Clark, Cristy

English

Maurice Blackburn today launched a federal court case against poker machine manufacturer Aristocrat Technologies Australia and casino owner Crown Melbourne Limited. The case could decide whether the design and operation of poker machines can deliberately deceive players about their chances of winning

University of Canberra Research Repository

7/21/2020 Can a federal court case against pokies succeed where politics has failed?https://theconversation.com/can-a-federal-court-case-against-pokies-succeed-where-politics-has-failed-83871 1/3AuthorCristy ClarkLecturer in Law, Southern Cross UniversityAcademic rigour, journalistic flairMaurice Blackburn today launched a federal court case against poker machinemanufacturer Aristocrat Technologies Australia and casino owner Crown MelbourneLimited. The case could decide whether the design and operation of poker machinescan deliberately deceive players about their chances of winning.If this case is successful then it will have ramifications for the entire industry. Whilethe plaintiff, Ms Guy, is not seeking damages and is targeting only one casino and onepoker machine manufacturer, a precedent could be set for every poker machine inthe country.The gambling industry is a major contributor to Australian political parties and has thus far defeatedefforts to reform poker machines. It makes a lot of sense for those in favour of gambling reform toturn to the legal system.Read more: Three charts on: Australia's addiction to poker machinesThis court case has potential ramifications for every poker machine in Australia. AAPCan a federal court case against pokies succeed wherepolitics has failed?September 12, 2017 4.13pm AEST •Updated September 13, 2017 10.13am AEST7/21/2020 Can a federal court case against pokies succeed where politics has failed?https://theconversation.com/can-a-federal-court-case-against-pokies-succeed-where-politics-has-failed-83871 2/3Australians lost A$11.59 billion gambling in 2014-2015 alone. This averages out to A$633 per adult.However, the true figures are far more concerning. Only 8% of Australian adults typically use pokiesregularly, meaning these regular users lose between A$1,500 and A$3,500 each year.One of the reasons that we seem to be willing as a nation to tolerate such losses – and the resulting social harms – is due to the idea that gambling is a free choice.Our laws are largely based on this idea of informed and rational consumers who make free choices ina marketplace. But this case is being brought under Australian Consumer Law, which recognises thatconsumers are not always rational.The key argumentsWhile you may assume that the odds are always against people who play poker machines, MauriceBlackburn is alleging that certain aspects of the design of the “Dolphin Treasure” poker machinemislead consumers as to the true nature of these odds. These include:• The oversized reel – Maurice Blackburn alleges that when playing Dolphin Treasure all five reels onthe screen appear to be the same size. However, one of the reels is actually significantly bigger thanthe other four, making it far less likely that it will return a high-value symbol.• The starving of the reels – Similarly, Maurice Blackburn says the symbols are not distributed evenlyacross the five wheels in Dolphin Treasure. Maurice Blackburn has likened this to “playing a game ofcards without knowing the deck has four aces of spades, three queen of hearts and seven tens ofdiamonds”. The uneven distribution of symbols makes lining them up (and therefore winning) far lesslikely than you would naturally assume.• Onscreen information – Maurice Blackburn also alleges that the Dolphin Treasure machine givesplayers misleading information about the likely returns from playing the machine. The lawyers say themachine tells players that the returns start at 87%, but that this figure bears no relation to how muchan individual might lose per spin or session. Instead, this is a theoretical statement based on theexpected return over millions of spins.• Losses disguised as wins – Finally, Maurice Blackburn is arguing that by displaying lights andsounds for a partial return on a spin, the machines mislead players into feeling as though they arewinning when they have, in fact, lost money.Read more: Losses disguised as wins, the science behind casino profitsWhy sue under the consumer law?The Australian Consumer Law provides a strong legal foundation for this case. Unlike traditionalcontract law, consumer law recognises that many consumers do not behave rationally, that we oftenmake choices based on first impressions and poor information, and that businesses exploit this fact.7/21/2020 Can a federal court case against pokies succeed where politics has failed?https://theconversation.com/can-a-federal-court-case-against-pokies-succeed-where-politics-has-failed-83871 3/3Gambling Federal Court Poker machines court casePrevious cases give some idea of how the courts have applied this logic.In one case the High Court found that an ordinary and reasonable person gives only “perfunctory”attention to advertising material and, therefore, many will only absorb the “general thrust”.Similarly, a recent case about Nurofen “Special Pain” products focused on the impact of firstimpressions. While the ingredients are plainly listed on the packaging, and a consumer could havecompared boxes of “back pain” and “tension headache” medication and discovered they wereidentical, the Federal Court found that most consumers would simply rely on the name of the productand its (unfounded) claim to target specific pain.In the Nurofen case the Federal Court imposed a penalty of A$6 million and a further compensationpayout of $3.5 in a class action earlier this year. This indicates that consumers are entitled to rely onthese first impressions and businesses do not have free rein to exploit this.This is why section 18 of the Australian Consumer Law provides protection against misleading anddeceptive conduct – even where consumers could have discovered the truth had they dug a littledeeper. It also provides protection against unconscionable conduct, which in this case relates to theplaintiff’s claim that the poker machines are designed to be addictive.Read more: Poker machines and the law: when is a win not a win?What are the implications?While Ms Gay is not seeking damages, if her case is successful it will open the way for the ACCC totake action against the entire poker machine industry. The potential penalties from this could besignificant.Penalties and damages awarded in consumer law cases have traditionally been far lower than thoseawarded in competition law cases. However, this has changed over the last 12 months, spearheadedby the A$6 million penalty in the Nurofen case.In this case, the court emphasised the importance of imposing penalties that are high enough toensure “other ‘would-be wrongdoers’ think twice and decide not to act against the strong publicinterest”. The ACCC has since made it clear it intends to take up this call and to ensure penalties areseen as more than just a cost of doing business.In this new environment, a successful case against the poker machine industry would be one to watch.

Can a federal court case against pokies succeed where politics has failed?

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Can a federal court case against pokies succeed where politics has failed?

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