Le Blanc v Qld TAB Ltd [2002] QSC 323

[1] The defendant Queensland TAB Limited applies for summary dismissal of the plaintiff's claim pursuant to r 292 of the Uniform Civil Procedure Rules on the grounds that the claim and statement of claim do not disclose a justiciable cause of action. The defendant's contention is that s 248 of the Racing and Betting Act 1980 expressly excludes claims of the nature of that brought by the respondent.

[2] The allegations in the statement of claim, may be summarised as follows:

(a) The defendant carries on the business of authorised wagering by means of a "totalisator";

(b) The plaintiff had a credit betting account with the defendant;

(c) On 16 October 2000 the plaintiff placed a number of bets with the defendant as a result of which contracts were made between them;

(i) the rights and obligations of the parties in relation to the bets would be in accordance with the Wagering Rules 1999 made under the Wagering Act 1998; and

(ii) the applicant agreed to pay a minimum dividend of $1 for any dollar bet.

(e) As a result of the outcome of the races in respect of which the bets were placed, the defendant became liable to pay to the plaintiff certain moneys and has failed and refused to do so.

[3] The claim, in the prayer for relief, is expressed as -

(a) A claim for the sum of $464,800 together with interest;

(b) Alternatively, $170,000 as money due and owing to the plaintiff, together with the sum of $294,800 as damages for breach of contract together with interest; and

(c) Alternatively, $464,800 as damages for breach of contract together with interest.

[4] The plaintiff relies on s 248(1) of the Racing and Betting Act which provides -

(a) a contract or agreement whether by parol or in writing with respect to gaming or wagering is void;

(ii) to pay to a person by way of commission, fee, reward or otherwise a sum of money;

(iii) to pay to a person for services rendered a sum of money;

in accordance with the terms of a contract or agreement or in relation thereto or in connection therewith is void;

(c) an action shall not be brought in a court to recover a sum of money or other property-

(ii) deposited in the hands of a person to abide the event on which a bet has been made; or

(iii) lent or advanced for the purpose of gaming or wagering."

[5] The definition of "wagering" in s 5 of the Racing and Betting Act expressly includes "betting conducted by means of a totalisator". There is also a comprehensive definition in s 5 of "bet" and it is common ground that the moneys claimed by the plaintiff are "alleged to be won ... on a bet" placed in "betting conducted by means of a totalisator".

[6] On the face of things then, although it may occasion a great deal of surprise to the average "punter", the defendant is correct in contending that when a person places a bet or wager with it, no enforceable agreement arises and no action lies to recover any "winnings".

[7] The plaintiff seeks to avoid the consequences of a literal construction of s 248 by arguing that the Wagering Act 1998, to the extent of its operation, repeals the section. The argument is developed as follows. The Wagering Act regulates activities of wagering, with the exception of bookmaking under a racing bookmaker's licence. It prescribes an extensive regime for the licensing and regulation of betting activities and makes lawful such activities where they are carried out under a relevant licence or permit.[1] Section 12(1) of the Wagering Act provides that this is so, despite any other law dealing with wagering, including in particular, the Racing and Betting Act.

[8] More specifically, the Wagering Act makes lawful and regulates the conduct of a "totalisator" which is described and defined in s 8 of that Act as follows:

(a) to enable persons to invest money on events or contingencies with a view to successfully predicting specified outcomes of the events or contingencies; and

(b) to enable the totalisator pool to be divided and distributed among the persons who successfully predict the outcomes.

(2) A `totalisator' also includes an instrument, machine or device under which the system mentioned in subsection (1) is operated.

(3) In subsection (1)(b), a reference to the totalisator pool is a reference to the amount left for the investments after -

(a) making allowances for refunds of investment; and

(b) deducting any amount payable by way of commission for the conduct of the totalisator."

[9] It was submitted that it was improbable that the Legislature would have intended erecting such a comprehensive legislative framework for totalisator betting whilst simultaneously prohibiting actions to enforce obligations arising out of transactions which that framework contemplated. For example, if s 248 applies, it would prevent the operator bringing an action to recover moneys from a customer and from enforcing any contract "with respect to" gaming or waging or from obtaining the benefit of a promise in relation to or in connection with gaming or waging.[2] An operator would not be able to sue on a customer's cheque.

[10] Furthermore, it was pointed out that licensed race bookmakers, whose activities are governed by the Racing and Betting Act, are given the right to make valid contracts of betting by s 249 of that Act. Why, it is asked rhetorically, would the Legislation distinguish between race bookmakers, on the one hand and other operators, including the defendant, on the other?

[11] Considerable reliance was placed by the plaintiff on the approach to construction revealed in the following passage from the judgment of Mahoney JA in Petranker v Brown[3]-

"In this context, counsel for the respondents have submitted that under the Lotto Act (and, a fortiori, under the rules which have been approved for the conduct of the statutory game) a subscriber, and in particular a winning subscriber, acquires no rights whatsoever; that what he does in playing the statutory game is, at best, null and void and, at worst, unlawful under the Gaming and Betting Act; and that this is not produced by legislative inexactitude but is the result which the legislature intended to bring about.

I would hesitate to attribute to the legislature such an intention: at least, I would hesitate to attribute the intention to produce such a result by an Act in the form which the Lotto Act takes. It is the function of the courts to ascertain and give effect to the intention of the legislature as expressed in its enactments. And, as is well settled, the courts will not be led to find the legislative intention to be other than the enactment indicates by the fact that they regard that which the legislature intends as undesirable or objectionable. But conversely the courts should not, in my opinion, find that the legislature, and the legislators, had the intention to do something for which they will be publicly accountable as undesirable or objectionable unless that intention appears clearly from the enactment. For the legislature, and the legislators, will be held publicly accountable for the enactment and it is wrong to attribute to them, by a process of construction, an intention which they would prefer not to be seen to have had. The thrust of the plaintiff's submission in this regard, and of the learned judge's comments, was, I think, that had the Lotto Act contained a provision stating, in terms, that a prize winner should have no enforceable rights to the prize, the legislation would not have been passed.

In determining what appears from the enactment as the intention of the legislature, it is, I think, sometimes proper to ask whether, had the suggested intention been spelled out in terms in the legislation, the legislators would have voted for it. And, the purpose of the legislative procedures being to make clear, to the legislators and the public, what it is that is being enacted, surprising results should not be seen to have been intended unless there be no alternative to them.

In the present case, the results for which the respondents contend would, I think, be surprising, both to the legislators and to the subscribers to the statutory game."

[12] The Wagering Act, most notably by the obligations expressly imposed upon the operator, is plainly inconsistent with the operation of s 248 in relation to the conduct which is made lawful and comprehensively regulated by the Wagering Act. The Wagering Act, being a later statutory provision, to the extent of its operation, repeals s 248.

[13] A difficulty with the argument based on the sequence of enactments is that the Wagering Act 1998 was passed as Act No 15 of 1998. It was assented to on 26 March 1998 and its provisions, with the exceptions ss 1 and 2 commenced on 1 July 1999. Section 248 of the Racing and Betting Act did not apply to totalisator betting until the coming into force of the Racing Legislation Amendment Act 1998 (Act No 18 of 1998) also assented to on 26 March 1998. Part 2 of that Act which came into force on 16 June 1999, inter alia, amended s 5 of the Racing and Betting Act by inserting the following definition "`Wagering', see the Wagering Act 1998, Schedule 2". In Schedule 2 of the Wagering Act 1998, "wagering" is defined as meaning -

"(a) betting conducted by means of a totalisator; or

[14] The plaintiff's response to this difficulty was to argue that the Wagering Act and the Racing Legislation Amendment Act 1998 should be viewed as concurrent legislation in which the Wagering Act made separate and exclusive provision for totalisator betting.

[15] The defendant's argument in response was that there is no reason why full effect should not be given to the plain words of s 248. The section must be seen against a long statutory tradition of rendering racing and betting transactions unenforceable. The course the Legislature has followed, it is said, is to provide an "extensive administrative machinery" under the Wagering Act so as to ensure that the businesses of licensees are conducted honestly. Persons placing bets have the benefit of this administrative structure and also of the dispute resolution procedures in s 214.

[16] Although the Chief Executive does not have power under it to make orders binding on the defendant or other licensees, the powers of the Chief Executive under s 43 make defiance of a decision by the Chief Executive unlikely.

[17] The Wagering Act cannot be viewed as enacting a discrete code for totalisator betting. Rather it is part of a package of legislature provisions, each cross-referenced to the other.

[18] The making of wagering transactions, hitherto enforceable, unenforceable was not remarkable in any way. Until the enactment of the Wagering Act the TAB was an emanation of the Crown. It is now a statutory corporation with the prospect of privatisation and is exposed to the risk of having its licence suspended or cancelled.

[19] It is plain that there is an interconnection between the Racing and Betting Act and the Wagering Act. The prelude to the former describes it as -

"An Act to consolidate and amend the law relating to the regulation of racing, trotting and greyhound racing, betting by and with bookmakers and the suppression of unlawful betting and to provide for matters incidental thereto or consequential thereon and for other purposes"

[20] The Racing and Betting Act makes provision for separate authorities to supervise horse racing, harness racing and greyhound racing and regulates the manner in which such racing activities are to be conducted. Part 4 of the Act regulates the activities of on course bookmakers whilst Part 6 contains extensive provisions for the prohibition and punishment of those betting activities not authorised by legislation.

[21] Section 213(1) expressly exempts from the operation of part 6 "wagering lawfully conducted under the Wagering Act 1998" and "betting by and with a bookmaker in the course of the lawful activities of a bookmaker".

[22] Part 6 of the Racing and Betting Act deals with unlawful betting. Section 213, which is in that part, relevantly provides:

"213.(1) Nothing in this part shall apply with respect to -

(a) wagering lawfully conducted under the Wagering Act 1998; or ...

(c) betting by and with a bookmaker in the course of the lawful carrying on by the bookmaker of bookmaking ...

(2) except as provided in subsection (3), nothing in this part shall prejudice or affect in any way -

(ea) the Wagering Act 1998 ...".

[23] Sub-paragraphs (a) and (ea) were inserted by Act 18 of 1998.

[24] Section 248 is in Part 7 which is headed "miscellaneous". Subsection(1) commences with "subject to subsection (2) and section 249". There is nothing in subsection (2) of relevance for present purposes but it is of some significance in that it excludes from the scope of subsection (1) certain prescribed activities, not including those within the definition of "wagering".

"Circumstances in which bookmaker may sue or be sued

A person who, on any racing venue or athletic ground, while lawfully engaging in bookmaking, makes a bet with another person shall be deemed to have entered into a valid contract with that other person and the person may sue or be sued on a contract so entered."

[26] The expressed object of the Wagering Act is to ensure that "on balance" the State and the community as a whole benefit from wagering. Provision is made for the granting of a series of licences described respectively as an "oncourse wagering permit", a "race wagering licence" and a "sports wagering licence". Extensive provisions are made for the granting of such licences, the control of licensees and of nominated employees and functionaries.

[27] Section 213 requires a claim for payment of a winning bet to be made within 12 months of the relevant event and that the claim be accompanied by the ticket unless made within a prescribed period. The amount of a winning bet not claimed within the 12 month period may be retained by the authority operator.[4]

[28] Section 214(1) provides -

"If a claim for payment of a winning bet is made to a general operator, the operator must -

(b) if the operator disputes the claim--immediately try to resolve the claim."

[29] Where an authority operator disputes the claim and it is not able to be resolved, the authority operator is required to inform the claimant of that fact. The claimant may then, where it is in receipt of a claim result notice provided by the authority operator, request the Chief Executive to review the decision or, where such notice has been received, request the Chief Executive to resolve the claim. The Chief Executive is not given any express power to make a determination which alters or declares legal rights and obligations in any binding way.

[30] The expression "authority operator" includes reference to "licence operators" and "permit holders".

Matters relevant to the construction of s 248 of the Racing and Betting Act

[31] It may thus be seen that, when amending s 213(1) of the Racing and Betting Act, the Legislature was alert to the need to exclude activities permitted by the Wagering Act from the operation of Part 6. That tends to suggest that the failure to make a like exclusion from the operation of s 248 in part 7 cannot be attributed to inadvertence. Such a conclusion gains additional support from the fact that there would have been little point in inserting in the Racing and Betting Act the definition of "wagering" with a view only to excluding from the operation of part 6 of the Racing and Betting Act wagering activities authorised by the Wagering Act. Such activities were not "wagering" for the purposes of the general law in any event.

[32] Prior to the enactment of the Wagering Act it had long been established that totalisator betting does not constitute "wagering" as a totalisator operator can neither win nor lose. In the language of Lord Denning MR, in Tote Investors Ltd v Smoker[5] -

"... it seems clear that the Totalisator Board can neither win or lose. All they take out of the fund is their expenses. They are merely organisers who receive all the moneys in their hands and then pay out the total to those who have succeeded, less expenses. As they neither win nor lose, it follows that it is not a contract of `wagering'. Nor is it a contract by way of `gaming'."

[33] Weighed against these considerations is the seeming absurdity of making agreements relating to totalisator betting void and preventing the recovery of moneys relating to such betting activities whilst, as part of a connected legislative process, enacting the Wagering Act. That Act makes elaborate provision for totalisator betting, regulates it closely and contemplates the making of Wagering Rules to bring about even closer regulation. The Wagering Act also provides for claims for payment of winning bets[6] and authorises the retention of moneys pertaining to unclaimed bets in prescribed circumstances[7].

[34] Section 213 of the Wagering Act is expressed, by subsection (3), to have effect despite the Public Trustee Act 1978, part 8. Part 8 of that Act applies to moneys in the possession of an "accountable person" which have become payable by that person. S 213(3) thus implicitly acknowledges that unclaimed winning bets are legally payable by the authority to the person placing the bet.

[35] A similar point arose in Petranker v Brown and was considered by two of the three members of the Court to be relevant. The question for determination in that case was whether the game of lotto played according to the Lotto Act 1971 and the rules made thereunder was an unlawful game prohibited by s 17 of the Gaming and Betting Act 1912 or involved a gaming or wagering transaction rendered void by s 17. It was held that participation in lotto did not involve gaming or wagering.

[36] Samuel JA, after conducting a review of the detailed scheme set up by the Lotto Act for the organisation of the game of lotto, concluded that it was improbable in the circumstances that the Legislature would have intended lotto to be an unlawful game and that licensees were to have the discretion as to whether or not to pay prizes apparently won.

[37] Priestley JA's approach was similar. After describing the Legislative scheme and system of regulation established by the Lotto Act he observed -

"As I have indicated I think the "unlawful game" submission in the case can be dealt with on a broad and simple basis. That is that in choosing between a reading of the Lotto Act which treats lotto as a lawful game and one which treats it as unlawful there is only one choice - the reading which treats the game as lawful. The submissions for the respondents involve the proposition that the features which I have listed were intended by a rational legislature to be appurtenant to an unlawful game. In my opinion the only intention the legislature can have had was to treat the game of lotto, conducted under the Act, as a lawful game."

[38] I have already quoted from the reasons of Mahoney J.A. the other member the Court.

[39] There is no direct inconsistency between s 248 and the provisions of the Wagering Act. The latter does not expressly declare wagering agreements enforceable or winning bets recoverable by action. Inconsistency or repugnancy though may arise indirectly, as Dawson J remarked in Downey v Trans Waste Pty Limited[8].

"In my view, the specific provision in s. 44(4) for the reference of an industrial dispute excludes, in relation to an industrial dispute, the more general provision contained in s. 37(8) for the referral of an industrial matter. While an industrial matter includes an industrial dispute, the more specific provisions relating to the referral of an industrial dispute, which are contained in s.44, must, as a matter of statutory construction, prevail. Where there is a repugnancy between the general provisions of a statute and provisions dealing with a particular subject matter, as a matter of general construction the latter must prevail. As Deane J. pointed out in Refrigerated Express Lines (A/asia) Pty. Ltd. V Australian Meat and Livestock Corporation [No. 2] [1980] FCA 38; (1980) 44 F.L.R. 455, at p. 469; [1980] FCA 38; 29 A.L.R. 333, at p. 347:

`Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.'

[40] The following observations in the majority judgment in Project Blue Inc v Australian Broadcasting Authority[9] make the point that statutory interpretation is not merely a linguistic or semantic exercise and that the context of the words used and the purpose of the statutory provisions must be borne in mind[10] -

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. See Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 213, per Barwick CJ. The meaning of the provision must be determined `by reference to the language of the instrument viewed as a whole'. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumbles's [1985] AC 609 at 617, per Lord Scarman, `in the context of the legislation read as a whole'. In Commissioner for Railways (NSW) v Agalianos, [1955] HCA 27; (1955) 92 CLR 390 at 397. Dixon CJ pointed out that `the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning that the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41; (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J."

[41] More recently, Lord Steyn observed -[11]

"Interpretation is not a science. It is an art. It is an exercise involving the making of choices between feasible interpretations. Structural arguments must be considered. Competing consequentialist arguments must be taken into account. Broader policy considerations may be relevant. Educated intuition may play a larger role than an examination of niceties of textual analysis. The judge's general philosophy may play a role. Ultimately, however, a judge must be guided by external standards in making his choice of the best contextual interpretation. He must put aside his subjective views and consider the matter from the point of view of the reasonable person.

It will be rare for a statute to have one obvious meaning which can be determined without taking into account the context of the legislation. One might say that a statutory provision that a notice must be lodged within 30 days requires no resort to contextual material. But even this proposition is not necessarily correct. The context may throw light on the relative plausibility of interpretations holding that days include every day of the week or only week days. While the text of the statute is of pre-eminent importance, it cannot be understood in a vacuum: legislative language can only be understood against the backcloth of the world to which it relates. Sometimes judgments do not fully take into account the different levels of reasoning at which the context is relevant. As in the case of commercial contracts, and other legal texts, the context is relevant to what possible different meaning the language of the text may let in. But the context is again relevant when the judge comes to select among the possible interpretations the best one. It is therefore a fundamental misconception to say that the background to the statute may only be admitted in the event of an ambiguity. The interpretative process require judges to make informed choices."

[42] As I remarked earlier, there is an interconnection between the Wagering Act and the Racing and Betting Act. Although there is nothing in either Act which expressly provides that it is to be read together with and in the light of the other, it is plain, in my view, that the two Acts comprise an overlapping legislative scheme and should be construed accordingly.[12]

[43] In my view, the Legislature should not be attributed with the intention of rendering void, by operation of s 248 of the Racing and Betting Act, contracts entered into in consequence of transactions expressly authorised by the Wagering Act or of prohibiting the recovery by legal action of moneys payable as a result of such transactions. Section 11 of the Wagering Act expressly makes such transactions lawful and is expressed to have effect "despite any other law dealing with wagering, including, in particular, the Racing and Betting Act 1980". Section 11 does not declare such transactions enforceable but lawful transactions are prima facie enforceable. To reach a contrary conclusion, would be to credit the Legislature with a marked lack of confidence in the efficiency of its carefully crafted structure for totalisator betting whilst simultaneously manifesting absolute confidence in the willingness of licensees and their customers to honour their respective obligations without threat of legal compulsion.

[44] Section 248 of the Racing and Betting Act is a provision of a general nature which, even by reference to the definition of "wagering", makes no specific reference to conduct under the Wagering Act. The Wagering Act, on the other hand, makes extensive and detailed provision for specified totalisator betting. Those provisions contemplate claims for winning bets, limited circumstances in which winning bets may be retained by a licensee and a mediation process in respect of disputed claims under which there is no power to make a binding determination of rights.

[45] To borrow from the language of Lord Selbourne in Seward v The "Vera Cruz"[13] the general words in s 248 are "capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation". Also, the legislative scheme appears to be that totalisatior betting be specifically and exhaustively provided for and regulated by the Wagering Act. The provisions of that Act, where applicable, govern totalisation betting to the exclusion of other and more general legislation.

[46] It is also of some significance, in my view, that nothing is said in the Wagering Act to suggest that its elaborate statutory scheme is not intended to give rise to enforceable rights in relation to betting on the part of either licensees or persons placing bets. To my mind, it would be surprising if the legislative scheme was to bring about such a curious result by the application of a general provision in another Act.

[47] For the above reasons, I conclude that s 248 of the Racing and Betting Act does not render legally unenforceable bets placed with the defendant in the course of its business as a totalisator operator pursuant to the Wagering Act. I therefore order that the defendant's application be dismissed and that it pay the plaintiff's costs of and incidental to the application to be assessed on the standard basis.

[1] s 11.

[2] Racing and Betting Act, s 248(1)(a), (b).

[3] (1984) 2 NSWLR 177 at 186-187.

[5] [1968] 1 QB 509 at 516. See also Australian Capital Territory Gaming and Liquor Authority v Andonaros (1991) 103 FLR 450 and Petranker v Brown (1984) 2 NSWLR 177 (CA).

[8] (1990-1991) 172 CLR 167 at 171-2.

[9] (1998) 72 ALJR 851.

[10] See also the observations of Steyn LJ in Arbuthnott v Fagan (unreported) 30 July 1993 CA quoted in Charter Reinsurance Co Ltd v Fagan [1977] AC 313 at 326.

[11] "The Intractable Problem of the Interpretation of Legal Texts", The John Lehane Memorial Lecture 2002 given by Lord Steyn.

[12] Cf Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 726 and Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723-4.