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Kuk v Forint Investment Ltd [2022] PGDC 113; DC9043 (3 November 2022)

DC9043

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
CV 130 of 2022

BETWEEN
PHILIP KUK
Complainant

AND
FORINT INVESTMENT LTD
Defendant

LAE: J Morog

2022: 4 August
18 October & 3 November

CIVIL- Trial – Wagering – cause of action – null and void – negligence - volunti non fit injuria.

Cases Cited

Kopen v Francis [2005] PNGLR 173
Seke v Collins & Leahy Pty Ltd (1997) N1605

References

Gaming Act 1959

Counsel
Complainant In Person
R Tataeng, for the Defendant
3 November 2022
1. J MOROG: This is a wager case of betting on the winning team(s) in the Australian National Rugby League games. The complainant won but he lost the original ticket over the weekend. He managed to produce a photo print of his ticket to collect his winnings but the defendant refused to pay because of company policy that it only pays for original tickets. The complainant now sues the defendant for the bet he won.
2. Both parties have filed their affidavits and both were cross-examined on their respective affidavits. They have filed written submissions. I have considered their affidavits, sworn testimonies, and written submissions as well as their brief oral submissions.
3. The defendant contends that he cannot pay the complainant for two reasons. Firstly, the complainant did not provide the original ticket, and secondly that the Gaming Act 1959 prohibits this matter to be dealt with by the courts.
4. The complainant tendered his affidavit sworn and filed on 30^th May 2022 and also testified under oath on 4^th August 2022 in the trial of this matter.
5. His case is that on Friday 20^th of May 2022 between 1 pm and 2 pm he was at the defendant’s betting shop at 8^th Street, Top Town in Lae. He bought a total of seven (7) tickets. Five of those tickets he bought them for K5 and the other two tickets he bought them for K100 and K300. The ticket that he bought for K100 has the projected winnings of K7, 774.00 and bore the Serial Number as “Bet No. Lae City 01/01/5048376” and that is the winning ticket.
6. After making the bets the complainant and his friends drank beer and watched the games over the weekend. He lost his phone with the winning ticket but he managed to have a photo of the ticket which he produced it to the complainant along with a signed Statutory Declaration declaring that he lost the original ticket but the defendant refused to pay him.
8. Defendant through its Branch Manager Mr. Deavanesan Ramuthevar relied on his affidavit sworn on the 6^th of July 2022 and filed on the 7^th of July 2022 and further testified under oath on the 4^th of August 2022.
9. He said he is in charge of the Information Technology Section of the defendant and he is the Branch Manager. He did explain to the complainant that they only pay customers with original tickets and notices to that effect are posted on all the betting counters and also the payout counter as well as at the entrance of the betting shop.
10. He said the payment system is only by way of scanning the bar code on the original ticket. That will only be possible with original tickets and not a copy or photo print-out as in this case.

Issue(s)
Whether or not this purported contractual relationship premised on wagering is legally enforceable?

If the answer to the first issue is in the negative then there is nothing more to be be adjudicated on. If the answer is Yes it is enforceable then the next issue is whether the defendant is liable to pay the complainant his winnings?
The Law
11. Gaming and Wagering are legally governed under Part V of the Gaming Act 1959 and in this case the answer to the first issue is provided for under section 14 of the Act. That section provides as follows;
PROCEEDINGS FOR CONTRACTS BY WAY OF GAMING.

(1) Subject to Subsection (3), a contract or agreement, whether by parol or in writing, by way of gaming or wagering is null and void.

(2) Proceedings shall not be brought or maintained in any court for recovering a sum of money or valuable thing–
(a) alleged to be won on a wager; or
(b) that has been deposited in the hands of a person to abide the event on which a wager has been made.

(3) Subsection (1) does not apply to a subscription or contribution or agreement to subscribe or contribute for or towards a plate, prize or sum of money to be awarded to the winner of a lawful game, sport, pastime or exercise.

12. The preamble to the Act reads that its provisions relate to lotteries, games and wagers, they are to be incorporated and read as one with the Criminal Code 1974. The preamble clearly criminalizes wagering or lotteries with certain exceptions as provided for within the Act.

13. Wager is defined by the Oxford Law Dictionary as an arrangement to risk money on the result of a particular event. In this case, the complainant has risked his money on the result of the rugby games played in Australia.

14. The results for the ticket he bought for K100 were successful and he won K7, 774.00 but he lost the original ticket. If he had not lost the ticket he would have collected his winnings without a difficulty.

15. The defendant’s policy is clear and notices were put on the betting shop and betting counters that “customers must take care of the betting ticket. Lost and torn or damaged tickets will be invalid and no pay-outs will be made...”

16. This is the point where the legal interpretation of section 14 (1) (2) of the Gaming Act is relevant to say whether the complainant can sue the defendant to recover the K7, 774.00 alleged to be won on the wager.

17. The relevant section says plainly that a contract or agreement, whether by parol or in writing, by way of gaming or wagering is null and void AND proceedings shall not be brought or maintained in any court for recovering a sum of money or valuable thing alleged to be won on a wager.

18. Therefore the answer to the first issue is in the negative hence it is not necessary for me to consider any contractual relationship or otherwise.

19. However, even if I were to consider the contractual relationship arising out of the wager on rugby games it is sufficiently clear that the notice posted by the defendants can be read into the contractual relationship.

20. In that the complainant will have accepted that term of their relationship before placing his bet and the moment he lost his ticket he is bound by that term. We cannot imply any other term or exception to the clear notices published by the defendant unlike in the case of Seke v Collins & Leahy Pty Ltd (1997) N1605.

21. In the Seke case raffles tickets were both and at the draw the first prize was given to the ticket that was drawn second instead of the ticket drawn first. It was a decision of the executives at the eve of the draw without any notice or announcement of such a policy of the draw. So the court ruled that it was reasonable to imply the term of the relationship between the purchaser of the raffle ticket and the seller that the first prize will go to the ticket that was drawn first.

22. Also this is a case where our law (Gaming Act) recognizes but does not allow for causes of action to exit is law hence rendering that sector of business as a risk taken by parties at their own peril. The maxim volenti non fit injuria fittingly applies in this case and so it exonerates the defendant from any liability.

23. The maxim was clearly articulated in the finding of the Court by the late Justice Kirriwom in the case of Kopen v Francis [2005] PNGLR 173 where it was held that;

The law of negligence places the responsibility squarely on the victim where injury sustained by him was his own negligence or carelessness under the maxim volenti non fit injuria. It simply means that if one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting from it.

24. In the case before me, it suffices that the complainant is a regular who places bets for all rugby games and he is deemed to be aware of the notice that the defendant will not pay for lost tickets. Also his own carelessness in losing the original ticket is the main reason he cannot claim his winnings. The maxim volenti non fit injuria applies against his claim too.

25. Nonetheless I have ruled that this cause of action is rendered null and void by law and that is the ruling of the court. I make the following orders;

The case is dismissed
Parties bear their own costs.

Orders accordingly.
Lawyer for the Complainant In Person
Lawyer for the Defendant Gamoga & Company Lawyers