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Judgement No.3555
Citation: ESG&EC v Nicklaus
Question: Is an intoxicated player, falling asleep during a game and/or tournament
and being unable to complete that game and/or tournament, guilty of professional misconduct?
Hearing date/s: 9 May 2005
Judgment date: 10 May 2005
Jurisdiction: Professional Standards
Judgment of: Hannah, P.
Decision: Question answered, "Yes."
Catchwords: Failure to complete game, intoxication, professional misconduct.
Legislation cited: Earlwood Euchre Associates Act 1989 s.23 (1)(a)
Case/s Cited: HCCC v Litchfield (1997) 41 NSWLR 630, Sabag v HCCC [2001] NSWCA 411, Pillai v Messiter (No 2) (1989) 16 NSWLR 197, Spicer v NSW Medical Board & Ors (Court of Appeal 19 February 1981)
Parties: ESG&EC - Plaintiff, Nicklaus - Defendant
File number(s): SECE 42/2005
Counsel: Ford, Abbott & Lout - Plaintiff, Tackhead & Associates - Defendant
Details:
- In it's affidavit of 5 May 2005, the Earlwood Social Golf & Euchre Club's Professional Players Association (ESG&EC PPA)
says it's member, Tack Nicklaus, is guilty of unsatisfactory professional conduct and/or professional misconduct. The Association asks this Court to reprimand Nicklaus and make orders for his better education
so as to ensure his and the tournament public's safety.
- The particulars of the complaint are:
- Between Sunday evening, 1 May 2005, and Wednesday evening, 4 May 2005, the player purchased, consumed and stored quantities of beer (draught and packaged) and red wine in excess of
recognised and appropriate therapeutic standards;
- Between those dates, the player consumed alcohol in excess of accepted therapeutic use limits without applying for or obtaining a playing exemption authority from the ESG&EC PPA,
contrary to s.28(a) of the Earlwood Euchre Associates Act 1989;
- On numerous occasions between those dates, the player failed to ensure that quantities of packaged alcohol in his possession were stored in a sufficiently safe and secure receptacle, (e.g. a fridge) contrary
to the requirements set out in clause 1.6 of the ESG&EC's Earlwood Euchre Playing Conditions;
- During the third deal of Game 2, in a best of three semi-final match, the player fell asleep at the card table.
Judgement No.3555 Exhibit A - photo tendered by the plaintiff to support their claim of defendant's professional misconduct
Judgement No.3555 Exhibit A
© ESG&EC Media
- As is to be observed from the photograph right (Exhibit A), the complaint is about what are said to have been significant failures in the defendant's obligations as a professional euchre player in the purchase,
consumption and storage of alcohol, as it affected his tournament appearance on Wednesday evening, 4 May 2005.
- The complaint came on for an expedited hearing on 9 May 2005. The defendant concedes the factual basis for all particulars of the complaint, save in relation to matters of packaged beer storage where
his admission is confined to the novel assertion that the available motel room fridge was stocked, unbeknown to him, with freshly caught fish. At the close of the defendant's oral evidence, leave was given
for the defendant's solicitor (himself) to provide the court with a bundle of documentary material, mainly discarded beer cartons and wine bottle corks.
- The court finds that the defendant's particularised conduct proved amounts to professional misconduct. The court reprimands Nicklaus and suspends his playing license for 12 months. He is ordered
pursuant to s 61(1)(d) of the Earlwood Euchre Associates Act 1989 to, at his own cost, successfully complete a course operated by the ESG&EC's Professional Standards Board
entitled "The Assessment of Individual Competency for Playing Earlwood Euchre when Function is Impaired by Alcohol", within 6 months of this day before he may reapply for his playing license.
Nicklaus is to advise the ESG&EC PPA of his successful completion of the said course within 2 months of completion. Within 6 months of the date when, pursuant to s 61(1)(d)
above, Nicklaus advises the ESG&EC PPA he has successfully completed the said course, he shall submit to an skills audit conducted by them. Should he pass this skills audit,
the Association is to issue him with a probationary playing license.
Judgement No.2319
Citation: Keith the Neck v Kenny Crenshaw
Hearing date/s: 7-10 September 2009
Judgment date: 8 November 2009
Jurisdiction: Equity Division
Judgment of: Hannah, P.
Decision: Judgment for the defendant
Catchwords: Partnership, generally whether plaintiff and defendant were engaged in a euchre partnership for profit,
whether cut-throat wins when plaintiff was absent were an opportunity of the partnership, for which the defendant was liable to account.
Legislation cited: Civil Procedure Act 2005, Copyright Act 1968 (Commonwealth), Partnership Act 1982 (NSW), Supreme Euchre Court of Earlwood Rules
Case/s Cited: Macpherson v Macpherson (unreported, Supreme Court of Victoria Full Court, 30 November 1990), Watson v Foxman (1995) 49 NSWLR 315, Weiner v Harris [1910] 1 KB 285
Parties: Keith the Neck - Plaintiff, Kenny Crenshaw - Defendant
File number(s): SECE 724/2009
Counsel: Tackhead & Associates - Plaintiffs, Hughes & Java - Defendant
Details:
- These proceedings (commenced in August 2009 by summons) involve a dispute between the plaintiff and the defendant (both experienced euchre players) as to
the nature of their playing relationship over a considerable period of time. Broadly speaking, Keith the Neck alleges that (from a date which varied dramatically, not only
over the course of the different pleadings but also during the course of his evidence in the witness box, from as early as 1965 - when the pair were still at
school - to as late as September 1987) he and Mr Crenshaw entered into, and maintained, a partnership agreement for the business of playing euchre.
- Mr Crenshaw denies the alleged partnership, though he does accept that there were many hundreds of occasions in respect of which he did act in partnership with
Keith the Neck. The distinction drawn by Mr Crenshaw in this regard is that often these occasions were manufactured through the cutting of cards to decide a player's
partner although he concedes that this had not happened very often in the past 8 years.
- The fundamental issue in these proceedings is whether there was a partnership as alleged by the plaintiff. As noted, all of his claims for relief (including his claim to an
account on the winding up of the partnership and to profits made in cut-throat games) are predicated on the existence of the said partnership. If there was a partnership between the two,
then issues arise as to the terms and scope of that partnership; particularly, as to what was the business or property of that partnership and whether (as contended by Keith the Neck) the participation
of Mr Crenshaw in "outside" euchre games was a wrongful use or diversion of partnership property or business connections, so as to give rise to a claim by Keith to share in the profits therefrom.
- Partnership returns (including income tax returns for the past 15 years and business activity statements for various quarters since September 2003) signed by the defendant in effect as the
public officer of the partnership demonstrate that the parties were to be equal partners as to income (in each case the income is brought to account for their respective benefits in equal shares). Further,
it is clear from the depreciation schedules that the assets (mainly decks of Queens Slipper brand playing cards) brought by the parties into the partnership were to be held in the proportions to
which they were entitled to partnership income: 50 percent each. Thus, the returns having been prepared and signed by the defendant, there is no continuing ground for the dispute to which I have
referred. Indeed, at the hearing, Mr Java, counsel for the defendant, accepted that this must be so. The result is that if accounts are required to be taken, they will identify the assets,
liabilities, income and expenditure of the partnership and will allocate those matters 50/50 to each party.
Judgement No.1934
Citation: Per-Ulrik Fatcatsson/Blue v Kenny Crenshaw
Question: What is the penalty for refusing to accept your card has been deemed a table card?
Hearing date/s: 3 July 2004
Judgment date: 5 July 2004
Jurisdiction: Rules
Judgment of: Hannah, P.
Decision: In this instance, $120
Catchwords: Table card, follow suit, renege.
Legislation cited: Rules of Earlwood Euchre (1973) as amended, Hoyle's Rules of Games, The Essential Guide to Poker and Other Card Games - Third Revised and Updated Edition 2003
Case/s Cited: Tack Nicklaus v ESG&EC (SECE 15/1981)
Parties: Fatcatsson/Blue - Plaintiffs, Crenshaw - Defendant
File number(s): SECE 37/2004
Counsel: Ford, Abbott & Lout - Plaintiffs, Tackhead & Associates - Defendant
Details:
- The plaintiffs state in their affidavit that the defendant, Crenshaw, threw off on the first lead and then asked what trumps were. When so informed, he took back his card from the table
and replaced it with a trump, ultimately winning the trick. The plaintiffs state categorically that the card was played and released on the table prior to when Crenshaw asked what trumps were. They further
submit a claim for financial loss of $240 as they were euchred on the hand and eventually lost the game.
- Crenshaw, in his evidence, denies the card left his hand. Under cross-examination, he acknowledges that if it had, the card would be deemed a table card, and could not be withdrawn (SECE 15/1981).
- The defendant was asked why his partner, Keith the Neck, had declined to give evidence on his behalf. Crenshaw stated his partner was not a reliable witness as he was often under the influence of various mood-altering
substances, both legal and illegal, which over the course of many years had adversely affected his short and long-term memory.
- On this point, I concluded that the defendant was telling the truth as his proboscis, which had been steadily getting larger the longer his evidence went on, stopped growing.
- After reviewing the submissions and hearing the evidence there is no doubt both parties are well aware of this court's definition of a table card i.e. "When all three of the following occur: the card is played, it is
placed, by whatever means, on the table, and it is released by the player." The possible exception to this rule is where the player, before the trick has been taken away, advises the table he has reneged. His
opponents may agree to reward this honesty by starting the trick again or, if they are miserable bastards, they can take the 2 points for a renege.
- The evidence tended by Crenshaw was, to my mind, no more than a litany of half-truths and therefore I find the card played by him was in fact a table card. However, I am unable to confidently say that if Crenshaw's
card had been accepted as such, the result of the game would have been any different, and therefore I am reluctant to provide a remedy to the full amount of financial loss as claimed by the defendants. I award them 50%
of their claim, $120, to be shared between the plaintiffs and paid by the defendant and to be so noted on each player's TAB accounting card.
Judgement No.1864
Citation: Keith the Neck v ESG&EC
Question: Was an expulsion notice pursuant to s.57 (2)(b) ever served upon
the plaintiff in the manner authorised by s.170 of the Earlwood Euchre Associates Act
Hearing date/s: 3-4 July 2003
Judgment date: 7 August 2003
Jurisdiction: Professional Standards
Judgment of: Hannah, P.
Decision: Question answered, "Yes."
Catchwords: associates membership, leading partners double back to him, club's remedies, notice before exercising power of expulsion Earlwood Euchre Associates Act 1989 s.57 (2)(b),
finding of fact that notice delivered, consideration of requirements of Earlwood Euchre Associates Act 1989 s.170, question answered "yes", notice given
Legislation cited: Earlwood Euchre Associates Act
Case/s Cited: Connor v Earlwood District Hospital (1971) 1 NSWLR 713
Parties: Keith the Neck - Plaintiff, ESG&EC - Defendant
File number(s): SECE 35/2003
Counsel: Tackhead & Associates - Plaintiff, Hughes & Java - Defendant
Details:
- In the statement of claim the plaintiff asserts that no notice pursuant to s.57 (2)(b) by the defendant, in relation to his expulsion from the Euchre branch of the
ESG&EC, was ever served in the manner authorised by s.170 of the Act. In law, the plaintiff bears the burden of proof of the negative that no notices
were given. However, the defendant, in the nature of the issue, comes under a considerable forensic burden because the defendant is in a far better position to establish facts relating to
compliance with s.57 and s.170 than the plaintiff.
- The plaintiff's evidence-in-chief in his affidavit of 5 May 2003, para 11, said to the effect that the only notices (which he uses to refer to a s.57 (2)(b) notice) received were
breach notices, delivered the previous year, pertaining to relatively minor but persistent breaches of euchre standards e.g. leading back doubles and failing to lead a bower on his partner's
make. He said he had no recollection of ever receiving a show cause notice, and all documents received in connection with his associate membership are regularly filed and a thorough
search revealed no show cause notice.
- This evidence was supplemented by oral evidence and was challenged in cross-examination. The plaintiff produced a bundle of envelopes, exhibit 4, which he said are examples of envelopes
which he had received from the ESG&EC at his at Richmond Avenue address. The plaintiff's evidence further states while the above address is his home;
he lives in a small dungeon under the house, with his daughter renting the main house. His routine for receiving mail was that when he eventually came home, generally quite inebriated
from long sessions at the Earlwood Hotel and/or Earlwood Ex-Servicemen's club, he would find his mail, collected by his daughter from the mailbox, pushed under his dungeon door.
- In my view, the proofs offered by the plaintiff to the effect that the show cause notice was not received through the post at Richmond Avenue are not altogether convincing. It would
have been desirable that his daughter give evidence of her practices and also of anything she might know about the receipt of any such letter in the mail. It seems to me that he has not
offered full and clear proof of the negative proposition of which the burden of proof rests upon him.
- The defendant put in evidence the affidavit and oral evidence of Mr. Fatcatsson who, at the time of alleged dispatch of the show cause notice, was employed by the ESG&EC
and working in the Euchre Notice Unit of the Club's associate members division. His duties included the issuing of breach and show cause notices where the associate members standard of
euchre play had reportedly fallen short of established guidelines. He produced in evidence exhibit 3, a document internal to the club called Issuance of Notice. This document
specifies in fairly close detail a procedure to be followed for preparing, addressing and posting notices and for keeping records of so doing. Fatcatsson's evidence, since he has no actual
recollection of this breach notice, nor of his handling of said notice, is based upon his knowledge of the practice at that time, of his own pursuit of that practice and conformity with it, and
of what he is told by some written material he has produced.
- He tendered a copy of the show cause notice retained by the club bearing an endorsement made by him on the relevant day saying: "The document on which this stamp is placed is
an exact copy of the show cause notice posted to the addressee of the notice on today's date to the address appearing on the notice". This note, signed and dated by him, equipped
him rather well to speak of the events of that day on the basis of recollection refreshed by a contemporaneous note. His evidence then avers that he did sign the notice and write the date
in and he went on to say that he obtained a photocopy of it to make the note on the duplicate, signed his signature, printed his name and dated the stamp and, in accordance with standard
practice, he obtained a plain white unmarked envelope and hand wrote Keith the Neck's name and address on the envelope, attached a postage stamp of the right value and put the envelope (with,
his oral evidence shows, the notice itself) in a special tray in the Notice Unit.
- There are some small infelicitous aspects of Mr. Fatcatsson's evidence. When describing his practice he gave the wrong street number but at other places in his affidavit, and in the
records he produces with it, the correct street number uniformly appears. I have no doubt overall that his evidence supports my finding that he put the correct street number on the
envelope. He was also challenged in cross-examination with a suggestion that the postcode, as he wrote it in the postal service register, is difficult to read and may refer to some initial
number other than 2 for the postcode 2206. I am unable to believe that this can have been a practical difficulty as all post code numbers for New South Wales begin with the number 2 (with minor
exceptions for articles directed to post boxes).
- Overall Fatcatsson's evidence paints a picture of a carefully constructed routine supported by contemporaneous records, and gives proof of acts which, after a lapse of several years, depend
far more on the records than on the evidence of recollections of persons who took part in the events. Clearly enough, practices can be proved and relied on in proof of the probability that
events actually happened in accordance with the practice. The principal authority known to me is the decision of the Court of Appeal in Connor v Earlwood District Hospital (1971) 1 NSWLR
713. Where routines and practices have been carefully constructed and are well recorded, they can in fact be quite convincing, even more convincing than claims of recollection based on a witness
casting his mind back some years to a relatively minor event.
- On these considerations I find that the default notice, a copy of which is annexure A to Mr. Fatcatsson's affidavit, was posted in an envelope addressed to the plaintiff in the manner and
circumstances which Mr. Fatcatsson's evidence suggests that it was posted.
- Overall I am not impressed by the proofs offered in support of the proposition that it should be found, on the balance of probabilities, that the documents were not received at Keith the
Neck's Richmond Avenue residence. It may well be that they were not - but as a matter of probabilities I am not satisfied that it has been shown that they were not.
- For these reasons I answer the question: Yes, the defendant had given notice under, and in accordance with, s.57 (2)(b) of the Earlwood Euchre Associates Act 1989.
Judgement No.1774
Citation: Kenny Crenshaw/Keith the Neck v ESG&EC
Question: Must the person ordered up retain the (trump) card he was ordered up on?
Hearing date/s: 25-26 March 2003
Judgment date: 26 March 2003
Jurisdiction: Rules
Judgment of: Hannah, P.
Decision: Question answered, "No"
Catchwords: Order up, dealer, discard, trumps.
Legislation cited: Rules of Earlwood Euchre (1973) as amended, Hoyle's Rules of Games, The Essential Guide to Poker and Other Card Games - Third Revised and Updated Edition 2003
Case/s Cited: Kenny Crenshaw v ESG&EC (SECE 13/1986)
Parties: Crenshaw/Keith the Neck - Plaintiffs, ESG&EC - Defendant
File number(s): SECE 24/2003
Counsel: Tackhead & Associates - Plaintiffs, Hughes & Java - Defendant
Details:
- The plaintiffs claim in their affidavit that, according to the rules of the euchre, the dealer is not permitted to discard the
order up card. They further describe a loss of enjoyment when the dealer discards that card from his hand.
- When cross-examined by defence counsel, plaintiff Crenshaw was unable to describe his loss of enjoyment as anything more than a desire to
bully, ridicule and humiliate the dealer. His fellow plaintiff, Keith the Neck, maintained that the term "order up" had a strict
literal meaning and the dealer must keep that card in his hand.
- The defendant, represented by card master Fatcatsson, a joint custodian of the rules of Earlwood euchre, referred in his evidence-in-chief to
judgment SECE 13/1986, where this court found that the purpose of an order up, or a dealer take up, is to make that suit trumps. In that
judgment, the SECE found it inconceivable that euchre's founding fathers intended that a dealer, turning up a seven of hearts, and already holding the
right, left, ace, king and queen of hearts, should be forced to weaken his hand by discarding one of those higher cards to keep the order up card.
Therefore, Fatcatsson argued, the court has already determined that it is the dealer's prerogative to select which cards make his best hand.
- After reviewing the submissions and hearing the evidence of both parties, I find that the player ordered up has the right to decide which five
cards make up his best hand, and therefore his best defence, against the order up. For this reason I answer the question "No".
