Sobye v Levy [1909] HCA 70; (1909) 9 CLR 496 (19 November 1909)

HIGH COURT OF AUSTRALIA

Sobye Informant, Appellant; and Levy Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

19 November 1909

Griffith C.J., Barton, O'Connor and Isaacs JJ.

Piddington, for the applicant.

Griffith C.J.

I do not think this is a case in which special leave should be granted. In his judgment the Acting Chief Justice says[1]: "In the case of the Attorney-General v. The Mutual Loan Agency39 S.R. (N.S.W.), 148., this Court decided that to constitute a lottery there must be a distribution of prizes by mere chance or lot, and not as the result of the exercise of judgment or skill on the part of the competitors. That decision has been recently affirmed by the High Court. I do not understand the respondent to contest that definition, but to contend that for various reasons the result of this competition did in reality depend on chance and nothing else."

If that statement was intended to lay down the principle that the mere fact of there being in any particular case the exercise of judgment or skill conclusively determined whether or not it amounted to a lottery, I do not so interpret the decision referred to. A competition may be a lottery although some element of skill is involved.

But whether or not there was a lottery in the present case seems to me to be purely a question of fact. It is possible that this was a lottery, or, on the other hand, that it was not. It depends on the particular facts of each case whether the transaction was an honest or a fraudulent one. The Court does not grant special leave to appeal on a mere question of fact. I therefore am of opinion that this application should be refused.

Barton J. and

O'Connor J.

concurred.

Isaacs J.

I take a different view. I regard this decision of the Court as one which practically defeats the object of the Act. I take the view adopted by Cohen J., in whose judgment I concur. It has been practically held by the majority of the Court that, if a competitor has anything to do in connection with a competition, it does not become a matter of chance, and therefore is not a lottery. I think that is absolutely contrary to Blyth v. Hulton & Co. Ltd.[3] and Barclay v. Pearson[4], and I think it is also contrary to the later case of Willis v. Young and Stembridge[5].

The facts of this case are undisputed. The magistrate found that it was a lottery. The competition was simply this, that a person paid 1s. for a packet of cigars and got a receipt in these terms: "This receipt is given, and the competition entered into by the holder thereof upon a distinct understanding and agreement that the decision of any committee appointed by the proprietor to award the prizes shall be final and conclusive. £500 to be distributed. The number of this coupon receipt corresponds with number of Limerick sent in. Prizes will be paid immediately after award of committee is made." There is nothing in the coupon to indicate that excellence is to be the standard. The committee, if they choose, may select any competitor's paper because of its absurdity. The selection is purely an arbitrary one. There is nothing to say that there will be a breach of the conditions if they do not take excellence as the standard. The mere fact that a particular judge has chosen to take the excellence of the lines as the standard of merit he will adopt does not seem to me to conclude the matter. The question is what is the bargain entered into.

I think this is an appeal, not from a question of fact, but from a conclusion of law, namely, that as a matter of law, because a line has to be written by a competitor, this is not a lottery. I think that is a wrong decision, and that leave to appeal should be granted.

Application refused.

Solicitor, Crown Solicitor for New South Wales.

[1] 9 S.R. (N.S.W.), 688, at p. 690.

[2] 9 S.R. (N.S.W.), 148.

[3] 24 T.L.R., 719.

[4] (1893) 2 Ch., 154.

[5] (1907) 1 K.B., 448.