Defina v Kenny [1946] HCA 20

164 HIGH COURT

[HIGH COURT OF AUSTRALIA.]

_ DEFINA ' 2 ' E k ' ' . ApPEI DerrenDAntT, AND KENNY Lo, OE See PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

H.C. or A. Gaming and Wagering—Oredit bet on racecourse—Satisfactory aci

1946. indicating nature of bet—Unstamped betting ticket—Capacity of bookmake ae sue—The Racing and Coursing Regulation Acts 1930 to 1936 (Q.) (21 Geo. Brispane, No. 27—1 Edw. VIII. No. 24), 8. 22. sfeiadoe Section 22 of The Racing and Coursing Regulation Acts 1930 to 19 Sypyry, provides that a bookmaker who (having a permit under the Racecourses July 30. 1923 to 1936) makes on a racecourse a beb with any person shall be d Latham 0.J., have made a contract and may sue and be sued on such contract. The Rich, Dixon further provides that "it shall be the duty of any bookmaker mak MeTiernan JJ. credit bet . . . to issue a stamped betting ticket or give any other factory acknowledgment indicating the nature of the bet to the person ¥ whom he makes the bet. . . . Provided that . . . such ackno

ment shall not be made by any unstamped betting ticket,"

Held, by Latham C©.J., Dizon and McTiernan JJ., that an oral s atom by the bookmaker and a direction to his clerk to record the bet, in the presence of the bettor, did not constitute a satisfactory acknow! within the meaning of the section.

of the right of action for the recovery of the bet and therefore what to a satisfactory acknowledgment is a question that did not arise.

Decision of the Supreme Court of Queensland (Full Court), by maja

reversed, a '

72 CL.R.] OF AUSTRALIA.

Appr from the Supreme Court of Queensland.

Martin Joseph Kenny sued Frank Defina in the Supreme Court of Queensland for £500, being the amount of losing bets made by the defendant with the plaintiff, a bookmaker, holding a licence to carry on business as such under the Queensland Turf Club, Brisbane. The bets were made on 7th April 1945 at a race meeting held and conducted by the Brisbane Amateur Turf Club at Albion Park Racecourse, Brisbane. As the bets were made, the plaintiff repeated the bets and directed his clerk to record them in the book which was kept under The Racecourses Acts 1923 to 1936 (Q.) for income tax purposes. Evidence was given that, in respect of a bet of £50 made on a racehorse Jenny Rah, the defendant looked at the entry in the book kept by the plaintiff's clerk and checked the bet. At the trial, no evidence was called for the defence. Webb C.J. found that, in all the circumstances, there was a satisfactory acknowledgment of the bets and gave judgment for the plaintiff for £500 with costs. On the defendant appealing to the Full Court, the appeal was by a majority (Philp and Mansfield JJ.) dismissed (Macrossan S.P.J. dissenting except as to the bet on Jenny Rah).