Waddell, Greg v Intralot Australia Pty Ltd

[2009] VCC 858

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-09-02126

GREG WADDELL	Plaintiff
v
INTRALOT AUSTRALIA PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2009
DATE OF JUDGMENT:	16 July 2009 (revised 20 July 2009)
CASE MAY BE CITED AS:	Waddell, Greg v Intralot Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0858

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Mode of trial – Lottery ticket – Primary issues
for determination in the action – Matter of interpretation for a judge –
Jury trial inappropriate

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Cogley	Katherine Moorhouse-Perks
For the Defendant	Mr D. Clough	Jennifer Fox, Legal Counsel, Intralot Australia Pty Ltd
HIS HONOUR:

1           In May 2009, Greg Waddell purchased an Instant Lottery ticket at a newsagency in Mill Park. The ticket contained a game called “Poker Night” and the winner of the game could win prizes of up to $200,000. Mr Waddell scratched the surface of the ticket and believed that his ticket was a winning ticket that entitled him to $200,000. He presented the ticket to the defendant and was told that he was not entitled to the prize because the defendant’s computer record did not record it as a winning ticket.

2           On the reverse of the ticket were what were described as “play instructions” and “conditions of sale”. There are three issues for determination in the case:

a.	whether upon an interpretation of the play instructions the plaintiff’s ticket was a winning ticket;
b.	whether the fact that the defendant’s computer recorded the ticket as a losing ticket was conclusive of that issue;
c.	issues relating to the validity of the defendant’s Instant Lottery game rules, which by the Gambling Regulation Act 2003 needed to comply with certain requirements.

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the customer’s ticket (”your cards”) and two cards as the dealer’s cards (“their
cards”). There were, in addition, five “community cards”. The rules provide that the
customer could combine the cards shown as “your cards” with cards from the The game shown on the ticket appeared to be a poker game. It showed two cards as followed with the dealer’s cards, then the customer should win the game.

4           There is an argument in the present case as to whether the play instructions require a player to use the two cards “dealt” as part of the final five cards; or whether it is simply a matter of comparing the best five of the seven available cards for each player.

5           Ultimately, this is a question of interpretation of the play instructions. If the play instructions mean that the player’s original two cards must be included in the final five cards, the plaintiff’s hand would succeed because he would have the two sevens, originally shown as “your cards” and two threes from the “community cards”. The best the dealer would have would be a pair of threes from the “community cards”. If, on the other hand, it were simply a matter of choosing the best five cards from the seven cards available to each player, then the best hand the plaintiff would have would be two sevens and two threes, but the best hand the dealer would have would be a straight – two, three, four, five, six, and this would be the winning hand.

9 heard by a jury or by judge alone. The plaintiff gave notice in his writ that he required

6           The Instant Lottery game rules provide in clause 6.8 that: “When any dispute arises,

the player shall be bound by the prize determination data recorded on Intralot Australia’s computer system files. No subsequent or manual alteration to an instant
ticket shall be made or if made have any validity for any purpose”. Clause 6.8 is part of clause 6, headed “Responsibility for Tickets”. Defendant’s counsel, Mr Clough, produced a printout from a computer system, not the defendant’s system as required by the rules but from a system both parties accepted for the purpose of the application showed the same information as on the defendant’s computer system.
7	purchased by the plaintiff. The card includes four games, not simply the game that is in dispute in this proceeding. In addition, the computer record includes what are described as “reconstruction details”. This includes the following information: “Prize value #0 – loser”. The defendant submits that this information is what is described in

The computer printout shows the pattern of the cards as shown on the card interpretation is that the “the prize determination data” includes the whole of the information disclosed on the computer record which includes the representation of each of the four games showing the particular cards designated as “your cards”, as “their cards” and as “community cards”. From this “data” a determination could be made as to the appropriate prize.

8 By section 5.2.4 of the Gambling Regulation Act 2003, there are certain requirements in relation to lottery rules. They must be published in the Government Gazette and in a newspaper circulating generally in Victoria. At the point of sale of the game, a

the notice must be in a form approved by the Commission. The present material
before the Court includes a copy of the publication of the relevant notice in the

notice must be displayed stating that the lottery rules are available for inspection and evidence available of the notice available at the point of sale.

The issue for determination in the present application is whether the case should be the case and the case should be determined by a judge alone. The application is to be determined by reference to the issues in dispute. Appropriate regard must be paid to the fact that the plaintiff has, at the time of the issue of his writ, expressed a desire for the action to be determined by a jury. There is, however, no preference which the law gives between trial by judge or trial by jury.

10         Of the three issues in dispute between the parties, which I have previously discussed, there is one issue of fact; whether an appropriate notice was displayed at the point of sale. At present, there is no direct evidence of that matter and, presumably, during the course of the interlocutory stages that issue would be clarified. The other issues are matters of law involving the interpretation of the contract between the parties, including the rules of the game and consideration of which aspect of the defendant’s computer record comprises the “the prize determination data”. These are pure questions of law that would need, in any event, to be decided by a judge and not left to a jury.

11         It was submitted by plaintiff’s counsel that the present application by the defendant is premature because the issues in dispute between the parties had not been sufficiently defined. In my view that is not so. Although a reply has not been filed by the plaintiff, from plaintiff’s counsel’s submissions it is plain that the only issue of fact that may arise is the question of whether some challenge can be made to the validity of the game rules on the basis that the statutory requirements have not been met and, in particular, whether an approved notice was displayed at the point of sale when the plaintiff purchased his ticket. In the circumstances, it is appropriate that the action be set down for trial before judge alone and not before a jury. The principal issues for decision are questions of law relating to the interpretation of the contract including the applicable lottery rules. These issues would be decided by a judge regardless of the mode of trial.

12         The parties have agreed on proposed orders in relation to interlocutory matters. It is likely that the trial will be of short compass, an estimate has been made of one sitting day and I will try to ensure that this matter is heard at the earliest date possible. It

may be that in further discussion with counsel, some of the interlocutory orders
sought can be amended to facilitate an early hearing.

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Certificate

I certify that the preceding 3 pages are a true copy of the reasons for decision of His

Honour Judge Anderson delivered on 16 July 2009 and revised on 20 July 2009.

Dated: 20 July 2009.

Julien Lowy

Associate to His Honour Judge Anderson