Last week, the Gaming Technologies Association called on Nick Xenophon’s SA-Best Party to withdraw its gaming policy after a recent decision in the Federal Court rejected two of the key claims underlying Mr Xenophon’s policy.
In the policy announcement Nick Xenophon committed SA-Best to:
“Making [poker] machines ‘con-free’ by removing misleading and deceptive features such as near misses and ‘losses disguised as wins’.”i
Mr Xenophon further claimed that this policy would ensure that Consumers are “protected” and can make “fully informed choices with relevant information”.ii
On 2 February 2018, the Federal Court of Australia completely dismissed claims of misleading and deceptive conduct and also unconscionable conduct against Crown Melbourne and Aristocrat Leisure. The ruling confirmed that Australia’s poker machines operate under a robust regulatory regime and can be enjoyed with confidence.
CEO of the Gaming Technologies Association, Ross Ferrar, said: “Our industry has been subjected to stringent legal scrutiny and has passed with flying colours.”
“However, opponents of our industry continue to rely on the very same claims that were rejected by the Federal Court. The truth is that every poker machine in operation in Australia is subject to stringent legislation, regulatory review and oversight, including in South Australia.
“Justice Mortimer conducted an open and lengthy legal process in the Federal Court and ultimately the claims made about poker machine design were emphatically rejected. I would urge Mr Xenophon to respect the findings of the Federal Court and amend his policy and withdraw his comments.”
Judgement Summary – Guy v Crown Melbourne Ltd (No2)  FCA 36
On 2 February 2018 Justice Debra Mortimer of the Federal Court of Australia handed down her judgement in this matter. The Applicant was a member of the public named Shonica Guy. The Respondents were Crown Melbourne Ltd and Aristocrat Technologies Australia. The Applicant’s case centred on the popular gaming machine manufactured by Aristocrat Dolphin Treasure. Justice Mortimer’s judgement was that the Application be dismissed in its entirety.
On the issue of “losses disguised as wins” Justice Mortimer concluded…
“…information about the amount bet and the amount won is already displayed to the gambler and allows the gambler to see easily whether her or his ‘win’ is a net win or a net loss. There is no ‘concealment’ of any of these features from the gambler.”iii
On the issue of “celebratory feedback”iv Justice Mortimer concluded…
“…the sounds associated with a win on the Dolphin Treasure EGM are chosen to align with the length of time an amount won by the player takes to increment on the ‘win meter’ of the Dolphin Treasure EGM. Contrary to being unfair, or deceptive, or exploitative, a correlation such as this…is a way of allowing a gambler to measure the size of the win – whether or not it is more or less than the bet.”v
On the issue of the alleged “oversized reel feature” Justice Mortimer concluded…
“There is no evidence from which it could be inferred that these perceptions would lead a gambler to turn his or her mind at all to how many ‘stopping points’ exist on each reel, and how this might affect the probabilities of a winning line occurring.”vi
On the issue of “dispersed symbols image” Justice Mortimer concluded…
“No basis in the evidence has been provided for an inference that such a [hypothetical] gambler would be looking at the distribution of the symbols for the purposes of understanding her or his odds of securing a winning line.”vii
On the issue of “return to player” Justice Mortimer concluded…
“Whether by actually gambling on the EGM and experiencing outcomes, or accessing the available information, any confusion or initial impression engendered by the RTP representation would be quickly dispelled. For that reason, I do not consider the Risk representation is misleading within the meaning of that term in s 18 of the ACL [Australian Consumer Law].”viii
On the issue of “near misses” Justice Mortimer concluded…
“…the applicant’s submissions about near misses cannot be accepted.”ix
On the Applicant’s case Justice Mortimer concludes…
“I have concluded that none of the applicant’s causes of action are made out.”x
The GTA provided an itemised list of claims and rebuttals:
i 19 February 2018, Media release: “SA-Best Gambling Reform policies will dramatically reduce pokies addiction and community harm”, SA-Best, link.
ii Policy Document: “Gambling Reform”, SA-Best, Link
iii Guy v Crown Melbourne Limited  FCA 36 at [521 – 522]. Link
iv Celebratory feedback is defined by Justice Mortimer as “the lights, images and sounds made by the machines whenever sufficient symbols align in a manner that results in the gambler receiving a return”, see – Guy v Crown Melbourne Limited  FCA 36 at . Link
v Guy v Crown Melbourne Limited  FCA 36 at . Link
vi Guy v Crown Melbourne Limited  FCA 36 at . Link
vii Guy v Crown Melbourne Limited  FCA 36 at . Link
viii Guy v Crown Melbourne Limited  FCA 36 at . Link
ix Guy v Crown Melbourne Limited  FCA 36 at . Link
x Guy v Crown Melbourne Limited  FCA 36 at . Link