definition seeks to capture information which enables a person intending to place a bet to identify all those horses in a race upon which he or she can bet. It does so by referring to the two part process which results in a “field” : nominating horses for a race and scratching horses from that race. Only when the two part process is complete are all horses actually running in the field ascertained. 66    Subparagraph (a) of the definition provides that a “race field” means information which identifies all horses nominated for a race. In a particular race there may be one scratching, more than one, or none. To identify all scratchings, or that there are no scratchings, in any particular race is to identify the field that will actually run. To identify one scratching without saying whether it is the only scratching does not identify the field – there may be other unidentified scratchings. 67    Accordingly, a “race field” within subparagraph (b) of the definition which identifies scratchings must be one which identifies all scratchings, or that there are no scratchings. If only one scratching is identified, it must be identified in such a way as to make clear that it is the only scratching. In no other way can the definition of “race field” in subparagraphs (a) and (b) make sense. 68    The evidence shows that TBW does not display anywhere in view of the public a list of names of horses running in, or scratched from, races. In response to betting enquiries, it does not volunteer the names of all horses nominated for a race, nor does it volunteer the names of all horses scratched from a race, or that no horses have been scratched from a race. The staff will only refer to a particular horse to confirm the bet placed on it, or the odds available, or to advise that it has been scratched. There is no suggestion that further information as to scratchings is given, e.g. that the horse upon which the customer wanted to bet is the only scratching in the race. 69    In the result, therefore, I conclude that:


– by accepting and confirming a bet on one or more horses in a particular race, without disclosing all horses nominated or actually running in the race; and

– by informing a customer that the horse upon which he or she wished to bet has been scratched from the race, without disclosing all horses scratched from the race or that the scratched horse is the only scratching,

TBW does not publish a “race field” within either limb of the definition in s 27, for the purposes of s 33 RA Act .



Utility of declarations sought

70    Declaration 1 sought by TBW refers only to the communication of information passing between its officers and employees. I have concluded that such communications do not constitute “publishing” for the purposes of s 33. Declaration 2 refers to “utilising” information provided by Multibet, but does not specify further what is involved in “utilising” that information. Mr Bennett submits that the declaration is too widely cast and should not be made. I agree. 71 Further, as Mr Bennett rightly submits, a declaration only in terms of Declaration 1 should not be made because the wording suggests that requirement for approval under s 33A depends only on the legal character of the communications passing between TBW’s officers and employees. TBW communicates information about horses in particular races to its customers as well. Only if all aspects of TBW’s communications about horse races fall outside s 33 RA Act is there no requirement for TBW to apply to Racing NSW under s 33A. I do not see the utility of making a declaration concerning only part of TBW’s business activities. 72    However, because TBW wishes to know whether it must now apply under s 33A in order to continue its business, it seeks “such other declaration as the Court thinks fit” . For the reasons I have given, I conclude that, as TBW presently conducts its business, its communication of information as between its own officers and employees and as between itself and its customers does not constitute publishing a NSW race field, for the purposes of s 33. A declaration should be appropriately framed, in accordance with these reasons, if it is to have any utility.


Discretionary considerations

73    While Racing NSW accepts that this Court has jurisdiction to make a declaration as to whether proposed conduct would constitute a criminal offence, it submits that the Court should exercise its discretion not to do so in this case. 74    The Court is less reluctant to make a declaration involving questions of criminal law where the facts are clear and undisputed, there are no criminal proceedings pending, and there is a pure question of law to be decided: see e.g. Crane v Gething [2000] FCA 45, at [30]; Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868, at [58]. 75 In the present case, there are no criminal proceedings pending and there is a question of statutory construction. Mr Bennett says, however, that the facts are not clear and undisputed. In particular, he says, TBW’s evidence does not cover all the ways in which its activities may infringe s 33 RA Act . 76 No evidence has been put forward by Racing NSW as to any mode of communication of information by TBW which might fall within s 33, other than has been put forward by TBW itself. All of the evidence focussed on what was communicated internally between officers of TBW and its employees, and what was communicated to TBW’s clients in the course of taking bets. As I have earlier recounted, Racing NSW did not challenge the accuracy of the evidence given in that regard by Mr Tom Waterhouse. Indeed, its own recordings of bets placed with TBW confirmed that evidence. 77 I find that the facts upon which a declaration is sought are clear and undisputed. If the way in which TBW does business changes in the future, so that the factual basis upon which the declarations are sought is no longer present, the utility of any declaration now made will come to an end. However, the mere possibility that such a circumstance will occur sometime in the indefinite future is not sufficient to move the Court to withhold a declaration now. TBW must now decide whether or not to apply for an approval under s 33A RA Act . If it does, it must pay a substantial fee. If it does not, it risks immediate criminal prosecution, with severe consequences. In my view, in such a case, it is appropriate to exercise the Court’s discretion in favour of making a declaration. 78 Racing NSW says that the New South Wales Government should have been joined as a party to these proceedings because it would be affected by, or have an interest in, the outcome of the proceedings. 79 I do not agree. As I have already noted, Racing NSW does not represent the Crown. Its charter is to promote the welfare of the racing industry in this State. Whether its revenues are increased or diminished by the result of this case will not directly impact upon the revenues of the State. Criminal sanctions have been imposed upon breach of s 33 RA Act , not for the welfare of the general community, but rather to ensure collection of revenue for the benefit of the racing industry. Commendable as this object may be, Mr Bennett did not suggest how the State itself has any interest in these proceedings separate from that of Racing NSW so that it would be unjust not to afford the State the rights of a party in these proceedings.

Order

80 The Plaintiff is entitled to a declaration to the effect that the manner in which it presently conducts its business does not require it to seek a race field publication approval under s 33A Racing Administration Act . The Plaintiff is to bring in Short Minutes of Order, setting out a declaration or declarations in conformity with these reasons for judgment. I will hear the parties as to costs.
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