A ticket costs $2.00 and it has terms printed on the back. Nothing in this appeal turns on those terms or on the Instant Casket T.V. Scratch-Its Bonus Game Rules 1992. It is accepted on all sides that the outcome of the appeal depends on the proper interpretation, if that is not too sophisticated a description for it, of what appears on the face of the ticket.

To appreciate the point involved, one really needs to see an original ticket, of which examples were supplied to the Court on the hearing of the appeal. A black and white reproduction does not do full justice to its colourful appearance. Subject to that reservation, the face of the ticket may, so far as material, be described as follows. The ticket is divided vertically at about the middle into two parts. On the right hand side are the words "$100,000 HOLE IN WON". They are printed on what is described as a latex cover, which on the right hand side appears below the words "Scratch the panel. Find 3 of the same symbols and win the prize". On the left hand side are the words "$100,000 SLAM DUNK". They appear on a similar latex cover above the words "Scratch the panel. Find 3 of the same dollar values and win that dollar value".

It is the left side of the ticket which is in issue here. When, in accordance with the instructions, the latex cover is removed, what is revealed is a rectangle, which looks like this -

The dotted line is included in the above representation only so as to indicate that the six sets of numerals are printed on a silver background, whereas the words $100,000 SLAM DUNK are on a maroon background, which is of a piece with the remainder of that side of the ticket.

The quest is to find three of the same dollar values. The argument on behalf of the individual appellants is that the "panel" referred to in the instructions is the whole of the area bounded by the rectangle. Hence it is said that the ticket holder is in this instance able to "find" three of the same dollar values and so win that dollar value, by counting the two sets of $100,000 on the silver background, and adding in as the third the $100,000 that appears above it as part of "$100,000 SLAM DUNK". On behalf of the Office it is contended that only the two sets of $100,000 on the silver background may be counted. On that footing, a ticket holder does not win $100,000 unless three such amounts or "dollar values" appear on the silver background, excluding "$100,000 SLAM DUNK".

We think the Office is correct. The words "$100,000 SLAM DUNK" are the name of the game and not one of the "dollar values" which a ticket holder hopes to find. The result would perhaps have been made a little clearer if the words above the silver area had been "$100,000 SLAM DUNK GAME"; but, even without adding the word "Game", we consider that the form of the ticket, read in the light of the instructions, is clear enough.

Confirmation that "$100,000 SLAM DUNK" is the name or title of the game, and is not intended to include one of the dollar values, can be gathered from the presence of those words on the latex cover before it scratched off; and also from the right hand side of the ticket. There the name of the game is "$100,000 HOLE IN WON", which appears on the latex cover before it is scratched; they also appear above the silver background on that side of the ticket once the cover is removed. The game on the right hand side is different from that on the left, which is no doubt why it has a different title; but there it is also the name of the game, and not a part of the game itself.

The matter is primarily one of impression; but the impression which has been formed by the members of the Court is clear. None of the appellants was lucky enough to "find 3 of the same dollar values" on the panel after scratching off the latex cover. The learned Judge was therefore correct in making the declaration as he did, and the appeal must be dismissed with costs.

The only remaining matter is the costs of the proceedings below. The primary Judge ordered that the individual respondents, who are now the appellants before us, pay the costs of the proceedings before him, which were instituted by the Office by an originating summons served on all three individuals. Plainly his Honour acted on the principle that, as the successful party, the Office should have its costs. It was said, however, that the litigation here resulted from ambiguities in the form of the tickets issued by the Office, and that the proceedings were in the nature of a test case. It may be remarked in passing that no such argument was addressed to the Judge on the occasion when he gave his judgment.

Whatever force such a consideration might have had if it had been advanced below, it is not now open to the appellants on this appeal to challenge the order for costs made by his Honour. The appeal against the declaration having failed, s.9 of The Judicature Act applies. It provides:

"No order made by any judge ... as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge making such order."

By O.91, r.1 the costs of these proceedings were left to the discretion of the Judge who heard the application. Leave to appeal against the order for costs was not obtained from his Honour. Section 9 thus imposes a statutory restriction on any appeal against that order unless leave to appeal was erroneously refused. That is not so here because leave to appeal has never been sought from the Judge himself.

We were pressed by Mr Gotterson Q.C. for the first appellant with the decision of the Court of Appeal in England in Wheeler v. Somerfield [1966] 2 Q.B. 94, 106, where, speaking in relation to the English analogue of s.9 of The Judicature Act, Lord Denning M.R. said of an appellant that if:

"he makes a complaint, not only about costs, but also about other matters, then he can appeal both on those other matters and also on the costs; and the court has full jurisdiction to deal with them. Even if he fails on the other matters, this Court has jurisdiction to deal with them. His complaint on the other matters must, of course, be genuine."

The decision in Wheeler v. Somerfield was not followed in South Australia in Road Chalets Pty. Ltd. v. Thornton Motors Pty. Ltd. (1986) 47 S.A.S.R. 532, where Zelling A.C.J. said it was "against the whole course of reported cases for a century", beginning with Harris v. Aaron (1877) 4 Ch.D. 749. It was again not followed in Victoria, where in Thorne v. Doug Wade Consultants Pty. Ltd. [1985] VicRp 48; [1985] V.R. 433 the Full Court considered itself bound by three earlier decisions of that Court. In Queensland the English decision was followed by a single judge of the Supreme Court in McIlwraith McEachern Operations Limited v. C.E. Heath Underwriting & Insurance (Australia) Pty. Ltd (1990) unrep. Q.L.R. Aug. 13, 1994, which, however, is inconsistent with the decision of the Full Court of this State in Thorpe Nominees Pty. Ltd v. Henderson & Lahey [1988] 2 Qd.R. 216, per Derrington J. at 227, concurred in by Thomas J. at 21, and evidently also by Matthews J. The decision in Saunders v. McKenna [1961] Qd.R. 425, also assumed, if it did not decide, that leave to appeal against an order for costs was necessary, although in that instance an appeal was allowed against a substantive order made in the court below.

Leaving the matter to be decided according to whether an appeal involves a "genuine complaint" would provide a test which it would not be easy to apply. In any event, it is not the test that the legislature chose to adopt in enacting s.9, under which leave of the judge who made the order is the criterion of the right to appeal. The prohibition imposed by s.9 is, it may be emphasised, not directed or confined to an appeal which is only as to costs. It is not the form of the appeal but the character of the order appealed against that is decisive; if it is an "order ... as to costs only", then it may not be the subject of an appeal without leave.

That is the state of affairs that prevails here. Once the appeal against the declaration is dismissed, all that will remain is the order that the respondents to the originating summons (who are the appellants before this Court) "pay the applicant's costs of and incidental to the summons to be taxed". That order is, in terms of s.9 of the Act, an "order ... as to costs only", and so may not, without leave, be subject to any appeal.

[Schonnecht & Ors. v. Golden Casket Art Union Office]

CATCHWORDS CONTRACT - CONSTRUCTION - Instant Casket Ticket - Whether dollar amount contained in heading under latex cover part of game.

COSTS - ORDER MADE BELOW - Discretion under O.91, r.1 R.S.C. - Application of s.9 The Judicature Act 1876 - Leave to appeal from the judge who made the order required - Wheeler v. Somerfield [1966] 2 Q.B. 94 not followed.

Counsel: R. Gotterson Q.C., with him D. Peterson for the appellant Schonnecht

Solicitors: Bushnells Solicitors, for the appellant