CrownBet Pty Ltd v State of New South Wales

1. [1]

   The plaintiff, CrownBet Pty Ltd, is a corporate bookmaker licensed by the Northern Territory government under the Racing and Betting Act 1993 (NT).

2. [2]

   On 20 December 2016, CrownBet entered a Master Services Agreement with the third defendant, ClubsNSW Pty Ltd. ClubsNSW is the peak representative body for clubs in NSW and represents some 1,200 clubs throughout New South Wales. That agreement was amended on 8 June 2017, and a wholly owned subsidiary of ClubsNSW, ClubsNSW Digital Services Pty Ltd was substituted for ClubsNSW as the counterparty to CrownBet. Nothing turns on this change. I will refer only to ClubsNSW.

3. [3]

   By the Master Services Agreement, ClubsNSW appointed CrownBet as its “Official Digital Wagering Advertising Partner”. For its part, CrownBet agreed to provide ClubsNSW with the “CrownBet Investment” (being, in effect, the cost of supplying the equipment and services to which I refer below) and to deliver the “Digital Wagering Advertising Solution” (being the provision of that equipment and those services) to “Participating Licensed Venues” (being clubs who choose to enter into Individual Licensed Venue Agreements with CrownBet).

4. [4]

   On 27 April 2017, CrownBet entered into an Individual Licensed Venue Agreement (which the parties referred to as the “ILVA”) with the fourth defendant, Warners Bay Bowling Club Co-Op Ltd (trading as Warners Bay Sports Club). The ILVA is expressed to have a commencement date of 1 July 2017 and refers to the “Roll Out Plan” of the “Digital Wagering Advertising Solution” in two phases: “Phase 1” and “Phase 1.1”.

5. [5]

   Pursuant to the ILVA, by the proposed Phase 1 roll-out, CrownBet agreed to provide the Club with the equipment and services that I describe below, to be installed at a particular location within the Club described in the ILVA as the “CrownBet Advertising Zone”.

6. [6]

   CrownBet seeks a declaration that the provision by it of this equipment and these services and certain other related matters, “would not” contravene various sections of the Unlawful Gambling Act 1998 (NSW).

7. [7]

   No other club has yet entered an ILVA with CrownBet. By the Master Services Agreement, CrownBet and ClubsNSW have agreed to a “standard form ILVA” which participating clubs may enter. There are six such “standard forms”. Those forms cater for three sizes of clubs (small, medium and large) and, for each such sized club, for clubs in a “Standalone” category (that is, having no retail wagering facility using cash or a TAB account) or in a “Co-Existence” category (that is, having such a facility alongside the proposed CrownBet facility).

8. [8]

   Despite ClubsNSW’s endorsement of the CrownBet proposal, member clubs are not obliged to enter an ILVA with CrownBet and, if they do, may appoint any other wagering operator.

9. [9]

   Liquor & Gaming NSW is the agency responsible in NSW for the regulation of wagering.

10. [10]

    On 13 April 2017, the Deputy Secretary, Liquor, Gaming and Racing from the Department of Industry, wrote to CrownBet and ClubsNSW:

11. [11]

    In order that Liquor & Gaming NSW be given an opportunity to be heard, CrownBet joined the State of NSW as a defendant to these proceedings.

12. [12]

    The State has, however, entered a submitting appearance. Thus, despite the Deputy Secretary’s letter of 13 April 2017, the regulator has not sought to be heard.

13. [13]

    CrownBet also joined ClubsNSW and the Club as defendants. Each has also entered a submitting appearance.

14. [14]

    The remaining defendant, TAB Ltd, holds a licence under the Totalizator Act 1997 (NSW) to offer off-course totalizator and fixed odds wagering in NSW. That licence is for a period of 99 years commencing on 6 March 1998 and expiring on 5 March 2097. The licence is exclusive until 23 June 2033.

15. [15]

    TAB’s retail network includes TAB owned outlets as well as, relevantly, agency outlets within certain licensed venues, such as the Club.

16. [16]

    TAB had a presence within the Club until 30 June 2017. That presence comprised an area dedicated to TAB off-course wagering facilities, together with multiple screens showing racing and other events and TAB betting odds, and benches and stools from which members could view the screens and complete betting slips and the like.

17. [17]

    On 28 April 2017, the day after it entered the ILVA, the Club notified TAB that it wished to terminate these arrangements. The TAB wagering facilities were removed from the Club on or about 29 June 2017; two days before the ILVA was due to commence.

18. [18]

    Before me, only TAB played the role of contradictor.

19. [19]

    TAB is not a disinterested contradictor. It has an obvious interest of protecting its position as a wagering agency outlet within licensed venues such as the Club. As I discuss below, it has made public statements to the effect that the arrangements CrownBet proposes are likely to be unlawful.

20. [20]

    Finally, by way of introduction, it is important to emphasise what this case is not about. This judgment does not concern the social utility or desirability of gambling, or of encouraging people to gamble.

21. [21]

    It is about whether the Court should make a declaration that future conduct on the part of CrownBet and the Club would not contravene the relevant provisions of the Unlawful Gambling Act, as those provisions should be properly construed.

Decision

1. [22]

   The conclusion to which I have come is that I should not make the declaration sought.

The declaration sought

1. [23]

   Although the declaratory relief referred to in the Amended Summons was expressed more widely, as developed in final submissions, the declaration sought by CrownBet was:

Jurisdiction to make the declaration sought

1. [24]

   This Court has inherent power to grant declaratory relief.

2. [25]

   The prerequisites for such relief were summarised by the High Court of Australia in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 as follows:

3. [26]

   The Court has discretion to withhold relief. Thus in Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136, the Privy Council said at 1155:

4. [27]

   The circumstances where a court would be inclined to refuse declaratory relief include where to grant relief would have no practical utility and would not finally resolve a justiciable controversy (see, for example, Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [45]).

5. [28]

   The Court has jurisdiction to grant a declaration that proposed conduct is not unlawful.

6. [29]

   Thus, in Commonwealth of Australia v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297, Barwick CJ said (at 305):

7. [30]

   However, the Court will only grant such relief in exceptional circumstances.

8. [31]

   Thus, in Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84; WASC 229 Martin CJ said at [18]-[20]:

9. [32]

   My attention has been drawn to only a small number of cases where a court has been persuaded to make a declaration as to the criminality of proposed conduct.

10. [33]

    In Brightwater, Martin CJ was persuaded to make a declaration that a quadriplegic in residential care had the right to determine whether or not he would continue to receive the services and treatment provided by the entity conducting the residential care facility in which he resided and that the entity would act unlawfully by continuing to provide treatment contrary to his wishes (at [23]-[31] and [32]).

11. [34]

    In Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013; 72 NSWLR 577, Palmer J was persuaded to make a declaration that amendments made to the Racing Administration Act 1998 (NSW) did not oblige a bookmaker, as it presently conducted its business, to pay a particular fee.

12. [35]

    His Honour said (at [74]):

13. [36]

    His Honour found that the facts before him were “clear and undisputed.” That is unsurprising, as those facts concerned the manner in which the bookmaker in question was then conducting its business. The future conduct under consideration was the continued operation of the business in that fashion.

14. [37]

    Unlike this case, the active contradictor before Palmer J was Racing NSW, a body corporate established under the Thoroughbred Racing Act 1996 (NSW) to supervise and regulate horse racing in NSW. It was, in effect, the regulator.

15. [38]

    I see this case as being quite different from those two cases.

The legislative context

1. [39]

   In NSW, gambling is regulated, relevantly to this case, by the Unlawful Gambling Act, the Totalizator Act, and the Betting and Racing Act 1998 (NSW).

2. [40]

   CrownBet is not a “licensed bookmaker” for the purposes of the Unlawful Gambling Act or the Betting and Racing Act because it is not authorised by Liquor & Gaming NSW to carrying on bookmaking in NSW.

3. [41]

   However, CrownBet is a “licensed betting service provider” for the purpose of the Betting and Racing Act because it is the holder of a licence under the NT Racing and Betting Act (s 4 of the Betting and Racing Act).

4. [42]

   CrownBet is also, and for the same reason, a “legal bookmaker” for the purposes of the Unlawful Gambling Act (s 8(4)).

5. [43]

   Because CrownBet is a “licensed betting service provider” it is exempt from prohibitions in ss 29 and 30 of the Betting and Racing Act against:

6. [44]

   Further, because CrownBet is a “licensed betting service provider” a party, such as the Club, is exempt from the prohibition contained in s 31 of the Betting and Racing Act against using premises for the purposes of publishing betting information or any advertisement relating to any betting services.

7. [45]

   Further, by reason of ss 8(3) and (4) and s 8(6)(d1) of the Unlawful Gambling Act, and because CrownBet is authorised by NT law to conduct bookmaking activities, punters are exempt from the prohibition contained in s 8(3) of the Unlawful Gambling Act against placing a bet with CrownBet by telephone or electronically by means of the internet, subscription TV or other online communication systems.

8. [46]

   Wagering by telephone with CrownBet (or indeed any other licensed betting service provider) is lawful wherever a punter is situated.

The equipment and services to be provided

1. [47]

   The equipment and services to be provided by CrownBet to the Club in Phase 1 are set out in items 1A and 2A of schedule 1 to the ILVA.

2. [48]

   In summary, it is proposed that CrownBet will install within what is described in the ILVA as the “CrownBet Advertising Zone”:

3. [49]

   In the ILVA, the CrownBet Advertising Zone is described as a “wagering area”. The Zone is proposed to be set up in a dedicated space within the Club. The concept designs in evidence suggest that what is planned is that the Zone will comprise a wall on which the panel of nine television screens will be displayed together with a bench on which the touch screens and the mobile phone chargers will be located and adjacent to which will be stools, or perhaps lounges, facing the video wall. The Zone will feature, prominently, the CrownBet logo and getup.

4. [50]

   However, as CrownBet has emphasised, none of the equipment it proposes to install will accept wagers or in any way allow wagers to be placed. Nor will the equipment allow a wagering account to be opened or allow a deposit or withdrawal of funds into or from a wagering account. To wager with CrownBet from the proposed CrownBet Advertising Zone, or to open a wagering account or deposit or withdraw funds into or from an account, Club patrons will need to use their personal devices, such as their mobile telephones.

5. [51]

   Under proposed Phase 1, CrownBet will also provide to the Club (and its members) the following services:

The relevant sections of the Unlawful Gambling Act

1. [52]

   Section 9 of the Unlawful Gambling Act provides that:

2. [53]

   It is common ground that the proscription in s 9 is against carrying on bookmaking in NSW.

3. [54]

   It is also common ground that CrownBet is not a “licensed bookmaker” in NSW (see [40] above).

4. [55]

   Thus, what CrownBet seeks is a declaration that, by engaging in the conduct to which I have referred, it would not be carrying on bookmaking in NSW.

5. [56]

   Section 11(1) of the Unlawful Gambling Act provides:

6. [57]

   It is common ground that this is a derivative offence, in that its contravention would follow from a contravention of, for instance, s 9, and that neither CrownBet nor the Club would contravene this section unless they also contravened one of the other specified sections.

Section 11A

1. [58]

   Section 11A(1) of the Unlawful Gambling Act provides:

2. [59]

   It is common ground that the Club is a “public place” for the purposes of s 11A(1).

3. [60]

   Section 11A(3) defines “remote access betting facility” as:

4. [61]

   Thus, CrownBet seeks a declaration that, if CrownBet were to make available the equipment and services to which I have referred, neither it nor the Club would be making available within the Club a “device” that is for use primarily or exclusively for betting on an event or contingency or facilitating such betting.

5. [62]

   Section 15(1) of the Unlawful Gambling Act provides, relevantly, that:

6. [63]

   Section 6(1)(b) defines a “prohibited gaming device” as, relevantly, a device that:

7. [64]

   CrownBet thus seeks a declaration that implementation of Phase 1 would not involve either it or the Club permitting the use of a “device” which is either designed or used for the purpose of gambling.

8. [65]

   Section 31 of the Unlawful Gambling Act provides:

9. [66]

   Section 32 creates a similar offence for the “operator” of premises. Section 33 makes it an offence to organise, or conduct, or assist in organising or conducting “gambling premises”.

10. [67]

    The expression “gambling premises” is defined in s 4 as, relevantly, premises that are:

11. [68]

    CrownBet thus seeks a declaration that implementation of Phase 1 would not have the effect of rendering the Club, or at least that part of the Club at which the CrownBet Advertising Zone is to be located, as “gambling premises”; that is, premises used for or in connection with bookmaking to be carried out by CrownBet (which, as I have mentioned, is not a “licensed bookmaker” for the purposes of the relevant legislation).

12. [69]

    I have heard detailed submissions from both CrownBet, and TAB as to whether implementation of Phase 1 would cause CrownBet or the Club (or both) to contravene any one or more of these sections.

13. [70]

    Those arguments were put with great skill and accounted for a good deal of the hearing time before me.

14. [71]

    However, as my conclusion is that, as a matter of discretion, I should not make the declaration sought, it is not appropriate for me to express an opinion as to the merits of those arguments.

The reasons advanced by CrownBet as to the why the declaration should be made

1. [72]

   CrownBet submitted that I should exercise the Court’s jurisdiction to declare that the implementation of Phase 1 would not involve either it or the Club contravening the relevant sections of the Unlawful Gambling Act to resolve what it describes as the “present state of uncertainty” about that question.

2. [73]

   That state of uncertainty is said to arise from two matters.

3. [74]

   The first is statements that TAB’s parent company, Tabcorp Holdings Ltd, has made to ClubsNSW, and to some other clubs, directly to the effect that CrownBet’s proposals are unlawful.

4. [75]

   Thus, for example, on 14 February 2017, Tabcorp wrote to ClubsNSW as follows:

5. [76]

   Similarly, on 24 February 2017, Tabcorp sent a letter to clubs as follows:

6. [77]

   The second is that the regulator, Liquor & Gaming NSW, “despite months of consultations” “did not confirm its position, one way or the other, as to whether the arrangements were lawful”.

7. [78]

   As I have mentioned, although on 13 April 2017 Liquor & Gaming NSW said that it wished to be heard on this application it has, through the State, entered a submitting appearance (see [11] and [12] above).

8. [79]

   CrownBet drew attention to a letter it had sent to the Deputy Secretary, Liquor, Gaming and Racing on 28 June 2017 as follows:

9. [80]

   The letter continued:

10. [81]

    I caused my Associate to enquire of the parties whether it was common ground that Liquor & Gaming NSW’s “Compliance and Enforcement Policy” and stated “Strategic Approach” were, at the relevant time, as set out in this letter. Curiously, CrownBet’s solicitor informed my Associate that this was not common ground between the parties. I think it hardly likely that CrownBet would make assertions to Liquor & Gaming NSW as to the content of its published policy and strategic approach which did not accurately reflect what that policy and strategic approach was. It was not suggested to me that CrownBet had, in its letter, misstated the position. There is no evidence before me of any dispute raised by Liquor & Gaming NSW about this aspect of CrownBet’s letter. In those circumstances, I propose to proceed on the basis that CrownBet did not misstate the position and that Liquor & Gaming NSW’s policy and strategic approach included the matters stated in CrownBet’s letter.

11. [82]

    CrownBet contended that “this state of uncertainty prejudices CrownBet’s ability to attract clubs”.

12. [83]

    Thus, Mr Nicholas Tyshing, the Chief Operating Officer of CrownBet, gave this evidence:

13. [84]

    In submissions, CrownBet put the matter this way:

14. [85]

    CrownBet’s reference to the “interests of all Clubs in New South Wales” reflects its position that these proceedings should be seen as a “test case”. As I have mentioned, so far only the Club has entered into an ILVA with CrownBet.

15. [86]

    However, it is clear from the terms of the Master Services Agreement that CrownBet proposes to enter similar ILVAs with as many of ClubsNSW’s member clubs as possible.

Exceptional circumstances not established

1. [87]

   I see the dilemma facing CrownBet and the Club (see [84]). However, that dilemma is of their own making and the result of their decision to enter the ILVA despite not having obtained clearance from the regulator.

2. [88]

   There is much at stake here for CrownBet, the Club (which has already committed itself to the ILVA and, for that reason, I would infer, terminated its relationship with TAB), and for those other clubs that may be contemplating entering into similar arrangements.

3. [89]

   From the point of view of CrownBet and the Club, it is, no doubt, “undesirable” that, absent regulatory guidance, and in the context of Tabcorp’s commercially hostile response, those parties run the risk that CrownBet’s “Offering” is unlawful and may render one or both liable to prosecution.

4. [90]

   However the conclusion to which I have come is that, in the circumstances which CrownBet and the Club now find themselves, this is a risk they will have to run, if they are determined to proceed.

5. [91]

   For this reason, and those that follow, I am not persuaded that these matters amount to “exceptional circumstances” such as to warrant the Court granting CrownBet the declaration it seeks.

6. [92]

   CrownBet seeks a declaration that each of the following matters “would not” contravene the identified sections of the Unlawful Gambling Act:

7. [93]

   CrownBet submits that it has disclosed “in minute detail”, the specifics of its arrangements with the Club.

8. [94]

   It is true that, in evidence, CrownBet has to a very large extent identified the facts and circumstances that will pertain to the Club once Phase 1 is rolled-out.

9. [95]

   But the declaration does not, on its face, disclose that “minute detail”.

10. [96]

    The declaration identifies the equipment and services to be provided (namely that specified in items 1A and 2A of schedule 1 to the ILVA).

11. [97]

    But the declaration does not specify what is to be the “operation” of the CrownBet Advertising Zone in respect of that equipment and services “in accordance with” the ILVA and does not specify what “related obligations” of the club under the ILVA, the “performance” of which would not contravene the Unlawful Gambling Act.

12. [98]

    CrownBet’s position appears to be that the “operation” and those “related obligations” are to be determined by reference to the ILVA as a whole.

13. [99]

    Thus, it was submitted on behalf of CrownBet:

14. [100]

    The reference in that submission to “our obligation to do something is expressly subject to it being lawful to do so” was evidently a reference to clauses such as 5.1 of the ILVA , which is in the following terms:

15. [101]

    “Applicable laws” is defined with effect to include the Unlawful Gambling Act.

16. [102]

    The question is addressed more comprehensively in cl 15.1 of the ILVA which is in the following terms:

17. [103]

    Thus the obligations of CrownBet and the Club under the ILVA are, in substance, conditional upon those arrangements complying with, amongst other laws, the Unlawful Gambling Act.

18. [104]

    In substance the agreement is that, relevantly, the CrownBet Advertising Zone must be “operated” in a manner that complies with the Unlawful Gambling Act and the Club must perform its “obligations” under the ILVA (including in relation to the “operation” of the CrownBet Advertising Zone) in a manner that complies with the Unlawful Gambling Act.

19. [105]

    Thus, what is sought is a declaration that performance of obligations under a contract, under which performance is conditional upon compliance with the Unlawful Gambling Act, would comply with the Unlawful Gambling Act.

20. [106]

    As was submitted on behalf of TAB, that assumes what must be proved and thus lacks utility.

21. [107]

    CrownBet and the Club have entered into a commercial arrangement which they must have considered to be in their financial interests (and, in the case of the Club, in the interests of its members).

22. [108]

    CrownBet is very well represented and has, before me, offered confident submissions to the effect that it is clear that the roll-out of Phase 1 will not contravene any of the nominated sections of the Unlawful Gambling Act. According to those submissions, there is no uncertainty about CrownBet’s position; nor that of the Club. If those submissions are correct, neither CrownBet nor the Club has any reason to be concerned about the lawfulness of the proposed conduct.

23. [109]

    In CrownBet’s letter of 28 June 2017 to the Deputy Secretary, to which I have already referred, CrownBet refers to having shared with Liquor & Gaming NSW the “advice it received from Senior Counsel regarding the CrownBet Offering” and stated that it had received “clear advice supporting the legality of the CrownBet Offering”.

24. [110]

    The mere fact that this is a proposed commercial arrangement is not of itself a reason to decline to make the declaration sought.

25. [111]

    But here, it is clear that the commercial arrangement is one that has been entered into by well-resourced parties after careful consideration of its potential unlawfulness (and, presumably, its potential financial reward) and on the basis of legal advice of the highest quality. The Court should, in my opinion, be cautious about making a declaration as to the lawfulness of such an arrangement in those circumstances.

26. [112]

    Further, the parties have made specific provision in cl 15.1 of the ILVA (set out at [102] above) for the possibility that what is contemplated by the ILVA, including Phase 1, may not comply with the Unlawful Gambling Act.

27. [113]

    CrownBet has approached the relevant “Regulatory Authority” (Liquor & Gaming NSW).

28. [114]

    That Regulatory Authority has not (at least yet) provided:

29. [115]

    It may be, in that circumstance, CrownBet is already “released of its obligations” to provide the relevant services and equipment by reason of cl 15.1(d)(i).

30. [116]

    However that may be, the point is that the ILVA makes specific provision for the possibility that regulatory approval will not be forthcoming.

31. [117]

    Further, cl 15.3 of the ILVA provides:

32. [118]

    The parties have thus made provision, in terms, for the possibility that an “applicable law” might prevent the implementation of the ILVA. In effect, the parties have agreed on a right of termination if that matter cannot be resolved.

33. [119]

    Thus, in substance, CrownBet and the Club have reached what I would infer to be a mutually satisfactory means by which to deal with the possibility that the proposal is unlawful.

34. [120]

    In substance, if the proposal is unlawful, neither will be obliged to proceed.

35. [121]

    I see that as a further reason not to make the declaration sought.

36. [122]

    A further reason is that the declaration is sought in the context of an industry that is regulated.

37. [123]

    According to CrownBet’s letter of 28 June 2017 (set out at [79] - [80] above and which, for the reasons set out at [81] I am assuming to be accurate), the regulator, Liquor & Gaming NSW, has a declared policy of “providing guidance to stakeholders on our regulatory position”, including any “novel or complex matters” and so as to encourage the industry to “manage its regulatory risk” and assist “stakeholders making an informed decision”. According to Liquor & Gaming NSW’s published “Strategic Approach” it aims to provide “timely and authoritative information and guidance”.

38. [124]

    CrownBet’s letter also asserted that Liquor & Gaming NSW had in February 2017 “commenced a review of the CrownBet Offering” and had stated it would “express a view on the legality of the CrownBet Offering”. Again, absent a suggestion to the contrary, I see no reason to doubt that these statements are accurate. Evidently, for reasons not disclosed to the Court, Liquor & Gaming NSW has decided not to express any view on the subject.

39. [125]

    Consistent with its stated policy, prior to the commencement of these proceedings, Liquor & Gaming NSW stated that it wished to be heard. And yet it has chosen not to be heard.

40. [126]

    The result is that I do not have the benefit of submissions from the regulator: a disinterested contradictor. In effect, the role of giving the “guidance” to “stakeholders”, that Liquor & Gaming NSW states to be its policy, is left to the Court.

41. [127]

    CrownBet submitted that the fact that Liquor & Gaming NSW had chosen to express no view to the Court about the lawfulness of CrownBet’s “Offering” was a compelling reason for the Court to make the declaration sought. On reflection, the conclusion to which I have come is that the better view is the one which CrownBet itself expressed to Liquor & Gaming NSW in its letter of 28 June 2017 in which it said:

42. [128]

    The fact that there is a regulator in this industry which has the policies I have described and that has been approached by the parties for guidance and that, for reasons unexplained, has not given that guidance points, strongly in my opinion, to the inappropriateness of the Court intervening.

43. [129]

    Further, the declaration sought is that the proposed conduct “would not” contravene the nominated sections of the Unlawful Gambling Act. CrownBet accepted that, in order to come to that conclusion, I would have to be actually persuaded that the proposed conduct (assuming it could be sufficiently identified) would not contravene those provisions (as those provisions should properly be construed).

44. [130]

    As Martin CJ emphasised in Brightwater (see [31] above), a sound reason for not making a declaration as to the criminality of future conduct is that the question of whether conduct is criminal may depend, perhaps critically, upon a range of precise facts and circumstances which cannot always be accurately predicted.

45. [131]

    As I have said, CrownBet has, to a very large extent, provided detail of the proposed Phase 1 roll-out.

46. [132]

    However, there is no statement of agreed facts and there is at least a possibility that, in some respects, the question of whether there would be a contravention of any one of the sections of the Unlawful Gambling Act might depend upon the particular circumstances at the Club (or indeed, at other clubs, assuming this should be seen as a test case).

47. [133]

    One example is whether the contribution by CrownBet to the Wi-Fi service at the Club might amount to the making available (by the Club) of a “device” (being the “device” that causes the Wi-Fi to operate) for use primarily or exclusively to facilitate betting, for the purposes of s 11A of the Unlawful Gambling Act.

48. [134]

    The evidence before me is that, at the Club, there is already a Wi-Fi service which operates throughout the Club. What is proposed is that that service be rebadged as a “CrownBet” service but that, otherwise, it continue to operate as it did prior to the Club entering into the ILVA.

49. [135]

    But the manner in which the Club announces to its members the continued operation of the (now rebadged) Wi-Fi service might be relevant to whether a contravention of s 11A has occurred.

50. [136]

    And so far as this is said to be a “test case”, the position may also be different at a different club, if that club established a Wi-Fi service only when the CrownBet Advertising Zone was established or which only operated within that Zone, for example.

51. [137]

    Another example is whether the provision by CrownBet of a mobile phone charging station would constitute the making available of a device for use primarily or exclusively to facilitate betting. The ILVA does not specify where the mobile charging station is to be installed. It simply states that CrownBet will make one available to the Club. The precise location of the charging station may be relevant to the question of whether there is a contravention of s 11A. Location of the device in a bench where Club members can eat, drink and watch events and access odds (rather than, say, on the floor in the corner of the CrownBet Advertising Zone) may well be relevant to whether there is such a contravention.

52. [138]

    This is a further factor tending against the making of the declaration.

53. [139]

    The declaration sought by CrownBet concerns only Phase 1 of the roll-out proposed under the ILVA.

54. [140]

    The ILVA also contemplates a Phase 1.1 pursuant to which further equipment (external signage) and further operational services (described as “Draftstars Live Events” and “CrownBet Rewards Integration”) will be provided.

55. [141]

    CrownBet’s obligation overall under the ILVA is to provide the “Services” (defined to mean the services necessary to “offer the Digital Wagering Advertising Solution”) to the Club as set out in the whole of schedule 1 to the ILVA (that is, including Phase 1.1 as well as Phase 1).

56. [142]

    CrownBet submitted that the declaration, confined as it is to Phase 1 “does reflect the scope of what CrownBet [and the Club] have contracted, at this stage, to do”.

57. [143]

    CrownBet’s submission continued:

58. [144]

    In my opinion, this understates the position somewhat. CrownBet’s obligation to provide its “Offering” is expressed in the ILVA to be subject to “any Regulatory Requirements and Applicable Laws” (see cl 5.1). But, subject to that, CrownBet is obliged to provide the Club with all of the services set forth in schedule 1 (that is, Phase 1 as well as Phase 1.1).

59. [145]

    Further, in the Master Services Agreement, CrownBet has agreed with ClubsNSW that its intention is that all participating clubs will have their “roll-out” completed within three years of the date of the Master Services Agreement; that is, by 20 December 2019.

60. [146]

    The expression “roll-out” is stated to be the “installation of all Equipment”.

61. [147]

    “Equipment” is defined to mean:

62. [148]

    By cl 7.2(c) of the Master Services Agreement, CrownBet agreed to use its best endeavours to roll-out 26 “large Participating Licensed Venues”, 96 “medium Participating Licensed Venues” and 369 “small Participating Licensed Venues” by 20 December 2018.

63. [149]

    Thus, CrownBet is only seeking declaratory relief in respect of part of its proposed roll-out with the Club and clubs generally.

64. [150]

    In this way, and as TAB submitted, “the contract does not mirror the modesty of the declaration and it must be performed according to its terms”.

65. [151]

    This is a further factor which points against the utility of making the declaration.

66. [152]

    As I have mentioned (see [7] above) the Master Services Agreement contemplates six forms of “Template Individual Licensed Agreements”.

67. [153]

    The ILVA between the Club and CrownBet is in the “small/standalone” category.

68. [154]

    The forms of ILVA designed for “medium” and “large” clubs contemplate that, in addition a Phase 1 and Phase 1.1, there will be a “Phase 2”, pursuant to which, “additional equipment and related advertising services” will be rolled-out.

69. [155]

    As with Phase 1 in the ILVA, the roll-out of Phase 2 in these agreements is said to be “following consultation with each applicable Regulatory Authority” and subject to CrownBet’s satisfaction that the installation of such equipment would comply with “Applicable Laws and Regulatory Requirements”.

70. [156]

    The equipment proposed to be rolled-out under Phase 2 includes something called a “Multi-Purpose Terminal” and a “Sign-Up Station”.

71. [157]

    As the declaration is only sought in respect of Phase 1 of the CrownBet/Club ILVA, and as the ILVAs proposed for many other clubs will roll-out more extensive equipment and services, the extent to which it can be said that this is a “test case” is diminished.

72. [158]

    I find this a further factor pointing to the lack of utility in making the declaration.

73. [159]

    Finally, I will deal with the matter that TAB emphasised, but which in my view does not weigh heavily in the exercise of discretion to make the declaration.

74. [160]

    TAB submitted that a reason to refuse to make the declaration is that there may be some misapprehension as to its effect.

75. [161]

    In that regard, TAB drew attention to statements made by ClubsNSW and by the Club which might suggest that those parties apprehend that the declaration, if made, would have wider significance than in fact would be the case.

76. [162]

    Had I been persuaded to make the declaration, I would have set out the reasons the basis upon which I came to that conclusion.

77. [163]

    I would expect that any party seeking to conduct itself on the basis of the making of the proposed declaration, or of commenting on the fact and the significance of the making of the declaration, would give careful attention to the reasons given.

Conclusion

1. [164]

   The amended summons should be dismissed.

2. [165]

   I will hear argument as to costs.