Cutler v Wandsworth Stadium Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Simonds,Lord du Parcq,Lord Normand,Lord Morton of Henryton,Lord Reid
Judgment Date28 Feb 1949
Judgment citation (vLex)[1949] UKHL J0228-2

[1949] UKHL J0228-2

House of Lords

Lord Simonds

Lord du Parcq

Lord Normand

Lord Morton of Henryton

Lord Reid

Cutler
and
Wandsworth Stadium Ltd. (in Liquidation)

Upon Report from the Appellate Committee, to whom was referred the Cause Cutler against Wandsworth Stadium Limited (in liquidation), that the Committee had heard Counsel for the Appellant as well on Monday the 24th, as on Tuesday the 25th and Wednesday the 26th, days of January last, upon the Petition and Appeal of Alfred Cutler, of 43 Paramount Court, London, W.C., in the County of London, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 1st of December 1947, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Wandsworth Stadium Limited (in liquidation), lodged in answer to the said Appeal; and Counsel appearing for the Respondents, but not being called upon; and due consideration being had this day of what was offered for the said Appellant:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled. That the said Order of His Majesty's Court of Appeal, of the 1st day of December 1947, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Simonds

My Lords,

1

This appeal, which is brought from an Order of the Court of Appeal setting aside a judgment given by Mr. Justice Oliver in favour of the Appellant, can be determined upon a preliminary point, and your Lordships need not be troubled by a detailed narration of the facts which occupied the time of the learned trial Judge for many days.

2

The single question, which your Lordships decide, is whether upon the true construction of the Betting and Lotteries Act, 1934, the Appellant has, upon the assumption, which for this purpose I make, that the Respondents have committed a breach of section 11 (2) ( b) of the Act, a right of civil action against them. This question was answered in the affirmative by Mr. Justice Oliver, in the negative by the Court of Appeal.

3

The Appellant is a bookmaker, who, before the proceedings which gave rise to this appeal, carried on the business of bookmaking on a part of a greyhound racing track known as the Wandsworth Stadium which is occupied by the Respondents. I do not think it necessary to state any further details about the track or the manner in which the Appellant and his fellow bookmakers carried on their business. For I am content to assume, without expressing any opinion about it, that the Respondents have committed a breach of their statutory obligations.

4

Before the passing of the Act betting by means of the "totalisator" (a mechanical application of the pari-mutuel) on dog-racing tracks was illegal and betting on such tracks was carried on by the public with bookmakers only. Thus bookmakers, though they had no absolute right of entry on any such tracks, had a monopoly of betting on the track if they were not excluded, and they were not likely to be excluded. It was otherwise with horse racecourses. For by the Racecourse Betting Act, 1928. the use of totalisators on such courses had already been legalised.

5

It was in these circumstances that the Act of 1934 was passed. Its full title may be recalled, "An Act to amend the law with respect to betting on tracks where sporting events take place, including the law with respect to totalisators on horse racecourses: to authorise, subject to restrictions, the establishment of totalisators on dog racecourses: to prohibit betting on tracks with young persons and pari mutuel betting except by authorised totalisators: to amend the law with respect to lotteries and certain prize competitions; and for purposes connected with the matters aforesaid".

6

It is, as its title suggests, an Act which in various respects regulates the conduct of racecourses and in particular authorises or restricts, as the case may be, the means and methods of betting on such courses. There is nothing in it to suggest that it is the charter of bookmakers.

7

Part I of the Act which is headed "Betting" consists of the first twenty sections. By section 1 the number of days in any year upon which betting by way of bookmaking or by means of a totalisator may take place on any track is limited. Contravention of this section is an offence under the Act. By section 2 it is provided that bookmaking shall not be carried on on any track unless the occupier of the track is the holder of a licence in force under that part of the Act authorising the provision of betting facilities on that track. To this section there are certain provisoes which I need not mention. Here too contravention is an offence under the Act. By section 3 it is provided that no pari-mutuel or pool betting business shall be carried on on any track except as therein provided. Again contravention is an offence under the Act. Section 4 prescribes the number of races and the period of hours upon and in which betting by way of bookmaking or by means of a totalisator may take place. Once more contravention is an offence.

8

I can pass over the other sections and come to section 11, and, as it is the section upon which the Appellant founds his claim, I will state it in full:

"11.—(1) Notwithstanding any enactment or rule of law to the contrary, it shall be lawful on any licensed track being a dog racecourse for the occupier of the track or any person authorised by him in writing—

( a) to set up and keep a totalisator, whether in a building or not; and

( b) on any appointed day, while the public are admitted to the track for the purpose of attending dog races and no other sporting events are taking place on the track, to operate a totalisator so set up, but only for effecting with persons resorting to the track betting transactions on dog races run on that track on that day;

and for any person to effect betting transactions by means of a totalisator lawfully operated.

(2) The occupier of a licensed track—

( a) shall not, so long as a totalisator is being lawfully operated on the track, exclude any person from the track by reason only that he proposes to carry on bookmaking on the track; and

( b) shall take such steps as are necessary to secure that, so long as a totalisator is being lawfully operated on the track, there is available for bookmakers space on the track where they can conveniently carry on bookmaking in connection with dog races run on the track on that day;

and every person who contravenes, or fails to comply with, any of the provisions of this subsection shall be guilty of an offence."

9

Section 12 enacts (with certain provisoes) that nothing in the Betting Act, 1853, shall apply to anything done on any licensed track by a bookmaker on any day on which bookmaking may be lawfully carried on on that track, and section 13 prescribes the maximum charges for admission that may be made by the occupier of a licensed track to a bookmaker or his assistant. Section 14 prohibits the occupier of a licensed track and the other persons therein mentioned from engaging directly or indirectly in bookmaking on that track. Contravention is made an offence under the Act. Section 16 enables the licensing authority to revoke a licence in respect of a track in its area ( inter alia) if the holder of the licence, or, where the holder is a corporate body, any director or the manager thereof, is convicted of any offence under Part I of the Act or under the First Schedule to the Act or of any offence involving fraud or dishonesty. By section 17 it is provided that nothing in that part of the Act shall be construed as requiring the occupier of a licensed track to permit betting thereon at any time at which no totalisator is being operated on that track. Section 18 deals with the powers of the Racecourse Betting Control Board under the Racecourse Betting Act, 1928, and is not strictly germane to these proceedings. Section 20 includes a number of definitions, including a very wide definition of "bookmaker". That ends Part 1. I need not refer to Part II. Part III contains the penalty clauses which are as follows:

"29. Where a person convicted of an offence under this Act is a body corporate, every person who at the date of the commission of the offence was a director or officer of the body corporate shall also be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge.

30.—(1) A person guilty of an offence under section one, section two, section three or section eleven, or under any section contained in Part II, of this Act shall be liable—

"( a) on summary conviction, to a fine not exceeding one hundred pounds, and in the case of a second or any subsequent conviction for an offence under the same section, to imprisonment for a term not exceeding three months or to a fine not exceeding two hundred pounds or to both such imprisonment and such fine; or

"( b) on conviction on indictment, to a fine not exceeding five hundred pounds, and in the case of a second or any subsequent conviction for an offence under the same section, to imprisonment for a term not exceeding one year or to a fine not exceeding seven hundred and fifty pounds or to both such imprisoment and such fine."

10

As I have already indicated, the question on this appeal arises on...

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  • Misfeasance in public office: a very peculiar tort.
    • Australia
    • Melbourne University Law Review Vol. 35 Nbr. 1, April 2011
    • 1 April 2011
    ...CJ); Pasmore v Oswaldtwistle Urban District Council [1898] AC 387, 394 (Earl of Halsbury LC). (187) See Cutler v Wandsworth Stadium Ltd [1949] AC 398, 408 (Lord Simonds); Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, 405-6 (Kitto J); Gardiner v Victoria [1999] 2 VR 461, 469 [25] (Phillips ......

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