The Federal Court heard a case about this scratchie: Kuzmanovski v New South Wales Lotteries Corporation  FCA 876. Whether the plaintiff had a $100,000 winner or not depended on whether in Australia ‘bathe’ means ‘swim’. Did the picture of the man doing freestyle at C1 show a man who was bathing, as the plaintiff was sure of at the moment he experienced an ‘explosion of elation’? The plaintiff hired senior counsel to argue the case for him. Justice Rares agreed with the plaintiff, and ordered contractual damages of $100,000 plus $28,000 in interest since 2007. Had the plaintiff been limited to damages for disappointment, he would have ordered $20,000. One senses that Justice Rares enjoyed writing the judgment. To add insult to injury, the Kuzmanovskis got their costs on an indemnity basis, based on their pre-proceedings offer to accept $80,000 in settlement of their claims:  FCA 1016.
NSW judges have suggested in the past that the Macquarie Dictionary is the most authoritative. It suggested that the use of ‘bathe’ to mean ‘swim’ was ‘chiefly British’, and the lottery company urged that bathe should not be interpreted in Australia to mean swim. But Justice Rares held that what the word meant was up to him, as the arbiter of fact, and though dictionaries are useful tools, they are only that, and considered all the definitions of reputable dictionaries together. The relevant part of the judgment is as follows:
‘Lotteries’ primary argument was that the word “BATHE” did not match the picture of the person swimming with the word “SWIM” underneath it. I reject that argument.
The following dictionaries define the verb “bathe” as having “swim” as one of its meanings:
- the Collins English Dictionary (3rd ed) (Special Australian Consultants GA Wilkes WA Krebs): sense 1 was: “intr[ansitive] to swim or paddle in a body of open water or a river”;
- the Australian Concise Oxford Dictionary of Current English (3rd ed): sense 1 was: “(intr) immerse oneself in water; exp to swim”;
- the Collins Australian Dictionary (Gem: 8th ed 2006) which was actually consulted by Mr Kuzmanovski: It gave a first sense as “swim in open water for pleasure”;
- the Macquarie Dictionary (4th ed): sense 7 (which was the second meaning for intransitive usage given): “Chiefly British: to swim for pleasure”;
- the New Shorter Oxford English Dictionary (Vol 1; 1993): sense 4 (which was the first meaning for intransitive usage given): “Immerse oneself in water, esp in the sea, a river, a swimming pool etc, for recreation”; it gave the examples of “bathing beauty” as being “an attractive woman in a swimsuit” and of “bathers (esp Austral.) swim-trunks, a swimming costume”.
An ordinary and natural meaning in Australian English usage of “bathe” is “swim”. It follows that the picture of a person swimming, taken by itself, matches the word “bathe” on the ticket. Lotteries argued that because the Macquarie Dictionary used the qualification “chiefly British” in relation to this meaning of “bathe”, I should not make this finding. It contended that I should accord primary regard to that dictionary because in House of Peace Pty Ltd v Bankstown City Council  NSWCA 44; (2000) 48 NSWLR 498 at 506 [33 par 3] Mason P had described it as the “most authoritative Australian dictionary” following what Kirby P had said in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 553. It also pointed to the methodology that the Macquarie Dictionary stated it had employed, of putting the central meaning of each part of speech first. Lotteries relied on the fact that the “chiefly British” meaning was the second meaning the Macquarie Dictionary gave for the intransitive usage of “bathe”.
The meaning of a word used in ordinary speech or writing is a question of fact. Dictionaries provide a useful and often important source or aid from which the answer to that question of fact can be determined. However, it is not legitimate to defer to one particular usage in one dictionary as the only meaning for a word. Here, the Macquarie Dictionary, and three others prepared for Australian use, as well as common experience of the use of “bathe” as a word of ordinary speech, recognise that a natural and ordinary meaning of bathe was “swim”. No contractual provision or rule identified the exact means or dictionary by which a word’s meaning was agreed to be ascertained. Thus the relationship of the parties in these proceedings did not require deference to Lotteries’ asserted meaning for “bathe” as not being “swim”.
In a passage quoted with approval by Black CJ, Jacobson and Perram JJ in Polo/Lauren Co LLP v Ziliani Holdings Pty Ltd  FCAFC 195; (2008) 173 FCR 266 at 273  Mason P, with whom Stein and Giles JJA agreed, said (House of Peace 48 NSWLR at 505 ):
“A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.”
In Provincial Insurance 25 NSWLR at 560-561, Mahoney JA engaged in a valuable discussion about the use of dictionaries in construing words used in documents and statutes. He observed, and I agree, that dictionaries are not a substitute for the judicial determination of the interpretation and the construction of words used in such instruments: citing Life Insurance Co of Australia Ltd v Phillips  HCA 18; (1925) 36 CLR 60 at 78 per Isaacs J. Mahoney JA also stated that there is no single authoritative dictionary and the Court would improperly restrict itself if it referred to only one dictionary and not another. He went so far as to say that it is “… dangerous, in interpreting or construing a document, to confine attention to a single dictionary”: Provincial Insurance 25 NSWLR at 561.
Next, Lotteries argued that the word “BATHE” did not “match” the picture of the person swimming because the primary meaning of “match” as used in the ticket’s play instructions was to pair, couple or marry two things together: cp State Lotteries Office v Burgin  NSWCA 254 (BC 9301896) at 9 per Kirby P, or, to exactly correspond: per Sheller JA at 22. Lotteries contended that the examples shown on the ticket indicated that the caption, being the word in small print underneath the picture, confirmed its construction of “match” as requiring a precise identity between the word in larger print and the picture. I reject this argument. None of the four losing examples used a word which could have had the meaning of the picture in the same game. The real premise of this argument was that the caption created and delimited whether the word and picture matched. The flaw in the argument was that the game would then be to match the word and either only the caption but not the picture, or both the picture together with its caption. But that would be a different game to the one in the play instructions, which required only a matching of the word and the picture. They did not make the caption a part of the game or the process of matching.
Next Lotteries argued that by “exploring” the concepts or meanings at work there was a clear difference between bathing and swimming. It referred to dictionary definitions of “swim” to suggest that its primary meaning was to propel the body through water while “bathe” involved immersing the body in water. I reject this argument. The concept in the game was plain: the word “BATHE” was matched by the picture of the person swimming. The meaning of “swim” was not part of the game. A person playing the game on the scratchie lottery ticket was not expected to engage in a metaphysical debate about every possible permutation of the meanings that could be conveyed by the word and picture. The concept could not be simpler; indeed, a child could play, as no doubt children also often play, the board game of Pictionary. The real problem, self-evidently, was the poor design of the game, the play instructions and the lack of familiarity of the designers with the range of ordinary and natural meanings of the word “bathe”. That problem is no reason to construe a consumer product such as a scratch lottery ticket artificially or with the overrefinement that Lotteries suggested.
Lotteries argued that the overlap in the meaning or concepts of “bathe” and “swim” was relatively minor and not such as to support the result that the word “BATHE” matched the picture. I reject that argument too. As Wilmot LCJ said in Dodson v Grew  EngR 23; (1767) Wilm 272 at 278; [97 ER 106 at 108] “Words are only pictures of ideas upon paper”: cited by Isaacs J in Fell v Fell  HCA 55; (1922) 31 CLR 268 at 276 and Mason P in House of Peace 48 NSWLR at 504 . English is a language full of words that both can match meanings as well as convey different senses depending on the context. Here, two words were not being used; only one word was used together with a picture it matched.’
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