Re Roebuck[1999] QDC 263

REGISTRY: ROCKHAMPTON

NUMBER: M.8 OF 1999

IN THE MATTER OF The District Court Rules 1968

AND

IN THE MATTER OF “The Lotteries Act 1997”

AND

IN THE MATTER OF a claim by ARTHUR ROEBUCK

REASONS FOR JUDGMENT

HIS HONOUR JUDGE BRITTON S.C.

DELIVERED the 22nd day of October 1999

This is an application by ARTHUR ROEBUCK (“the Applicant”) for orders that:

FACTS

The respondent is Golden Casket Lottery Corporation Limited (“the Corporation”).

On 25 February 1998 the applicant purchased two (2) Golden Casket Instant Scratchit Games entitled “$100,000 Casino Games Roulette”. The tickets were tendered during the hearing of the application and were marked collectively Exhibit 1. They are numbered 024844-050 and 024844-051.

I reproduce as Appendix “A” a photocopy of the tickets as they now appear.

There was also tendered at the hearing a specimen ticket in the same series which became Exhibit 2.

I reproduce as Appendix “B” a photocopy of the specimen ticket which shows how the tickets purchased by the applicant would have appeared at the time the games were purchased by the applicant.

THE COMPETING CONSTRUCTIONS

The applicant contends that on the true construction of the instructions on the tickets he won the prize for each game and thus is entitled to be paid:

In respect of ticket No. 024844-050: $4.00 for Game 1 and $100,000.00 for game 2;

In respect of ticket No. 024844-051: $3.00 for Game 1 and $10,000.00 for Game 2;

a total of $110,007.00.

The construction for which the applicant contends is as follows:

To win Game 1, the “player” must find the same numerical symbol (i.e., “1”) in that single game.

To win Game 2, the “player” must find the same numerical symbol (i.e. “2”) in that single game.

Put shortly, the Corporation contends that the true construction is that matching numbers must be found in the game itself; so that the prize is won if (for example) in Game 1, the numerical symbols include two “5”s (or any other numeral). It is argued by the Corporation that in that way (and indeed only in that way) the player of the game is able to “find the same numerical symbol in a single game”.

The Corporation argues that on the construction for which the applicant contends the game number is part of the game for the purposes of identifying the entitlement to a prize.

THE APPLICANT'S ARGUMENT AS TO CONSTRUCTION

The applicant argues that the use of the word “roulette” in the name of the game is significant in arriving at the true construction. It is submitted that the games are “roulette” in which the gambler already knows a particular numerical symbol, and by the spin of the wheel hopes to “find the same numerical symbol in a single game and win the prize” for that game.

I was referred to the meaning of “roulette” in the “Macquarie Concise Dictionary” 1998 edition. It is as follows:

It is then argued that, consistently with roulette, the phrase “Scratch Game 1 and 2 “contains the numerical symbols “1” and “2” and that the purchaser's attention is again directed to those numerical symbols “1” and “2” by the arrows pointing to the panels, which clearly display the symbols “1” and “2” respectively.

Reference was made to the use of the word “same” and the meaning of that word in the “The Macquarie Dictionary”, (3rd ed. 1997) and “The Australian Oxford Concise Dictionary” namely:

The argument then is that the only “numerical symbol” just mentioned previously or alluded to is “1” (for Game 1) and “2” (for Game 2).

It is further argued that the phrase “the same numerical symbol” makes it plain that the purchaser is to look for only one symbol - not two of the same symbols - in each game and that the phrase “in a single game” is consistent with and reinforces this meaning. It emphasises and looks at the games separately. When this phrase is read with the concluding phrase “for that game” (“that” referring back to “a single game”), and when the instructions are read as a whole, the meaning conveyed is that:

The applicant argues that the construction contended for by the Corporation is not open on the words of the instructions in that those words simply do not express or imply the words “find two of the same numerical symbols” nor any other words or symbols requiring “two of a kind”.

THE CORPORATION'S ARGUMENT AS TO CONSTRUCTION

The corporation argues that the construction contended for by it is the only one which is consistent with the language used in the instruction on the tickets and other indications on the tickets. It submits correctly that the ticket must be construed as a whole and that the court will prefer the construction which gives meaning (as far as is possible) to every part of it and which allows every provision to operate (Australian Broadcasting Commission v. Australian Performing Rights Association Ltd (1973) 129 CLR 99 at 109).

The Corporation identifies that there is a difficulty with the words “same numerical symbol”. The question is: same as what? It says there is nothing to suggest that the phrase means “the same as the game number” or “same as the game numbers” or same as either of the game numbers” and points out that the game numbers will have disappeared in the process of scratching the panels of each game.

It is argued that the same numerical symbol can be found in a single game only if the one numerical symbol appears at least twice in the game after the panel is scratched to reveal the numerical symbols.

It is submitted by the Corporation that the applicant's construction treats the instruction as if the identification of the game (as 1 or 2) is part of the game itself for it is necessary to match the number 1 of game one with a numerical symbol in the game but the language of the ticket does not suggest that game identification is part of the game - the words “Scratch Game 1 and 2” identify how to play the game or how to get into the game (before the process of “finding” commences).

The Corporation accepts that the construction contended for by it could have been more plainly expressed but it argues that the natural meaning of the word “same” leads to the conclusion that the words mean “the same numerical symbol as another symbol in a single game” and that means at least two of the same.

Another argument for the Corporation is that there are other parts of the ticket which are relevant to the construction of the instructions. It is argued that the words (on the reverse of the ticket) “$3,600,000 in prizes includes 1 prize of $100,000 .... are incompatible with the applicant's construction in two respects both of which appear from the affidavit of JENNIFER WESTBURY which was relied upon by the Corporation. In short this shows that if the Applicant's construction is correct, the total prize pool would be over $100 billion with over 340 000 prizes of $100,000.00 and further that such a result would be unreasonable with the effect that the court would prefer the meaning which would not lead to an unreasonable result.

Counsel for the applicant submitted that the evidence as to the potential liability of the Corporation if the applicant's construction is accepted is irrelevant to the proper construction of the contract and that contracts are construed objectively by reference to their words: Taylor v. Johnson (1983) 151 CLR 422 at 429 and further that evidence of matters not published to the applicant (see para 3 of his affidavit sworn 11 October 1999) are inadmissible: State Lotteries Office v. Burgin, N.S.W. CA. 19/5/93, unrep. BC 930 1896 per Kirby Pat BC 12.

The applicant argued that if the instructions are found to be ambiguous, the meaning advanced by him is the better interpretation and that any ambiguity should be resolved against the Corporation as it was the party responsible for composing the instructions and further that if the Corporation's construction were found to be equally open, the fact that the Corporation had drafted the instructions should “tip the scales” in favour of the applicant's construction: Burgin at BC 7; Re Golden Casket Art Union Act 1978-1993 6/5/94, unrep. BC 9404485, per Thomas J at 3.

THE CORPORATION'S CONSTRUCTION PREFERRED

In Burgin's case, Kirby P (as he then was) set out a number of “guidelines for ascertaining the intention which the law will impute to the parties”. His Honour referred to a passage from Lord Upjohn in Whishaw v. Stephens (sub nom In re Gulbenkian's Settlement) (1970) AC 508 (HL) at 522 which it is useful to set out:

In Re Golden Casket Art Union Act 1978-1993 (supra) Thomas J said:

As was said in the judgment of the Court of Appeal in Re Golden Casket Art Union Office (1995) 2 Qd R 346 at 348/20, the matter is primarily one of impression. I am not persuaded that the use of the word “roulette” in the name of the Game is of any assistance in the task of construction of the ticket. Having regard to the dictionary meaning of the word, it does not seem to me that there is any real similarity between the game of roulette and the game on the tickets.

I have come to the conclusion that the construction contended for by the Corporation is the correct one. That is, that in order to win the prize the player must find matching numerical symbols in the game itself.

It does not seem to me to matter that this construction does not specify how many of the same numerical symbols must be found to win the prize.

It must mean that there must be found in the game itself at least two of the same numerical symbol.

In my view the opening words of the instructions “Scratch Game 1 and 2” are not part of the game and the word “same” should not be read as referring back to that phrase. It seems clear to me that the instruction to “find the same numerical symbol in a single game” on the ordinary, everyday meaning of those words does mean that to win the game the player must find more than one identical numerical symbol displayed in the game panel after it has been exposed by scratching off the latex cover.

It is not without significance in my view that once the instruction to scratch Game 1 and 2 has been complied with and the player is about to begin the search to find the same numerical symbol the words identifying which game is Game 1 and which game is Game 2 will have disappeared, so that unless the player had previously observed how each was numbered he or she would not know which was Game 1 and which was Game 2. Further, even if the player did first observe which game was which it would not be apparent on the face of tries ticket when presented to an agent for payment that it was indeed a winning ticket.

I should say that in reaching the conclusion which I have, I have not had any regard to the affidavit of WESTBURY as to the financial liability of the Corporation if the Applicant's contended construction were favoured. In my view that evidence is inadmissible unless I were to come to the conclusion (which I have not) that the words are ambiguous (as distinct from being difficult of construction).

OTHER ARGUMENTS

The Corporation also argued that whatever construction was placed on the words in the ticket the Applicant was not entitled to claim a prize because of the provisions of certain Lotteries Rules.

Because of the conclusion I have reached in relation to the construction of the ticket, it is unnecessary for me to make a decision about the effect of the Rules upon the Applicant's eligibility to claim a prize.

ORDER

I therefore determine that the proper construction of the following words appearing on two Instant Scratch-It tickets bearing No. 0248444-050 and 024844-051:

Is:

In respect of each game in order to win the prize for that game, the player must, after scratching the latex cover over that game, find in the panel for that game at least two numerical symbols which are identical with each other.

In the circumstances I refuse the application for a declaration being the relief sought in paragraph 2 of the Notice of Application.

APPENDIX A

APPENDIX B