TOTALIZATOR AGENCY BOARD OF NEW SOUTH WALES v HODGKINSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, COLE JJA and WADDELL AJA 2 May 1996, 2 May 1996 [1996] NSWCA 534 TOTALIZATOR OFF-COURSE BETTING ACT, 1964 — s21(1) — R12 — MEANING OF "BET" FOR PURPOSES OF ACT Meagher JA This is a dispute between the TAB and a punter called Mr Hodgkinson, the appellant being the Totalizator Agency Board. The complaint concerns a claim by Mr Hodgkinson for the amount of $14,212.75 arising out of a bet made on 4 November 1989 on the Melbourne Cup. There was a discrepancy between the relevant documents filled in by the punter and the receipt given by the Board. The details ought to be explained a little further. What happened is this. On 4 November 1989 Mr Hodgkinson decided to go to the Harbord Diggers Club for the Melbourne Cup race. That club had decided that it would have TAB facilities as well as a large television screen for the customers to view the race. He arrived at the club about 2.15 pm and the Melbourne Cup was due to commence at 2.40 pm. He bought a drink and then filled in two betting slips. The first slip was for horse number 4 in the Melbounrne Cup for a winning ticket. That horse was Al Talaq. The second was a box trifecta bet on the same race in respect of which he filled in four horses, namely numbers 1, 4, 9 and 24. He joined a long queue at the TAB window at about 2.20 at which stage there were about 15 people in front of him and a similar number behind. All of these punters were anxious to place their bets, obviously before the race started and as soon as possible. Mr Hodgkinson reached the window at about 2.37. He handed over the two betting slips together with a $50.00 note to a man behind the counter, a gentleman called Mr Eisenhauer. Mr Eisenhauer then handed the two betting slips to a fellow employee, Miss Verlin. She then passed each of the betting slips through the computer terminal and received through that terminal two betting slips together with a display of the costs of the bet. She handed the two betting slips to Mr Eisenhauer who, in turn, handed them to Mr Hodgkinson with an amount of change. The two betting slips were dropped into a bin close to Mr Eisenhauer. If Mr Hodgkinson's bet had been accurately recorded, it would have cost him $20.00 for his single bet and $24.00 for his box trifecta which would have meant that he was entitled to a return of $6.00. If he, in other words, had had a three horse trifecta it would have only cost him $6.00, his total investment would have been $26.00 and the return change would have been $24.00. He did not notice what was on his betting receipt and he did not notice exactly what change he had received. Bearing in mind the congestion around the place of the betting ring and the general hysteria which accompanies the Melbourne Cup, it is hardly surprising. The fact is though, that his betting receipt indicated only a three horse trifecta, numbers 1, 9 and 24, omitting the winning number 4. It is those elementary facts which form the present dispute. 2 UNREPORTED JUDGMENTS There is no challenge to the facts found by his Honour which, in general, may be taken to be wholly favourable to Mr Hodgkinson. The only point which arises on this appeal by the TAB is as to the defence which it claims exists under Reg12 of the Totalizator Off-Course Betting Regulations 1964. That Regulation is in the following terms: "Where a person makes a bet to which this Part applies - (a) The details of the bet shall be deemed to be the details contained in a record in respect of that bet made by the Board for the purpose of recording details of such bets; and (b) the ticket issued to the person in respect of the bet pursuant to CL7 shall be deemed to have those details recorded on it, notwithstanding that those details differ in any respect from - (c) the details indicated by that person when making the bet; (d) the details transacted in respect of the bet to the Board from the branch where the bet was made; or (e) the details actually recorded on the ticket." Mr Bradford, who appears with considerable ability for the respondent, Mr Hodgkinson, has conceded that if the case comes within Reg12 and Reg12 is valid, then the appellant must win. In my opinion the case comes fairly within Reg12 and Reg12 is a perfectly valid Regulation. Reg12, as far as (a) is concerned, says that "the details of the bet shall be deemed to be the details contained in a record kept by the Board". It is necessary to understand what that means. In the present case, located within the TAB area of the Club was a computer terminal. Part of this terminal consisted of a scanner or reader. The betting slip is placed in the slot at the top of the terminal and then is read by the scanner. Electronic impulses which would accurately reflect what is on the betting slip are then transmitted to the host computer or the central processing unit in the TAB's premises at Ultimo. The central processing unit then records details of the bet it receives and transmits impulses back to the terminal which are then translated by the terminal where the betting receipts are printed out by a printer and the total cost of the bets by that customer is displayed. There are thus two possible sources of error. Either the information on the betting slip is not correctly transmitted to the home computer or the home computer incorrectly transmits that information to the betting receipt. So there is at least a double chance of error. In either event the result would be that the betting slip which the punter hands over to the TAB does not correspond with the betting receipt which the TAB gives the punter. What Reg12(a) does is to say that the bet, that is what is on the betting slip, "shall be deemed to be that which is contained in the TAB's record". In other words, on the home computer and what is more important perhaps is 12(b) which says that "the ticket issued to the person in respect of the bet pursuant to CL7 shall be deemed to have those details recorded on it". In other words, CL(b) deems the ticket issued by the TAB, the betting receipt in other words, to have correctly written on the ticket all the details in the computer with reference to that bet even though, in fact, those details are not accurately recorded. This means there is in fact a double deeming. The computer is deemed to have the details of the bet, even though it does not actually have it, and the betting receipt is deemed to have what is on the computer, even though it does not have it. The result in each case becomes that piece of paper, the betting receipt in the hand of the punter, is his bet for the purposes of the transaction. That seems to me to be the plain result of Reg12 and that covers the present case entirely. URMALIZATOR AGENCY BOARD OF NEW SOUTH WALES v HODGKINSON (Waddei AJA) There is a discrepancy between the betting ticket and the betting receipt and the effect of Reg12 is to give primacy to the betting receipt. The only remaining question is whether Reg12, so construed, is within the teens of s21 of the Act. By "Act" I mean the Totalizator Off-Course Betting Act 1964. In my view it is. $21(1)(b) of the Act says that: "The Governor may make regulations not inconsistent with this Act for things that are necessarily or have been prescribed and in particular for the following: (b) the closing times for making bets with the Board, the identification of persons offering to make such bets and (I stress these words), the acceptance, acknowledgment and recording of any such bets". It is fairly obvious that there is a practical necessity that somebody should decide, according to some principle, what bets have been accepted, how that should be acknowledged and how it should be recorded. Clearly, in a business as complicated as Totalizator betting, there must be an occasional error. The wonder is not that it occasionally occurs but that it occurs so seldom. That error was due to speed, which often generates mistakes, the use of machines which may occasionally malfunction or occasionally, to fraud - not that there is any question in the present case of any fraud. But whenever an error exists, occasioned by any of those matters or by some other cause, there will be a discrepancy between the details on the betting slip and the details on the betting receipt. When such a discrepancy arises there must be some means of ascertaining what, in fact, the Board should treat as a valid bet. It is both necessary and convenient that there should be such a means. S21 provides a power to make regulations in that respect and Reg12 the means for sorting out that problem. For these reasons, I am of the view that his Honour below made a mistake in holding that the Regulations were invalid and should have found that the Totalizator Agency Board was successful in its defence. I am therefore of the view that the following orders should be made: (1) The appeal be allowed; (2) that his Honour's verdict and judgment below be set aside; (3) that there be a verdict and judgment for the defendant below; (4) that the respondent should pay the appellant's costs both below and in this court. As far as the costs in this court are concerned, the Respondent should have a certificate under the Suitor's Fund Acct. Cole JA I agree Waddell AJA I agree. Meagher JA: Those are the orders of the court. Following orders should be made: (1) The appeal be allowed; (2) that his Honour's verdict and judgment below be set aside; (3) that there be a verdict and judgment for the defendant below; (4) that the respondent should pay the appellant's costs both below and in this court. As far as the costs in this court are concerned, the Respondent should have a certificate under the Suitor's Fund Acct. 4 UNREPORTED JUDGMENTS Counsel for the appellant: H Di Suvero Solicitors for the appellant: Cowley Hearne Counsel for the respondent: M Bradford Solicitors for the respondent: Minter Ellison Morris Fletcher