New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski [2011] FCAFC 106

FEDERAL COURT OF AUSTRALIA

New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski [2011] FCAFC 106 Citation: New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski [2011] FCAFC 106

Appeal from: Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876

Parties: NEW SOUTH WALES LOTTERIES CORPORATION PTY LTD v ELIZABETH KUZMANOVSKI and BALE KUZMANOVSKI

File number: NSD 1155 of 2010

Judges: SIOPIS, COWDROY & TRACEY JJ

Date of judgment: 24 August 2011

Catchwords: CONTRACT – contract between purchaser of lottery ticket and lottery provider – contract regulated by State legislative scheme governing lotteries – legislative scheme incorporated into contract – primary judge erred in construction of contract – failed to give regard to paramountcy of the relevant Act of parliament over the subordinate legislation made under the Act – non-compliance with subordinate legislation therefore of no consequence TRADE PRACTICES – misrepresentations alleged to be made in trade or commerce to the purchaser and holder of lottery ticket by lottery provider – whether representation conveyed that contract be construed according to the legislative scheme – whether appellants were members of class of consumers to which representations directed – class of consumers very wide – primary judge's reasoning that representation would have conveyed same meaning to ordinary class of consumers as it had conveyed to appellants was not in error DAMAGES – appeal against award of damages by primary judge – quantum of damages awarded in respect of Trade Practices claim said to be excessive – damages awarded on basis of disappointment – appeal ground dismissed – open to primary judge to award damages in sum he did CONSTITUTIONAL LAW – notices issued under s 78B of Judiciary Act – whether statutory provisions relied on by appellant invalid and unenforceable – impugned provisions of legislative scheme said to be inconsistent with statutory causes of action under Trade Practices Act – not impossible for the lottery provider to comply with both State and Commonwealth statutory requirements – lottery provider not prevented by legislative scheme from doing what Commonwealth legislation allowed – no manifest intention that Commonwealth legislation "cover the field" – appeal grounds dismissed – whether State provisions impermissibly interference with the judicial power of the Commonwealth – no obligations imposed on Court by State provisions – no departure from judicial process mandated – appeal ground dismissed for lack of substance – whether State provisions contrary to constitutional liability of State to be sued in contract – State not liable for debts, obligations or liabilities borne by lottery provider – whether play instructions on lottery ticket prevailed over game any specification on ticket – no representation about game specifications was ever made to ticket holders – appeal ground dismissed for lack of substance