Totalisator Agency Board of Western Australia v Rosendorff
[2000] WASCA 227
•24 AUGUST 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: TOTALISATOR AGENCY BOARD OF WESTERN AUSTRALIA & ANOR -v- ROSENDORFF [2000] WASCA 227
CORAM: MURRAY J
MILLER J
HEARD: 25 JULY 2000
DELIVERED : 24 AUGUST 2000
FILE NO/S: FUL 41 of 2000
BETWEEN: TOTALISATOR AGENCY BOARD OF WESTERN AUSTRALIA
First Appellant (First Defendant)
TONY ELLIS
Second Appellant (Second Defendant)AND
CRAIG ROSENDORFF
Respondent (Plaintiff)
Catchwords:
Practice - Pleading - Particulars - Action for losses suffered in betting - Whether causes of action pleaded so as to require particulars of every bet - Whether appellants able to meet respondent's case as pleaded - Turns on own facts
Legislation:
Totalisator Agency Board Betting Act 1960, s 33
Totalisator Agency Board (Betting) Regulations, reg 10, reg 12
Result:
Leave to appeal refused
Representation:
Counsel:
First Appellant (First Defendant) : Mr C L Zelestis QC
& Ms M Reid
Second Appellant (Second Defendant) : Mr C L Zelestis QC
& Ms M Reid
Respondent (Plaintiff) : Mr C J L Pullin QC
& Mr N A Odorisio
Solicitors:
First Appellant (First Defendant) : Minter Ellison
Second Appellant (Second Defendant) : Minter Ellison
Respondent (Plaintiff) : Clayton Utz
Case(s) referred to in judgment(s):
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Dare v Pulham (1982) 148 CLR 658
Nauru Phosphate Royalties Trust v Matthew Hall (1994) BCL 179
The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Case(s) also cited:
Australian Electrical Electronics Foundry & Engineering Union WA Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Wilson v Metaxas [1989] WAR 285
STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd, unreported; SCt of WA; Library No 980690; 17 September 1998
MURRAY J: In this matter I have had the advantage of reading in draft the reasons for decision to be published by Miller J. I respectfully agree with them and with his Honour's proposal that the application for leave to appeal should be refused.
In my view also, the decision of the Acting Master was correct. The respondent's case as pleaded was that the first appellant, through four nominated agencies, made betting agreements by which it accepted a series of bets placed by the respondent on the outcome of horse and greyhound races. I understand that to be a plea that there were four such agreements made with the first appellant, one made through the medium of each agent.
Each of those agreements was pleaded to involve a process by which a great number of bets were placed by the respondent and accepted by the appellants in contravention of the provisions of the Totalisator Agency Board Betting Act 1960 (WA), s 33 and the Totalisator Agency Board (Betting) Regulations 1988, Reg 10 and Reg 12. They are said to have been credit bets of a kind not permitted by the Act. The conduct of the appellants in that regard is pleaded to be unlawful and it is pleaded that by reason of that conduct, each of the betting agreements is null and void and there has been a total failure of consideration, with the result that the first appellant has been unjustly enriched at the respondent's expense. In the result, the substantive claim is to recover what, over a period of time, was paid net by the respondent in respect of the total losses he sustained after allowing credit for the winnings he made.
As Miller J has explained, in its essence this is a plea to recover monies had and received by way of unjust enrichment on the alleged failure of each of the four betting agreements because the performance of each involved the first appellant in accepting what are alleged to be a series of unlawful credit bets within the meaning of the relevant legislation.
How that claim may be proved by the respondent is a matter of evidence, but in my opinion the Acting Master was right to hold that the proper particularisation of that claim and the various alternative causes of action stipulated does not require the full particularisation of the many thousands of individual bets placed, a requirement which would entirely stultify the respondent's capacity to pursue his claim by reason of his inability to comply with such an order. Such an order is not required to fairly enable the appellants to properly prepare to meet the claim, or to define the issues.
MILLER J: The respondent has sued the first and second appellant, claiming the sum of $4,012,624.13 and/or damages and other relief in consequence of what he contends to have been illegal betting transactions made in contravention of the provisions of s 33 of the Totalisator Agency Board Betting Act 1960 and reg 10 and reg 12 of the Totalisator Agency Board (Betting) Regulations 1988. The Act and regulations prescribe the terms upon which the first defendant, its officers, agents and employees are authorised to accept bets:
"33.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; …"
It is the respondent's case that between June 1995 and April 1998 the first appellant, at various nominated agencies in Perth and in Nedlands, accepted a series of bets placed by the respondent on the outcome of certain horse and greyhound races (described in the statement of claim as "betting agreements") and that it was a term of each of the betting agreements that the respondent was not required to pay the agents of the first appellant the amount of the bet until after the outcome of the races. Each of the betting agreements is contended to have been unsuccessful, with the result that oral demands for payment were made by employees of the first appellant's agents, either at the end of each day's betting or during the week following each day's betting. In response to those demands the respondent allegedly paid the amount of the bets to the first appellant's agents totalling the sum of $4,012,624.13. Because it is alleged that the bets placed by the respondent were in contravention of the provisions of the Act and regulations, each of the betting agreements is alleged to have been null and void, with a total failure of consideration by the first appellant in relation to each of those betting agreements. The causes of action which are pleaded include:
(a)the betting agreements being void as made in contravention of the provisions of the Act and regulations
(b)total failure of consideration;
(c)mistake/unjust enrichment;
(d)breach of statutory duty;
(e)misleading and deceptive conduct;
(f)unconscionable conduct.
The appellants have sought particulars of each bet and each betting agreement which the respondent claims respectively to have placed and made with the first appellant through its agents between the period in question. It seeks to know the winnings and losses which resulted from each such bet and/or betting agreement. Those requests were contained within a request for further and better particulars of amended statement of claim dated 13 October 1999 and were requests 1(c)-(h), 2(d) and (e) and 3(c). In response to the request the respondent stated that the bets he had laid related to horse and greyhound races on various dates throughout the relevant period at metropolitan and country tracks in all Australian states and territories, together with bets on race meetings in Hong Kong and at other overseas venues. He said he was unable to provide further particulars until such time as the appellants discovered all documents relating to bets placed by him during the relevant period. Apart from nominating the agencies at which the bets were placed, the types of bets made (which seem to have included every conceivable method of betting) and that the bets placed were of "various different values", the respondent was unable to give any better particulars of the requests made.
Request 2(d) and (e) called upon the respondent to state whether he kept winning tickets and/or collected winnings by cash or cheque or both and required him to detail the number of bets placed with the winnings from the last mentioned bets, and the winnings and losses relating to those bets. In response to this request the respondent stated that all winning tickets were presented to agents for processing, although occasionally the respondent retained winning tickets for a period of one or two days before presenting them for payment. He contended that any winnings paid to him were paid by cash and/or cheque, but was otherwise unable to provide particulars as requested until such time as the appellants had discovered all documents relating to bets placed during the relevant period. Request 3(c) called upon the respondent to state "the bets to which the unsuccessful betting agreements related" and in response to it the respondent again stated that he was unable to provide those particulars until such time as the appellants had discovered all documents relating to bets placed by him during the relevant period.
On 29 February 2000, Acting Master Chapman considered the request of the appellants for an order for the further and better particulars to which I have referred. The Acting Master also considered a request by the respondent for further and better particulars of amended defence. Requests 1, 2 and 2(h) in that regard sought full particulars of bets placed by the respondent at the various premises within the relevant period, including details of the agents of the appellants to races to which the bets related, the types of bets, amounts of bets and if the bets were successful, the values of the winning tickets.
Before the Acting Master, counsel for the respondent stated that there had now been a change of position in relation to each request which had been answered in terms of inability to provide particulars until such time as the appellants had discovered all documents relating to bets. In regard to each of those requests the respondent now argued that the particulars sought were not relevant and therefore no answer was required.
In dealing with the merits of the application the Acting Master said:
"… I accept the submission of counsel for the plaintiff that the question of relevance must relate back to the pleadings. The plaintiff in his amended statement of claim pleads his case very specifically. In essence, the statement of claim pleads that the bets placed by the plaintiff were in contravention of the provisions of the Totalisator Agency Board Betting Act 1960 and Regulations in that they were made without the deposit of cash at the Totalisator Agency. It is therefore alleged that the plaintiff was not obliged to pay the amount pleaded in the amended statement of claim, details of each payment having been given in the first schedule to the amended statement of claim. It is therefore argued that detail of each individual bet is not relevant.
Counsel for the defendants submitted that one of the functions of pleadings is to confine the issues which may ultimately be raised at trial. With this I would agree. The very specific way the plaintiff has chosen to plead his case will confine him at trial and, in my view, confines the further and better particulars he is required to supply."
In relation to each of the specific requests of the appellants, the Acting Master concluded that given the way the respondent had pleaded his case, details of individual bets were irrelevant and particulars provided were therefore adequate.
In relation to the respondent's request for further and better particulars of amended defence, the Acting Master said:
"As to the further and better particulars of par 7 of the amended defence and the requests contained in the plaintiff's supplementary request filed on 23 September 1999, counsel for the defendants made the observation that the plaintiff argues that he is under no obligation to provide the detailed particulars which have been requested of him, but at the same time his request for further and better particulars seeks almost identical particulars in relation to payments alleged to have been made by the defendants to the plaintiff.
Put at its simplest that may be true, but that does not necessarily relieve the defendants of their obligation to supply appropriate particulars. Whether or not more is required depends upon the pleadings."
The Acting Master then observed that the appellants had agreed to provide answers to requests 1, 2, 3, 6(c) and (d), and ordered only that the other requests be answered. In relation to the respondent's supplementary request the Acting Master ordered only that request 2(h) should be answered.
At the hearing of the appeal before this Court the appellants argued that the original requests 1 and 2 and supplementary request 2(h) should only be answered if the respondent answered the particulars sought of him.
However, the appellants cannot now re‑argue the obligation to answer original requests 1 and 2, and in my view the Acting Master was correct to order an answer to supplementary request 2(h).
Central to the determination of the appeal is the basis upon which the respondent has pleaded his case. In this respect the Acting Master correctly categorised the nature of the respondent's claim. It is a claim for restitution and/or other relief in relation to moneys paid by the respondent at the end of race meetings or in the week following a race meeting in circumstances where the payment made was the balance due after taking into account all credit bets and all amounts won by the respondent. The respondent has mounted a case which is based upon recoupment of the amount of credit bets less any moneys which he had won on the day or in the week in question. The case is not mounted on the basis of recoupment of the amount of each credit bet. The claim is that agents of the first appellant kept written records of all debit and credit amounts and called for payment of the balance outstanding at the end of a day or week. This contention is made in an affidavit of the respondent sworn 17 December 1999 and exhibited in the proceedings. In an affidavit of Marian Vuleta, sworn 20 January 2000 and filed in support of the application of the appellants for further and better particulars, there is confirmation that running sheets and/or betting tickets, batch total tickets and batch total winning tickets relating to bets placed by the respondent at the various agencies were kept but generally destroyed within four to eight weeks of the betting day. The respondent, in his affidavit sworn 17 December 1999 deposed to the fact that he is unable to recall individual bets placed by him as he maintained no record of those bets. At best he has a computer disk provided by the first appellant which records all betting transactions entered into by its agents through part of the period June 1995‑April 1998, but the records are not limited to bets placed by the respondent himself and include in excess of 550,000 individual transactions without disclosing the names of the horses to which bets related.
The principles upon which particulars will be ordered are well established. The purpose of particulars and the extent to which particulars are required are set out in Dare v Pulham (1982) 148 CLR 658 at 664:
"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq): they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v Cameron): …"
A further statement of principle is that of Jacobs J in Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 221:
"… rules or practices as to particulars must be sufficiently flexible to allow all parties to an action or matter to meet with necessary evidence and without delay to court processes questions which may be raised at the hearing. Their purpose is to concentrate and define the issues of fact and to prevent surprise and consequent delay.
At the same time it must be borne in mind that particulars do not constitute a pleading and do not ordinarily define issues of law. They must tend to advance the clear and speedy determination of all the questions which fall to determined. They are not a net in which the ready and comprehensive determination of the ultimate issue can become enmeshed and delayed."
What the appellants contend is that each of the respondent's causes of action is pleaded in relation to each and every of the individual betting agreements and bets pleaded in par 5 and par 6 of the statement of claim. That is, the appellants say that the respondent's pleaded case involves six separate causes of action in relation to each individual betting transaction. It is argued that this essential feature of the respondent's pleaded case is unaltered by the fact that at various points in the statement of claim there are pleas as to payments made and loss suffered which are expressed "in a rolled up way improperly failing to relate the alleged payments or loss and damage to the respective individual betting agreements". It is contended that contrary to the decision of the Acting Master, the fact that the respondent has pleaded the amounts paid and alleged losses in a "rolled up way" without endeavouring to plead precisely how they relate to the pleaded bets and betting agreements is not a reason for refusing particulars, but to the contrary, is a reason for ordering particulars. Put simply, the argument of the appellants is that the elements of the pleaded causes of action of the respondent necessarily involve a connection between the individual bets and betting agreements and the payments and alleged losses and particulars of each are required to expose the case of the respondent in that regard.
Counsel for the appellants concedes that it is an essential feature of the respondent's causes of action that he asserts that he paid for bets only after the bets had been placed and results were known. It is said, however, that without proper particulars of the alleged betting agreements, resultant winnings and losses and how the winnings were applied, it is impossible to assess and prepare to meet the respondent's case and to ascertain the extent, if any, to which aspects of that issue are in dispute. It is further complained that unless the particulars sought are ordered, all of these matters will necessarily have to be investigated at trial by lengthy cross‑examination directed to identifying the relevant bets and betting agreements and relating them to payments and alleged losses. This, it is contended, will unfairly prejudice the appellants by denying them a proper opportunity to address those issues with the benefit of particulars in advance of trial.
Counsel for the respondent contends that the appellants well know the basis of the respondent's case and have all existing written records relating to transactions between the parties. It is said that the first appellant has not produced and has not destroyed critical records and well understands that the respondent has given credit for all winnings and sued only for losses. The argument is that the pleadings and particulars sufficiently concentrate and define the issues, cause no surprise to the appellants, and do not deny the appellants a fair opportunity to meet the respondent's case. Counsel for the respondent argues that had the respondent sued to recover the amount of each credit bet without giving credit for winnings, the request for particulars of each bet would be justified. However, it is contended that this is not what the respondent is seeking to recover. What he is seeking to recover is the amount paid to the first appellant or its agents by cheque, cash or direct credit by way of net betting losses. This being so, it is argued that particulars are unnecessary to allow the appellants a fair opportunity to meet the case which is made against them. Reliance was placed by counsel for the respondent on Nauru Phosphate Royalties Trust v Matthew Hall (1994) BCL 179. The case involved an arbitration with points of claim in which the contractor pressed a global disruption claim in which no attempt was made to relate the quantum of damages claimed to any identifiable disrupting event in the course of a building contract. Such particulars as were provided in various schedules to the points of claim made broad allegations about breaches which were alleged, giving some examples of disrupting events but not an exhaustive list. Smith J (at 195 ‑ 196) made these observations about the way in which the claim had been formulated:
"I accept that the way in which Matthew Hall wishes to proceed places burdens of the kind described by Nauru. They flow from the choice that Matthew Hall has made about the way it proposes to present its case. Matthew Hall, however, has the right, like any litigant in an adversary system, to choose the way that it will present its case. (N Brookes, 'The Judge and the Adversary System', in AM Linden (ed), The Canadian Judiciary (Osgoode Hall Law School, Toronto, 1976), pp 89‑93, as to the adversary nature of arbitration: see Bremer Vulkan [1981] AC 909 at 976‑977). It is subject to the obligation to define its case in a manner that discloses a cause of action and to give sufficient particulars to enable the defendant to understand the case it has to meet and thus to satisfy the principles of natural justice.
Subject to those qualifications, however, it is not obliged to give particulars of 'nexus' when it is not part of its case to establish a 'nexus' between each alleged disrupting event, particular disruptions and loss. Nauru may then be left with burdens such as the shifting of the tactical or evidentiary onus of proof and lengthy preparation but such burdens do not constitute an abuse of process (Ricketson v Cook (1899) 15 WN (NSW) 227; Meckiff v Simpson [1968] VR 62)."
Although there is an obvious distinction between pleading by way of points of claim in an arbitration and the pleadings which are here in issue, the general principles enunciated in the passage I have quoted remain true to this case. The respondent has elected to formulate a case for recoupment of moneys by way of losses incurred at the end of each betting day or week, which losses take into account credits for winning bets. Whether at trial the respondent will be able to establish that betting was conducted in the manner in which it is alleged is a matter for evidence. Whether the respondent will be able to satisfy the trial Judge that the calculations made in fixing upon the payment required by the first appellant and/or its agents at the end of any betting day or week was accurate is also a matter for evidence. The central issue in the case is the legality of the betting arrangements allegedly conducted between the respondent and the first appellant and/or its agent. The question which arises is whether, by reason of the provisions of the Act, such betting arrangements were illegal.
The defence of the appellants contends that the sum of moneys paid by the respondent to the appellants was not that pleaded but was a lesser sum ($2,737,332.18) and it is pleaded that by reason of the respondent's totalisator betting between June 1995 and April 1998, he obtained winnings paid by the first appellant in a total sum in excess of that pleaded in par 8 of the respondent's statement of claim. Various other pleas are contained within the defence, including the plea that if any agent of the first defendant purported to accept a bet contrary to the provisions of the Act and regulations, it was not a bet accepted by the first appellant for the purposes of s 33 of the Act or reg 10 and reg 12 of the regulations; in the alternative such bets as were placed by the respondent were accepted by the first appellant and/or its agents in circumstances in which the respondent received full value and consideration for each bet placed in that he obtained a chance to win; and that in relation to certain nominated days there was, in effect, lawful credit betting.
In my view, the Acting Master properly categorised the nature of the respondent's claim. The various causes of action pleaded by the respondent do not assert anything in relation to individual bets placed. However one construes the words "betting agreements" pleaded in par 5, par 7 and elsewhere in the statement of claim, it is not the case of the respondent that any claim is made in relation to individual bets. To the contrary, the claim is that at the end of a day or week's betting there was a "settling" between the respondent and the first appellant or its agents and that it was this settling and the circumstances of the betting which preceded it which was contrary to the provisions of the Act and regulations. So pleaded, it seems to me that the particulars requested are unnecessary to enable the proper disposition of the action and, in my view, the Acting Master was correct in the decision he reached.
Further and in any event, I am not satisfied that the appellants have met the test for leave to appeal from the orders made by the Acting Master. In The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, Malcolm CJ (at 54) restated the principles upon which the Court will act in determining whether to grant leave to appeal from an interlocutory order:
"The principles upon which the court acts in determining whether to grant leave to appeal from an interlocutory order are well established. In Wilson v Metaxas [1989] WAR 285 at 294, with the agreement of Brinsden and Smith JJ, I said:
'The object of the requirement that an appeal lies from an interlocutory order only by leave is to reduce appeals from these orders as much as possible: Perry v Smith (1901) 27 VLR 66; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 at 408. The jurisdiction to hear the appeal is founded upon the grant of leave. The grant of leave lies in the discretion of the court. In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed: Perry v Smith; Niemann v Electronic Industries Ltd [1978] VR 431; Stanley-Hill v Kook [1982] 1 NSWLR 460; Monash University v Berg [1984] VR 383; BHP Petroleum Pty Ltd v Oil Basin Ltd [1985] VR 756. The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is substantial injustice must depend on all the circumstances of the case: BHP Petroleum Pty Ltd v Oil Basin Ltd (at 759), per Fullagar J.' "
After reviewing a number of other decisions on the subject, the Chief Justice added (at 56 ‑ 57):
"The need to discourage unnecessary interlocutory appeals is such that I do not consider that, except where some point of special importance is involved, the fact that an order works an apparent injustice should warrant a grant of leave to appeal unless it appears that the decision below was clearly wrong or attended by sufficient doubt to warrant the intervention of the appellate court. That being said, what I myself said in Wilson v Metaxas was only intended to state that, 'In general' it must be shown that the decision was wrong or attended with sufficient doubt to justify the grant of leave and that, in addition, substantial injustice would be done by leaving the decision unreversed. The latter requirement was described only as a 'guideline'. Consequently, I made no attempt to lay down any rigid or exhaustive criteria for the grant or refusal of leave. I note that in Australian Dairy Corporation v Murray Goulburn Co‑operative Co Ltd [1990] VR 355 at 364‑365, per McGarvie J and (at 380), per Marks J (with whom Fullagar J agreed) adhered to the approach in Niemann.
I propose to approach the question of leave to appeal in this case on the basis that the discretion to grant or withhold leave is a broad one which, in general, will be exercised, having regard to the considerations referred to in Wilson v Metaxas, but not applying them as if they were rigid or exhaustive criteria so that if for any other reason in the interest of justice, leave should be granted I should be prepared to grant it."
In the present case I do not consider there is any point of special importance involved; I do not consider that any apparent injustice will result from a refusal to order the particulars sought by the appellants; and I do not consider that the decision of the Acting Master could be said to have been clearly wrong or attended by sufficient doubt to warrant the intervention of this Court.
I therefore refuse the application for leave to appeal.
0
3
2