Federal Court of Australia

Australian Communications and Media Authority v Jones (No 6) [2025] FCA 1477

ORDERS

THE COURT NOTES THAT:

A. The Court has determined that the first and fourth respondents contravened s 15(2A) of the Interactive Gambling Act 2001 (Cth) (the IGA) by providing prohibited interactive gambling services with an Australian-customer link, described as the PPPFish Service and the Shuffle Gaming Service (the Services).

B. The third respondent has admitted that he contravened s 15(2A) of the IGA by aiding and abetting the first and fourth respondents in their provision of the Services.

C. The issues of relief and penalty against the first, third and fourth respondents remain to be determined.

THE COURT ORDERS THAT:

1. The applicant and the first and fourth respondent are to agree a program for the exchange of evidence and submissions concerning relief and penalty.

2. The applicant and the third respondent are to agree a program for the exchange of any further evidence and submissions concerning relief and penalty.

3. The matter be listed for hearing of the issues of relief and penalty on a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1 In this proceeding, the applicant, the Australian Communications and Media Authority (the ACMA), alleges that the respondents provided “prohibited interactive gambling services” in contravention of s 15(2A) of the Interactive Gambling Act 2001 (Cth) (the IGA).

2 The ACMA alleges, in summary, that the respondents provided services that facilitated the playing of online poker by members of the public, including allowing them to purchase poker chips and gamble with those chips.

3 The first respondent is Rhys Edward Jones. Mr Jones is the sole director and shareholder of the fourth respondent, Brisbane Poker Pty Ltd (Brisbane Poker).

4 The second respondent is Diverse Link Pty Ltd (Diverse Link). Default judgment has been granted against Diverse Link.

5 The third respondent is Brenton Lee Buttigieg. Mr Buttigieg has admitted ancillary liability for Mr Jones’ and Brisbane Poker’s contraventions of s 15(2A) of the IGA by his promotion of their services.

6 The issue that must be determined is whether Mr Jones and Brisbane Poker contravened s 15(2A) of the IGA. Any issues of remedy and penalty are to be determined following another hearing. I have heard argument concerning remedy and penalty in respect of Mr Buttigieg’s contraventions and reserved my judgment. However, the preferable course is to allow the parties to make further submissions concerning those matters now that the question of Mr Jones’ and Brisbane Poker’s contraventions has been determined.

The history of the proceedings

7 The ACMA commenced its proceedings on 20 April 2022. The ACMA initially sought orders reinstating the registration of Brisbane Poker pursuant to s 601AH of the Corporations Act 2001 (Cth). Such an order was made by Thomas J on 15 August 2022.

8 Default judgment was entered against Diverse Link on 23 March 2023 in Australian Communications and Media Authority v Jones [2023] FCA 246, where Thomas J declared that:

Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), between 15 March 2021 and 13 April 2022, the second respondent provided a prohibited interactive gambling service, through https://redrawpoker.com/ and the Redraw Poker clubs on the PPPoker App with Club identification numbers 3000693, 3000694 and 3000695 that had an Australian-customer link and by doing so contravened s 15(2A) of the Interactive Gambling Act 2001 (Cth).

9 On 24 July 2023, Diverse Link was ordered to pay a pecuniary penalty for the declared contravention of s 15(2A) of the IGA in the sum of $5,000,000: see Australian Communications and Media Authority v Jones (No 4) [2023] FCA 834.

10 Two other interlocutory judgments were delivered by Thomas J:

dismissing an application filed by Mr Buttigieg seeking the ACMA’s Concise Statement be struck out on 23 May 2023: Australian Communications and Media Authority v Jones (No 3) [2023] FCA 511; and

ordering that Mr Buttigieg pay the costs of his dismissed application on 23 November 2023: Australian Communications and Media Authority v Jones (No 5) [2023] FCA 1455.

11 Mr Buttigieg sought leave to appeal against Thomas J’s decision to dismiss his strike out application. Leave was refused.

12 The matter was listed for hearing before me for four days from 21 to 24 October 2024. When listed, it was anticipated that the issues to be determined were the allegations of contravention made against Mr Jones, Brisbane Poker and Mr Buttigieg. Any questions of relief and penalty were to be determined after any findings of contravention.

13 On 11 October 2024, the Court was notified that an agreement had been reached between the ACMA and Mr Buttigieg, “as to the terms on which they seek the resolution of the proceedings between them”. Those parties provided a Statement of Agreed Facts and joint submissions as to the relief that should be ordered. The balance of the contested liability hearing was only against Mr Jones and Brisbane Poker.

14 The hearing proceeded in the following three parts:

the ACMA’s opening against Mr Jones and Brisbane Poker;

Mr Jones’ and Brisbane Poker’s submissions upon the admissibility of evidence and the substantive merits of the case; and

submissions on relief and penalty by the ACMA and Mr Buttigieg.

15 The legal representatives of Mr Jones and Brisbane Poker did not appear on the first day of the hearing when the ACMA commenced its opening on the basis they were only instructed to attend Court for one day for the purposes of making a no-case submission. Accordingly, I made orders on 21 October 2024 that, “the hearing proceed generally in the absence of the first and fourth respondents”, pursuant to r 30.21(1)(b) of the Federal Court Rules 2011 (Cth).

16 I required that a transcript of the commencement of the ACMA’s opening submissions be provided to the legal representatives of Mr Jones and Brisbane Poker. Those legal representatives appeared on the second day. After some consideration, they decided not to press their no-case submission and to instead make final submissions concerning the substantive merits of the case. They appeared again on the fourth day.

17 On the third day of the hearing, I heard submissions concerning the issues of relief and penalty against Mr Buttigieg. However, the ACMA sought the opportunity to make further submissions about the terms of the declaratory order sought after I had determined the liability of Mr Jones and Brisbane Poker. There also appeared to be a discrepancy between the amount that the evidence disclosed Mr Buttigieg was paid for his services by Brisbane Poker and the amount that the ACMA and Mr Buttigieg agreed had been paid. I also expressed reservations about the appropriateness of the agreed penalty of $120,000 for 144 contraventions when the maximum penalty for a single contravention is $1,665,000. Counsel for Mr Buttigieg indicated that if I were not minded to accept the agreed penalty, his admissions may be withdrawn.

18 In these circumstances, I reserved my judgment in respect of relief and penalty against Mr Buttigieg but indicated that I would allow the ACMA and Mr Buttigieg to make further submissions concerning the appropriate relief and penalty and any further course they may wish to take after the Court’s determination of whether Mr Jones and Brisbane Poker had committed the contraventions alleged by the ACMA. I will allow that opportunity after the delivery of these reasons.

The allegations

19 The proceeding concerns online services which the ACMA contends were “prohibited interactive gambling services” and which it alleges were provided to Australian customers by Mr Jones and Brisbane Poker.

20 An application named the “PPPoker App” provides a series of private “clubs” within which users can play online games of poker against other players. The PPPoker App is run by an unrelated foreign entity which is not involved in this proceeding. The ACMA does not allege that the PPPoker App itself is provided or operated by any of the respondents.

21 The “prohibited interactive gambling services” that the ACMA alleges were provided by Brisbane Poker and Mr Jones are:

A service described as the PPPFish Service provided between 2 March 2020 and 6 January 2021 through the website https://pppfish.com/ (the PPPFish Website) and clubs on the PPPoker App having identification numbers 700000, 1071550 and 910440 (collectively, the PPPFish Clubs);

A service described as the Shuffle Gaming Service provided between 6 January and 10 March 2021 through the PPPFish Website, the website https://shufflegaming.com (the Shuffle Gaming Website), and clubs on the PPPoker App having identification numbers 2896943, 2896953 and 2896949 (collectively, the Shuffle Gaming Clubs).

22 The way the PPPoker App, the clubs and the websites operated to deliver the PPPFish Service and the Shuffle Gaming Service can be summarised as follows:

The PPPoker App could be downloaded by members of the public from the internet or app stores.

The PPPoker App offered a facility for persons or entities to set up private poker clubs within the PPPoker App.

Users could apply to join a private poker club and play games of poker online against other players. The games in these clubs did not necessarily involve playing poker for money or anything of value.

In some private clubs, customers were able to play poker for money by registering an account on a separate website and purchasing chips through the separate website (via bank transfer or by bitcoin payment) which would be credited to the customer’s linked account on the PPPoker App.

A portion of the pot of chips that was bet was kept by the operator of the club.

Customers could sell their chips via the separate website and receive a bank transfer or bitcoin for the value of their chips.

23 The ACMA conducted investigations into the alleged gambling services following the receipt of complaints from members of the public. On 18 December 2020, the ACMA advised Brisbane Poker and Mr Jones of its preliminary findings that they were contravening s 15(2A) of the IGA. The ACMA alleges that on about 6 January 2021, the PPPFish Service was closed down and the players’ accounts and chips in the PPPFish Clubs were migrated to the Shuffle Gaming Clubs. The ACMA alleges that the Shuffle Gaming Service was a continuation of the PPPFish Service and operated in the same manner.

24 The ACMA alleges that on about 10 March 2021, the Shuffle Gaming Service was closed down, and a new service (the Redraw Poker Service) was created, with a new website also being established. This service was provided by Diverse Link.

25 Mr Buttigieg has admitted that he administered a private Facebook group for the PPPFish, Shuffle Gaming and Redraw Poker Services in which he promoted the Services, referred customers to the Services and provided instructions on how to use the Services.

26 The ACMA concedes that it does not have enough evidence to establish that the Redraw Poker Service was a continuation of the Shuffle Gaming Service or that it was provided by Mr Jones or Brisbane Poker. As has been indicated, default judgment was given against Diverse Link for its provision of the Redraw Poker Service.

27 The ACMA alleges that Mr Jones and Brisbane Poker operated websites which allowed the purchase and sale of chips that could then be used in the relevant clubs in the PPPoker App. The ACMA submits that those websites facilitated the delivery of the prohibited interactive gambling service because they allowed games of poker in certain clubs on the PPPoker App to be played for money.

28 To establish a contravention of s 15(2A) of the IGA, the ACMA must prove (1) the existence of a prohibited interactive gambling service; (2) with an Australian-customer link; and (3) the provision of that service by the respondents.

29 The written and oral submissions addressing the case against Mr Jones and Brisbane Poker, broadly address the following issues:

(1) The admissibility of the affidavit of Laurie Korpi, a senior investigator in the Interactive Gambling Team within the ACMA.

(2) Whether any Jones v Dunkel inference may be drawn in respect of Mr Jones’ failure to give evidence.

(3) Whether there was a “provision” of a “prohibited interactive gambling service”, including:

(a) how the phrase “gambling service” pursuant to s 4 of the IGA should be construed; and

(b) whether Mr Jones and Brisbane Poker “provided” any gambling service.

(4) Whether there was an “Australian-customer link”.

30 When I address the submissions made on behalf of Mr Jones and Brisbane Poker, it will be convenient to simply refer to them as Brisbane Poker’s submissions.

The statutory provisions

31 Section 15 of the IGA includes both an offence provision and a civil penalty provision. The section provides, relevantly:

15 Prohibited interactive gambling services not to be provided to customers in Australia

(1)    A person commits an offence if:

(a)    the person intentionally provides a prohibited interactive gambling service; and

(b)    the service has an Australian-customer link (see section 8).

Penalty: 5,000 penalty units.

(2)    A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

(2A)    A person must not provide a prohibited interactive gambling service that has an Australian-customer link (see section 8).

Civil penalty: 7,500 penalty units.

(2B)    A person who contravenes subsection (2A) commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).

(3)    Subsections (1) and (2A) do not apply if the person:

(a)    did not know; and

(b)    could not, with reasonable diligence, have ascertained;

that the service had an Australian-customer link.

…

(4)    For the purposes of subsection (3), in determining whether the person could, with reasonable diligence, have ascertained that the service had an Australian-customer link, the following matters are to be taken into account:

(a)    whether prospective customers were informed that Australian law prohibits the provision of the service to customers who are physically present in Australia;

(b)    whether customers were required to enter into contracts that were subject to an express condition that the customer was not to use the service if the customer was physically present in Australia;

(c)    whether the person required customers to provide personal details and, if so, whether those details suggested that the customer was not physically present in Australia;

(d)    whether the person has network data that indicates that customers were physically present outside Australia:

(i)    when the relevant customer account was opened; and

(ii)    throughout the period when the service was provided to the customer;

(e)    any other relevant matters.

…

(Underlining added.)

32 At the time of the alleged contraventions, the term “prohibited interactive gambling service” was defined by s 5 of the IGA as follows:

5 Prohibited interactive gambling services

(1)    For the purposes of this Act, a prohibited interactive gambling service is a gambling service, where:

(a)    the service is provided in the course of carrying on a business; and

(b)    the service is provided to customers using any of the following:

(i)    an internet carriage service;

(ii)    any other listed carriage service;

(iii)    a broadcasting service;

(iv)    any other content service;

(v)    a datacasting service.

…

Excluded services

(3)    For the purposes of this Act, none of the following services is a prohibited interactive gambling service:

(a)    a telephone betting service;

(aa)    an excluded wagering service (see section 8A);

(ab)    an excluded gaming service (see section 8B);

(aba)    a place based betting service (see section 8BA);

(ac)    a service that has a designated broadcasting link (see section 8C);

(ad)    a service that has a designated datacasting link (see section 8C);

(ae)    an excluded lottery service (see section 8D);

(b)    a service to the extent to which it relates to the entering into of contracts that are financial products within Chapter 7 of the Corporations Act 2001;

(ba)    a wholesale gambling service;

(bb)    a trade promotion gambling service (see section 8BB);

(c)    an exempt service (see section 10).

33 Section 4 of the IGA defines “gambling service” as:

(a)    a service for the placing, making, receiving or acceptance of bets; or

(b)    a service the sole or dominant purpose of which is to introduce individuals who wish to make or place bets to individuals who are willing to receive or accept those bets; or

(c)    a service for the conduct of a lottery; or

(d)    a service for the supply of lottery tickets; or

(e)    a service for the conduct of a game, where:

(i)    the game is played for money or anything else of value; and

(ii)    the game is a game of chance or of mixed chance and skill; and

(iii)    a customer of the service gives or agrees to give consideration to play or enter the game; or

(f)    a gambling service (within the ordinary meaning of that expression) that is not covered by any of the above paragraphs.

34 Section 8 defines “Australian-customer link” as follows:

For the purposes of this Act, a gambling service has an Australian-customer link if, and only if, any or all of the customers of the service are physically present in Australia.

35 Section 140(1) of the Evidence Act 1995 (Cth) provides, “the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities”.

36 Section 140(2) of the Evidence Act requires that the Court’s satisfaction must be reached by taking into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged. These considerations reflect the views expressed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31]. As the allegations expose Mr Jones and Brisbane Poker to the serious consequence of civil penalties, I accept that the case calls for application of the Briginshaw principles.

The evidence and objections

37 The ACMA relied upon affidavits of the following witnesses:

Laurie Korpi, a senior investigator with the ACMA;

Deanne Pappas, an investigator with the ACMA;

Andrew O’Brien, an investigator with the ACMA;

Matthew Garey, a lawyer with the Australian Government Solicitor;

Terence Potter, a chartered accountant; and

Fredric Schoenberg, a professor of statistics at the University of California and Los Angeles.

38 Mr Jones and Brisbane Poker took no objection to the evidence of Ms Pappas, Mr O’Brien, Mr Garey, Mr Potter and Professor Schoenberg. They were not required for cross-examination. I accept their evidence.

Objection to Mr Korpi’s evidence

39 Brisbane Poker objects to the admission into evidence of Mr Korpi’s affidavit of 17 November 2023.

40 Mr Korpi explains that as part of the investigation, he caused chips to be purchased on the PPPFish Website and then played poker, gambling with the purchased chips, in a club in the PPPoker App. He subsequently created an account on the Shuffle Gaming Website, although he did not purchase chips on that website or then play poker. Mr Korpi describes the steps he took and produces screenshots of the various screens he navigated on the PPPFish Website, the Shuffle Gaming Website and the PPPoker App.

41 The objection is based on s 138 of the Evidence Act. Brisbane Poker submits that Ridgeway v The Queen (1995) 184 CLR 19 (Ridgeway) at 35-36 establishes a principle that any evidence obtained through the commission of an illegal act cannot be introduced at trial unless there was specific permission given in the statute for such illegal acts to be exonerated. It submits that there is no provision providing any such exoneration in the IGA.

42 Section 138 of the Evidence Act provides:

138 Discretion to exclude improperly or illegally obtained evidence

(1)    Evidence that was obtained:

(a)    improperly or in contravention of an Australian law; or

(b)    in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)    Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)    did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b)    made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)    Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)    the probative value of the evidence; and

(b)    the importance of the evidence in the proceeding; and

(c)    the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and

(d)    the gravity of the impropriety or contravention; and

(e)    whether the impropriety or contravention was deliberate or reckless; and

(f)    whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)    whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h)    the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

The content of Mr Korpi’s evidence

43 Mr Korpi deposes that on 30 June 2020, the ACMA commenced an investigation following the receipt of a number of complaints regarding the service provided through the PPPFish Website in conjunction with the PPPoker App. Mr Korpi used an alias Gmail account in the name of Emily Jones and an alias Facebook account in the name of Ruby Allen to facilitate his investigations.

44 On 8 October 2020, Mr Korpi created an account on the PPPFish Website. The PPPFish Website instructed registered customers to “Download PPPoker app and join” one of three clubs; to “register an account here on PPPFish.com”; and to “Purchase chips here on PPPFish.com”. The PPPFish Website displayed three different “Club ID” numbers (700000, 1071550 and 910440), which Mr Korpi understood to be identification numbers of clubs on the PPPoker App.

45 Mr Korpi created an account on the PPPoker App. He applied to join the club numbered 910440 (Club 910440) via the PPPoker App. He was notified in an email tab that, “PPPfish.com 3 (Club ID:910440) has approved your application”.

46 Mr Korpi then navigated to the PPPoker App homepage and clicked on the “PPPfish.com 3” tab. He received a pop up with the heading “Club Profile” which read, “Use our website www.pppfish.com to buy chips”. Mr Korpi also viewed the “lobby” of Club 910440 which showed a list of tables offering poker gameplay.

47 Mr Korpi linked his PPPoker account to the PPPFish Website by navigating to the “Settings” tab on the PPPFish Website and following the required process. He received the notification, “PPPoker Account added successfully”.

48 Mr Korpi directed another officer from the ACMA to purchase ten chips on the PPPFish Website using bitcoin. The cost of each chip was $1. The PPPFish Website redirected the officers to a URL which displayed a QR code and instructed that 0.00066852 in bitcoin be sent to a Wallet address, which was done. Mr Korpi then received ten chips in his account on the PPPoker App.

49 Mr Korpi then played four hands of poker in Club 910440 on the PPPoker App. The style of poker available was described as “NLH”, or “No Limit Hold’em”. Mr Korpi was able to place bets on each hand using the chips he had received. He won the first hand and then lost the next three, losing four of the ten chips overall.

50 Mr Korpi gave no evidence of having joined or played in the PPPFish Clubs on the PPPoker App with the identification numbers 700000 and 1071550.

51 Mr Korpi deposes that on 14 January 2021 he used his credentials to again log into the PPPoker App. He deposes that the screen displayed the name of Club 910440 for less than a second, before it changed to a club called “Shuffle 3”. He observed that the PPPFish Service had been renamed “Shuffle Gaming” and that Club 910440 had been renamed “Shuffle 3” (Club Shuffle 3).

52 Mr Korpi then entered Club Shuffle 3 and observed it also had a new club identification number 2896949. Mr Korpi observed that his chip balance was the same as the chip balance he had previously held in the Club 910440, being six chips. Mr Korpi had not requested to join Club Shuffle 3 or the Shuffle Gaming Service.

53 On 27 January 2021, Mr Korpi logged into the PPPoker App and clicked on the “Search” icon which redirected him to a pop-up window entitled “Join a Club” and prompted him to enter a club identification number. He entered the number “2896949” and after clicking “Join” was redirected to a page entitled “Club Details” which read “Shuffle 3”. The page included Mr Korpi’s PPPoker App credentials and invited him to click “Apply”. Mr Korpi repeated the process using the club identification numbers “2896943” and “2896953”, observing they were linked to clubs named “Shuffle 1” and “Shuffle 2” respectively.

54 On 15 February 2025, Mr Korpi accessed Club Shuffle 3 via the PPPoker App and saw a pop-up notification which stated, “Please be aware that the use of this Application for real dollar gambling is unlawful in the Australian Jurisdiction. Any person who is reasonably suspected to be breached [sic] Australian Law may have their access to this Application terminated”. Mr Korpi observed this pop-up notification again on 18 February 2021, but deposes that it did not appear when he accessed the PPPoker App on 19 February 2021.

55 On 17 February 2021, Mr Korpi confirmed the three clubs (Shuffle 1, Shuffle 2 and Shuffle 3) were all active on the PPPoker App. On 19 February 2021, Mr Korpi accessed the Shuffle Gaming Website and attempted to log in using his PPPFish Website credentials but was unable to do so.

56 Mr Korpi then created an account on the Shuffle Gaming Website by navigating to the “Join” page, entering his alias and email address and creating a password. Mr Korpi was then redirected to a page which instructed him to check his emails for a message from “noreply@shufflegaming.com” where he could confirm his email address and activate his account. After following these instructions, Mr Korpi was redirected to a page on the Shuffle Gaming Website which advised him that his email had been verified.

57 Mr Korpi next attempted to link his account on the PPPoker App with the Shuffle Gaming Website in order to purchase chips.

58 Mr Korpi navigated to the “Buy Chips” tab on the Shuffle Gaming Website, entered “10” into the “Amount” field and clicked on the “Select Your Payer ID” drop-down tab. The tab was blank so Mr Korpi clicked on a menu option called “Edit Your Player ID” and was redirected to a page entitled “My Player ID Details” where he was asked to enter “Your Display Name” and “Your User ID number”.

59 Mr Korpi proceeded to access his PPPoker Account Details by logging into the PPPoker App using his PPPoker App credentials. Mr Korpi deposes that while doing so, he observed Club Shuffle 3 was listed and accessible as a club within his PPPoker App account. Mr Korpi then returned to the “My Player ID Details” page on the Shuffle Gaming Website and entered his PPPoker App display name and user identification number. After he clicked “Submit”, Mr Korpi was redirected to a page that displayed the text, “Something Went Wrong! Please refresh page to load data”.

60 Mr Korpi navigated back to the Shuffle Gaming Website’s home page where he again accessed the “Edit Your Player ID” menu option. Here Mr Korpi viewed a series of graphics entitled “How to Find Your Details” with the instruction, “Follow the steps below to find all your details within the PPPoker app, you need these to buy and sell chips on our site”. The graphics appear to be annotated screenshots of the PPPoker App showing customers where they may find their display name, user identification number and club identification number.

61 Mr Korpi attempted twice more to enter his PPPoker App credentials in the “Buy Chips” tab on the Shuffle Gaming Website and both times received the same error message.

62 Mr Korpi gave no evidence of playing any games of poker in any of the Shuffle Gaming Clubs.

Admissibility of Mr Korpi’s evidence

63 Mr Korpi’s evidence of having purchased chips on the PPPFish Website and playing poker in Club 910440 is relied on by the ACMA to prove that Mr Jones and Brisbane Poker “provided” a “prohibited interactive gambling service” with an “Australian-customer link”. Brisbane Poker submits that by engaging in that conduct, Mr Korpi committed an “ancillary offence”.

64 Brisbane Poker notes that s 11.2(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code) provides that, “A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly”. Pursuant to s 62 of the IGA, s 11.2(1) of the Criminal Code, “applies to an offence against this Act”. The submission continues that if Mr Jones and Brisbane Poker contravened s 15(2A) of the IGA, then so too did Mr Korpi. It is submitted that Mr Korpi’s evidence was “obtained improperly through entrapment” and illegally because he was committing an “ancillary offence” under the IGA.

65 The first difficulty with the submission is that there is no allegation by the ACMA that Mr Jones and Brisbane Poker committed any “offence against this Act” within the meaning of s 62 of the IGA. Section 15(1) provides that, “A person commits an offence if…the person intentionally provides a prohibited interactive gambling service; and…the service has an Australian-customer link…”. That provision creates an offence. However, the allegation against Mr Jones and Brisbane Poker is that they contravened s 15(2A), which is a civil penalty provision, not an offence provision. For s 11.2(1) of the Criminal Code to have application to Mr Korpi, it would have to be demonstrated that Mr Jones and Brisbane Poker contravened s 15(1), but there is no allegation of such a contravention. Accordingly, s 62 of the IGA and Part 2.4 of the Criminal Code have no application to the present case.

66 It may be that Brisbane Poker’s argument relies instead on s 92(1)(b) or (d) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), which respectively provide that a person must not, “aid, abet, counsel or procure a contravention of a civil penalty provision”, or “be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision”. Under s 92(2), a person who contravenes s 92(1) in relation to a civil penalty provision is taken to have contravened the provision.

67 However, it cannot be accepted that Mr Korpi obtained the evidence “improperly” for the purposes of s 138 of the Evidence Act.

68 In Robinson v Woolworths Ltd (2005) 64 NSWLR 612 (Robinson), the Court was concerned with s 138 of the Evidence Act 1995 (NSW) and the asserted impropriety of Department of Health officers engaging youths to buy cigarettes from vendors who might then commit an offence of selling cigarettes to persons under 18 years of age. In that case, Basten JA (with whom Barr J agreed) held at [22] that the principles concerning impropriety collected in Ridgeway applied to s 138. His Honour noted at [23] that in Ridgeway at 36 it was observed that impropriety is concerned with, “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”.

69 Justice Basten noted that in R v Sloane (1990) 49 A Crim R 270, Gleeson CJ at 272–273 stated that, “the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed or would have been unlikely to commit”, before observing at 273:

A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment.

70 Justice Basten also noted at [27] that in Ridgeway, Gaudron J distinguished between the mere provision of an opportunity to commit a crime and inducement to commit a crime, saying at 77:

In cases of “mere opportunity”, the accused person is fairly regarded as wholly responsible for his own actions. And that is so even if there is some illegality associated with the opportunity provided, as, for example, that involved in the purchase of contraband where it is clear that it is generally available to all who wish to purchase it.

71 In Robinson, Basten JA concluded at [46] that there was no impropriety for the purposes of s 138 of the NSW Evidence Act for reasons including that: the conduct did not involve the application of any form of pressure, persuasion or manipulation; the conduct involved no intrusion on individual rights or freedoms and no harassment; the youths had acted in the manner of ordinary members of the public seeking to purchase cigarettes; and in the case of an offence which does not involve criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance.

72 In Director of Consumer Affairs Victoria v The Good Guys Discount Warehouses (Australia) Pty Ltd (2016) 245 FCR 529, Moshinsky J considered whether Consumer Affairs Victoria inspectors, by posing as customers and giving the false impression that they were interested in purchasing items and surreptitiously recording their conversations with salespeople, had acted “improperly” for the purposes of s 138(1) of the Evidence Act. His Honour held at [128]:

In my view, the evidence was not improperly obtained within the meaning of s 138(1) ... In R v Sloane, Gleeson CJ said (at 272-273) that the concept of “entrapment” involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed, or would have been unlikely to commit. In Ridgeway, Gaudron J (at 77) drew a distinction between cases of “mere opportunity”, where the accused person is fairly regarded as wholly responsible for his or her own actions, and cases which go beyond the provision of mere opportunity, where the offence results from the illegal actions of those whose duty it is to uphold the law, and it is they who, in a real sense, are responsible for its commission. Applying that reasoning in the present context, in my view the CAV inspectors gave the salesperson a mere opportunity to engage in misleading and deceptive conduct (or conduct likely to mislead or deceive).

73 Section 22(1) of the IGA provides that an investigation, “is to be conducted as the ACMA thinks fit”, and under s 22(2), that the ACMA may “make such inquiries, as it thinks fit”. In this case, the PPPFish Clubs and the PPPFish Website offered members of the public the opportunity to register as a user, buy chips and play poker. Mr Korpi did not induce anyone to offer those facilities: they were already on offer. Any member of the public could have engaged with and used the facilities just as Mr Korpi did. Mr Korpi did not induce providers of those facilities to engage in actions they would not otherwise have done or were unlikely to do. There was no relevant element of deception (the use of an alias Gmail address and an alias Facebook account were immaterial). This was a case of “mere opportunity” where Mr Korpi did no more than take up the facilities that were on offer. His conduct was not improper for the purposes of s 138 of the Evidence Act.

74 Brisbane Poker also alleges that Mr Korpi acted “in contravention of an Australian law” for the purposes of s 138 of the Evidence Act. The allegation seems to be that Mr Korpi contravened s 15(2A) of the IGA through a contravention of s 92(1)(b) or (d) of the Regulatory Powers (Standard Provisions) Act.

75 Brisbane Poker has not explained precisely how Mr Korpi may have aided, abetted, counselled or procured a contravention of s 15(2A) or been knowingly concerned in, or party to a contravention of that provision. In any event, the submission cannot be accepted in circumstances where, as I will discuss later in these reasons, the provision of a “prohibited interactive gambling service” did not require anyone to actually purchase chips or actually play poker. In Giorgianni v The Queen (1985) 156 CLR 473 (Giorgianni) at 493, Mason J, referring to words including “aiding” and “abetting”, cited the opinion of Cussen ACJ in R v Russell [1933] VLR 59 at 67 that:

All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.

76 There was some argument about whether Mr Korpi can be said to have “procured” a contravention. In Australian Competition and Consumer Commission v Master Wealth Control Pty Ltd [2024] FCA 344, Jackman J explained at [43] that, “A person procures a contravention if he or she causes it to be committed, persuades the principal to commit it, or brings about its commission”, relying on State of Western Australia v Bourke (No 3) [2010] WASC 110 at [18]-[19].

77 The facility to play and gamble on poker using the PPPFish Clubs and the PPPFish Website was provided before and independently of any relevant action taken by Mr Korpi. Mr Korpi’s actions in purchasing chips and playing poker using the existing facility did not result in or contribute to the provision of the service or any contravention of the IGA. Accordingly, Mr Korpi could not have contravened s 15A(2A) of the IGA.

78 Further, in Mallan v Lee (1949) 80 CLR 198 (Mallan), Dixon J explained at 216 that:

There is a number of cases which show that the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created.

79 In Giorgianni, Mason J stated at 491 that the doctrine of secondary participation may be inapplicable, “to a person of a class whom the substantive offence is designed to protect”.

80 Both Dixon J in Mallan and Mason J in Giorgianni cited R v Tyrell [1894] 1 QB 710, a case concerned with whether it was an offence for a girl between the ages of 13 and 16 to aid and abet a man in the commission of the misdemeanour of having unlawful carnal knowledge of her, or to solicit and incite a man to commit that misdemeanour. Lord Coleridge (Mathew J agreeing) held at 712 that:

…[I]t is impossible to say that the Act…can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.

[See also R v Whitehouse [1977] QB 868 at 874].

81 The purposes of a civil penalty regime under the IGA were explained in the Explanatory Memorandum to the Interactive Gambling Amendment Bill 2016 (Cth) (the 2016 Explanatory Memorandum). The 2016 Explanatory Memorandum stated that the Australian Government had commissioned a review to, “investigate the impacts of illegal offshore wagering on Australia, measures to mitigate its effects, and the efficacy of consumer protection controls”. The review found, relevantly, that offshore wagering has adverse effects for Australian wagering, hospitality and sporting industries, problem and at-risk gamblers, consumers and government. The 2016 Explanatory Memorandum indicated that the introduction of a civil penalty regime, enforced by the ACMA, was amongst the measures to be introduced in response.

82 It is apparent that a substantial purpose of s 15(2A) of the IGA is to protect consumers from certain interactive gambling services. In that context, it is quite improbable that the legislative intention could be that a consumer contravene that provision as an ancillary by merely using a gambling service provided by another entity. In this case, Mr Korpi merely used facilities that were already in existence. He was acting just as any other consumer could when he created an account on the PPPoker App, arranged the purchase of chips on the PPPFish Website and used the chips to play poker in an online club. Although he engaged in those activities for the purpose of the investigation, he did no more than any other consumer was encouraged to do.

83 In these circumstances, it cannot be found that Mr Korpi aided, abetted, counselled or procured any contravention of s 15(2A), nor that he was knowingly concerned in, or party to, any such contravention.

84 The discretion to exclude Mr Korpi’s evidence under s 138 of the Evidence Act does not arise. His affidavit will be admitted into evidence.

85 Mr Korpi was not required for cross-examination and I accept his evidence.

Whether Jones v Dunkel inferences ought to be drawn in respect of the absence of evidence from Mr Jones

86 Mr Jones did not give evidence. The absence of any evidence from Mr Jones was not explained. Mr Jones was, of course, the sole director and shareholder of Brisbane Poker.

87 The ACMA submits that inferences ought to be drawn under the principles in Jones v Dunkel (1959) 101 CLR 298, whereas Mr Jones and Brisbane Poker submit that such inferences are not available in a civil penalty proceeding where penalty privilege is claimed.

88 In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the plurality explained:

[63]    The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn…

[64]    The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party…

(Citations omitted).

89 In Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 (GetSwift), Lee J observed at [126] that the availability of such inferential reasoning in the context of civil penalty proceedings has been the subject of “some discussion”. However, his Honour concluded that authority supports the proposition that Jones v Dunkel inferences are applicable to proceedings that involve a claim for the imposition of a civil penalty and reliance on privilege against civil penalties, citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia at [76], Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257 at [147] and Adler v Australian Securities and Investments Commission (2003) 179 FLR 1 at [659]. I respectfully agree.

90 It is open to draw Jones v Dunkel inferences in the present proceeding. I draw an inference that Mr Jones’ evidence would not have assisted himself or Brisbane Poker.

91 Mr Jones’ absence also allows me to have greater confidence in drawing inferences that are unfavourable to Mr Jones and Brisbane Poker in circumstances where Mr Jones was likely to have been in a position to cast light on whether such inferences ought to be drawn. That has particular relevance to determining whether Mr Jones and Brisbane Poker “provided” the PPPFish Service and the Shuffle Gaming Service, where the ACMA’s case rests substantially upon the inferences drawn from the available evidence.

92 I am conscious that the facts proved must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: Jones v Dunkel at 304 (Dixon J), Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162 (Stephen J), Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 at [34].

Whether Mr Jones and Brisbane Poker contravened s 15(2A) of the IGA by providing the PPPFish Service

93 The ACMA alleges that Mr Jones and Brisbane Poker contravened s 15(2A) of the IGA by providing the PPPFish Service and the Shuffle Gaming Service.

94 I will consider allegations in respect of the PPPFish Service before turning to consider the Shuffle Gaming Service.

95 The PPPFish Service is alleged to have been provided between 2 March 2020 and 6 January 2021 through the PPPFish Website and clubs on the PPPoker App with the identification numbers 700000, 1071550 and 910440.

96 It is necessary to determine whether the PPPFish Service was (1) a “gambling service” within s 4 of the IGA; (2) a “prohibited interactive gambling service” within s 5 of the IGA; and, (3) “provided” by Mr Jones and/or Brisbane Poker.

Whether the PPPFish Service was a “gambling service” within s 4 of the IGA

97 I will start by considering whether the PPPFish Service was a “gambling service” within s 4 of the IGA.

98 The ACMA relies on s 4(e) and (f) of the IGA, where “gambling service” is defined to include:

(e)    a service for the conduct of a game, where:

(i)    the game is played for money or anything else of value; and

(ii)    the game is a game of chance or of mixed chance and skill; and

(iii)    a customer of the service gives or agrees to give consideration to play or enter the game; or

(f)    a gambling service (within the ordinary meaning of that expression) that is not covered by any of the above paragraphs.

99 I accept the submission of Brisbane Poker that for the purposes of s 4(e), each of paragraphs (i), (ii) and (iii) must be satisfied.

100 In Lottoland Australia Pty Ltd v Australian Communications and Media Authority (2019) 100 NSWLR 328 (Lottoland), Sackar J at [158] approached the construction of key terms in the IGA in the following way:

The form of the important definitions invites, in my view, the use of the ordinary and natural meaning of the key words. I am not persuaded that the legislature intended to prescribe any technical or specific definition to the key terms.

101 I respectfully agree with that approach.

102 The word “game” is defined in s 4 of the IGA to include “an electronic game” but is not otherwise defined.

103 In Lottoland, Sackar J considered the meaning of the word “game” as used in s 8A(5)(c)(iv) and (v) of the IGA. Subsection (iv) referred to a, “service for the conduct of a game covered by paragraph (e) of the definition of gambling service in section 4”. His Honour held at [68] that the playing of a “game” requires, “positive action on the part of the participant”, and, “a level of interaction in the sense that a participant’s actions to some extent affect the outcome of the activity”. His Honour decided at [166] that a product where the customer chose a number and would win if that number happened to match a number that was effectively determined by random chance, did not involve the playing of a game.

104 Mr Korpi gave evidence that he directed the purchasing of chips on the PPPFish Website and that he played poker in Club 910440 using those chips. The style of poker played was “No Limit Texas Hold’em”.

105 The ACMA relies on an expert report of Professor Schoenberg which was admitted into evidence without objection. His expertise encompasses the playing of poker. Professor Schoenberg’s report indicates that poker is a contest between players. The game involves playing cards being dealt to each player, which the other players cannot see, from a 52-card deck. Further cards are then dealt or exposed and one or more round ensues of the players betting chips upon the outcome. The hand is won by the player who holds the best five-card combination after the last betting round. That player wins all the chips in the pot and the others lose the chips they have bet.

106 Professor Schoenberg states that No Limit Texas Hold’em is the world’s most popular and standard form of poker. His view is that it is a game involving approximately 50% luck and 50% skill. From this evidence, I am satisfied that No Limit Texas Hold’em is a “game” within s 4(e) of the IGA.

107 Mr Korpi deposes that when he joined Club 910440, he received a pop up with the heading “Club Profile” which read, “Welcome to PPPFish! Use our website www.pppfish.com to buy chips…”. From that notification and Mr Korpi’s description of purchasing chips and using the chips to play poker in Club 910440, I infer that players were required to purchase chips from the PPPFish Website in order to play poker in Club 910440.

108 The Macquarie Dictionary relevantly defines “service” as “an act of helpful activity”. Club 910440 and the PPPFish Website together provided a mechanism or facility by which members of the public were enabled to play poker online for money, including by purchasing chips and betting their chips on each hand. I find this was a “service”.

109 The ACMA contends that the definition of “gambling service” in s 4(e) does not require proof that a game has in fact been played for money, or that a customer has in fact given, or has agreed to give, consideration to play or enter the game. Mr Jones and Brisbane Poker submit, as I understand it, that the word “conduct” in s 4(e) requires that someone must actually play a game or give consideration. Their submission seems to be that the word “conduct” refers to the behaviour or actions of a player. However, that submission takes the word “conduct” in isolation and out of context of the whole phrase “a service for the conduct of a game”. In that context, “conduct” refers to the enabling or facilitating of the playing of a game.

110 In Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108 at [156], O’Bryan J (Besanko and Lee JJ agreeing) noted that the word “for” is a common preposition which expresses a relationship between two words, where its meaning (being the nature of the relationship expressed) will be governed by the nouns or verbs it connects. In s 4(e), the word “for” is used to require a connection between “a service” with “the conduct of a game”. I consider that the definition of “for” in the Macquarie Dictionary that most matches this context is “suit the purposes or needs of”. In other words, the service must be one that has the purpose of enabling or facilitating the playing of a game.

111 Consequently, satisfying the definition of “gambling service” in s 4(e) requires evidence that the service is designed to enable or facilitate the playing of a game that has the characteristics described in subparagraphs (i), (ii) and (iii). There need not necessarily be evidence that a customer has actually played the game for money (referring to s 4(e)(i)), or that a customer has in fact given, or has agreed to give, consideration to play or enter the game (referring to sub-paragraph (iii)). However, I consider that the word “service” requires evidence that the game is actually able to be played. A facility cannot be considered a “service” if the facility does not work and the game is unable to be played. Ordinarily, this will be proved by proving that someone actually played the game, whether through direct evidence or inference.

112 There is evidence that Mr Korpi did play poker for chips representing a monetary value in Club 910440 on the PPPoker App and did purchase the chips through the PPPFish Website.

113 Turning to s 4(e)(i), the game that was played was for poker chips purchased by customers, which were redeemable for money or bitcoin on the PPPFish Website. I am satisfied that within s 4(e)(i), the game of poker played in Club 910440 was, “a game played for money or anything else of value”.

114 In respect of s 4(e)(ii), the ACMA relies in part on the 2016 Explanatory Memorandum which referred to “poker” played for money or anything else of value as a “prohibited service” under the IGA. However, the question of whether the poker played in Club 910440 was a game of mixed chance and skill is a question of fact. That question must be determined according to the evidence. While a statement in an explanatory memorandum can be used to interpret a statutory provision, the ACMA has not referred to any authority indicating that such a statement can be used as evidence of a fact.

115 However, I am satisfied by Professor Schoenberg’s evidence that the game of poker played in Club 910440 was a game of mixed chance and skill within s 4(e)(ii).

116 The next question is whether within s 4(e)(iii), “a customer of the service gives consideration to play or enter the game” played in Club 910440.

117 The word “consideration” seems to be used in the same way as under the law of contract. In Beaton v McDivitt (1987) 13 NSWLR 162, it was explained at 168:

By our law, consideration is an essential requirement for an enforceable contract. Without consideration, a promise is unenforceable at law. The modern theory of consideration has arisen from the notion that a contract is a bargain struck between the parties by an exchange. By that modern theory, consideration must be satisfied in the form of a price in return for the promisor's promise or a quid pro quo. The price can be in the form of an act, forbearance or promise. In Pollock on Contracts, 13th ed, (1950) at 133 Sir Frederick Pollock, in words adopted by Lord Dunedin in Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd [1915] AC 847 at 855, expressed the idea of consideration as the “price in return” in the following way:

An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.

118 Customers were required to purchase chips from the PPPFish Website in exchange for being permitted to play poker. Mr Korpi’s evidence is that he in fact did so. I also infer that customers purchased chips in order to play poker from the fact that between 2 March 2020 and 10 March 2021, there were approximately 138,000 deposits made into the bank accounts held by Brisbane Poker or Mr Jones, most with a six-digit reference number suggesting a connection to the PPPFish Service. Section 4(e)(iii) is satisfied.

119 I find that Club 910440 together with the PPPFish Website, was a “service for the conduct of a game” within s 4(e) of the IGA.

120 In case I am wrong in that conclusion, I will consider whether Club 910440 together with the PPPFish Website was, within s 4(f), “a gambling service (within the ordinary meaning of that expression) that is not covered by any of the above paragraphs”.

121 The ACMA relies on the following passage from the Explanatory Memorandum to the Interactive Gambling Bill 2001 (Cth) (the 2001 Explanatory Memorandum) at 27:

Paragraph (f) is intended to ensure that any gambling service not specifically provided for in paragraphs (a) – (e) is subject to the Bill.

Guidance as to the ordinary meaning of “gambling” can be obtained from the Encyclopedia Britannica which defines “gambling” as “the betting or staking of something of value, with consciousness of risk and hope of gain, on the outcome of a game, a contest, or an uncertain event whose result may be determined by chance or accident or have an unexpected result by reason of the bettor’s miscalculation.”

122 The ACMA submits the PPPFish Service comes within that ordinary meaning of “gambling service”.

123 The game of Texas Hold’em that was played in Club 910440 involved players betting or staking valuable chips on the outcome of each hand. It is apparent that players would understand that the outcome of each hand was uncertain and they would either win or lose their bet. Professor Schoenberg’s evidence indicates that the game involved was about 50% skill and 50% chance. The fact that a substantial element of skill is involved does not, in my view, remove Texas Hold’em from the description of a gambling service.

124 Club 910440 together with the PPPFish Website provided a mechanism or facility by which members of the public could play poker online, including by purchasing chips for money and then betting their chips. If it were necessary to determine the issue, I would find that there was a “gambling service” within the ordinary meaning of that expression in s 4(f) of the IGA.

125 So far, I have not considered the clubs on the PPPoker App numbered 700000 and 1071550. Mr Korpi did not join or enter these clubs and did not play poker within them. The ACMA’s allegation is that they were part of the “gambling service”, along with Club 910440. The question of whether they were part of the gambling service involves what inferences may legitimately be drawn from the available evidence.

126 I reiterate that there need not necessarily be evidence that a customer has actually played the game for money (referring to s 4(e)(i)), or that a customer has in fact given, or has agreed to give, consideration to play or enter the game (referring to sub-paragraph (iii)). However, there must be evidence that the game was able to be played.

127 When Mr Korpi entered the PPPFish Website, he observed that it displayed the “Club ID’ numbers 700000, 1071550 and 910440. He understood these be the identification numbers of clubs on the PPPoker App. Mr Korpi created an account on the PPPoker App and applied to join Club 910440 and, after his application was accepted, did join that club.

128 Mr Korpi could instead have applied to join either of the other two clubs. Having regard to the fact that the three club identification numbers were displayed together and to Mr Korpi’s evidence concerning playing poker in Club 910440, it is reasonable to infer that he would similarly have been accepted, and he could have then purchased chips from the PPPFish Website and played poker in those clubs. Brisbane Poker made no submission that such an inference was not available.

129 I find there was a “gambling service” provided through the PPPFish Website and the PPPFish Clubs on the PPPoker App, having club identification numbers 700000, 1071550 and 910440.

130 The ACMA alleges that the gambling services were provided between 2 March 2020 and 6 January 2021. The ACMA seems to have chosen 2 March 2020 as the starting date for its allegations as that was the date on which the last of seven bank accounts operated by Brisbane Poker or Mr Jones was opened. Mr Korpi’s evidence about the operation of the PPPFish Service relevantly commenced from 8 October 2020. Before that date, there is only the evidence of complaints of persons who were not called to give evidence at the trial. Precisely what evidence was relied upon in respect of the period between 2 March 2020 and 8 October 2020 and how the ACMA sought to make out its case in respect of that period was not explained. I am not prepared to infer that a gambling service was provided prior to 8 October 2020.

Whether the PPPFish Service was a “prohibited interactive gambling service” within s 5 of the IGA

131 Having determined that the PPPFish Service was a “gambling service”, the next issue is whether that service was a “prohibited interactive gambling service” within the meaning of that term within s 5 of the IGA.

132 Section 5 of the IGA provided at the time of the alleged contraventions:

5 Prohibited interactive gambling services

(1)    For the purposes of this Act, a prohibited interactive gambling service is a gambling service, where:

(a)    the service is provided in the course of carrying on a business; and

(b)    the service is provided to customers using any of the following:

(i)    an internet carriage service;

(ii)    any other listed carriage service;

(iii)    a broadcasting service;

(iv)    any other content service;

(v)    a datacasting service.

…

Excluded services

(3)    For the purposes of this Act, none of the following services is a prohibited interactive gambling service:

(a)    a telephone betting service;

(aa)    an excluded wagering service (see section 8A);

(ab)    an excluded gaming service (see section 8B);

(aba)    a place based betting service (see section 8BA);

(ac)    a service that has a designated broadcasting link (see section 8C);

(ad)    a service that has a designated datacasting link (see section 8C);

(ae)    an excluded lottery service (see section 8D);

(b)    a service to the extent to which it relates to the entering into of contracts that are financial products within the meaning of Chapter 7 of the Corporations Act 2001;

(ba)    a wholesale gambling service;

(bb)    a trade promotion gambling service (see section 8BB);

(c)    an exempt service (see section 10).

133 For a “gambling service” to be a “prohibited interactive gambling service”, the service must be (1) provided in the course of carrying on a business; (2) provided to customers using, relevantly for the present case, an “internet carriage service”; and (3) not be an “excluded service”.

134 A “business” is defined in s 4 of the IGA to include:

…a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis. To avoid doubt, the fact that a Club or association provides services to its members does not prevent those services from being services provided in the course of carrying on a business. 5(3).

135 The 2001 Explanatory Memorandum stated that:

The settled legal meaning of ‘carrying on a business’ is to conduct some form of commercial enterprise, systematically or regularly, with a view to a profit: Hyde v Sullivan [1956] SR (NSW) 113.

136 The ACMA relies on the following evidence to submit that the PPPFish Service was provided in the course of carrying on a business:

The PPPFish Service was provided through a corporate entity, Brisbane Poker.

The PPPFish Service was offered to the public at large, being accessible online through the PPPFish Website.

The PPPFish Website contained various indicia of a business, including the use of Referrer/Promo codes, a customer support function via a chat feature, promotions such as tournaments and information on becoming an agent.

Money was paid by customers for the purchase of chips and a portion of the pot was kept by the club as a “rake”.

At least one person, Mr Buttigieg, was engaged as an agent for the PPPFish Clubs to promote the PPPFish Service on social media platforms.

Between 2 March 2020 and 6 January 2021, total customer deposits minus total payments to the PPPoker App came to $13,598,242. In that period, $93,136 was paid from bank accounts held by Brisbane Poker to Mr Jones.

Between 2 March 2020 and 10 March 2021 (i.e. a wider period including Shuffle Gaming), substantial sums of money were taken out of the business: $131,136 paid to Mr Jones; $2,125,630 was withdrawn in cash from ATMs; and transfers of approximately $2.8 million were made from Mr Jones’ PPPFish CBA account to another CBA account.

137 I accept that these are indicia of the operation of a business. I find that the gambling service was, “a venture or concern in trade or commerce”, and the service was, “provided in the course of carrying on a business”.

138 The ACMA alleges that the PPPFish Service was provided to customers using “an internet carriage service”. At the time of the alleged contraventions, the term “internet carriage service” was defined in s 4 of the IGA as, “a listed carriage service that enables end-users to access the internet”. A “listed carriage service” was then defined as having the same meaning as in the Telecommunications Act 1997 (Cth).

139 Section 16 of the Telecommunications Act defines “listed carriage services” as a “carriage service” between at least one point in Australia and another point that may be in or outside of Australia. Section 7 of the Telecommunications Act defines a “carriage service” as a “service for carrying communications by means of guided and/or unguided electromagnetic energy”.

140 The 2001 Explanatory Memorandum states that, “A listed carriage service is defined in section 16 of the Telecommunications Act and is intended to include a service for the carriage of Internet communications”.

141 In Axicom Inbuilding Solutions Pty Ltd v Australian Communications and Media Authority [2023] FCA 1069, Perry J at [100] indicated that the ordinary meaning of “telecommunications”, namely, “transmission or exchange of information over a distance using electrical, radio, optical, or other electromagnetic signals, as by telegraph, telephone, radio, television, (in later use) the internet, etc”, accords with the definition of a “listed carriage service” in the Telecommunications Act.

142 The internet was the means by which the PPPFish Service was provided through clubs on the PPPoker App and through the PPPFish website. I am satisfied that the service was provided to customers using an internet carriage service.

143 I find that the PPPFish Service was a “prohibited interactive gambling service” within s 5 of the IGA.

Whether the PPPFish Service had an Australian-customer link

144 Section 15(2A) requires that the relevant prohibited interactive gambling service have “an Australian-customer link”. That expression, as defined in s 8, requires that, “any or all of the customers of the service are physically present in Australia”.

145 Brisbane Poker disputes that the ACMA has established an Australian-customer link. It may be noted that while the ACMA relies on the fact that complaints were made by several persons who are described as “Australian residents” and who purchased chips with money transferred from Australian bank accounts, the ACMA has not produced affidavits from those persons indicating they were physically in Australia when they made those transactions and played poker using the PPPFish Service.

146 Brisbane Poker submits that a “customer”, which is not defined in the IGA for the purposes of establishing an Australian-customer link, is a person who has actually played the game while physically in Australia. However, I consider there are contextual matters that support a wider meaning for the term.

147 Section 15(4) requires that, in determining whether the person could, with reasonable diligence, have ascertained that the service had an Australian-customer link, a number of enumerated matters are to be taken into account. The word “customers” is used repeatedly in that provision. For example, paragraph (b) asks whether customers were required to enter into contracts with any express condition that the customer was not to use the service if the customer was physically present in Australia; paragraph (c) asks whether customers were required to provide personal details and, if so, under paragraph (d) whether those details suggested that the customer was not physically present in Australia. These paragraphs suggest that a person can be a “customer” at a point in time before they have used the service to play a game.

148 Further, the definition of “gambling service” in s 4(e)(iii) refers to a service for the conduct of a game where, “a customer of the service gives or agrees to give consideration to play or enter the game”. This paragraph indicates that a person is already a customer at the time when they give or agree to give consideration to play or enter the game, that is, before the point when they actually play the game.

149 In any event, it is not disputed that Mr Korpi’s evidence indicates that he played poker using the PPPFish Service while he was physically in Australia. I have rejected Brisbane Poker’s objection to the admission of Mr Korpi’s affidavit.

150 Section 15(2B) of the IGA provides that:

A person who contravenes subsection (2A) commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).

151 The parties made no submissions about the appropriate construction of s 15(2B). The provision seems to suggest that once it is proved that a prohibited gambling service is provided, the contravention continues until the service ceases to be provided and, further, that the provider is taken to commit a separate contravention each day of that period. If that is correct, it may only be necessary to prove there is an Australian-customer link for one day during the period in which the gambling service is operating, rather than on each day during that period. In the absence of argument, it would be preferable not to determine whether s 15(2B) operates in such a way and, as it turns out, it is unnecessary to do so.

152 Mr Korpi arranged for chips to be purchased and he played poker using the chips on 8 October 2020 in Club 910440. He did not play poker again after that. He deposes that he had six chips left. On 14 January 2021, Mr Korpi logged into the PPPFish Website and noted that his account had “migrated” to the Shuffle Gaming Service and that he still had six chips. I infer from this evidence that he had chips that could have been cashed out throughout the period from 8 October 2020 to 14 January 2021.

153 I have indicated that a person is a “customer” within s 8 of the IGA when they give or agree to give consideration to play or enter the game. Mr Korpi became a customer on 8 October 2020 when he purchased chips from the PPPFish Website that could be used to play poker in the related online clubs. He continued to hold those chips available for use to play poker within the PPPFish Service. In my opinion, he continued to agree to give consideration to play poker using the PPPFish Service each day until at least 14 January 2021, even though he did not actually play poker. It was not necessary for him to purchase chips each day. Further, since a fee was taken out of each pot, he agreed to give consideration for playing poker using the PPPFish Service.

154 Mr Korpi carried out the investigations he deposes to in the course of his employment at the ACMA, during which he was located in Sydney. I infer that Mr Korpi was physically present in Australia in the period from 8 October 2020 to at least 6 January 2021 during which time he was a customer of the PPPFish Service. I find that the PPPFish Service had an Australian-customer link each day between 8 October 2020 and 6 January 2021.

155 The ACMA also relies upon evidence, summarised in Mr Potter’s report, that between 2 March 2020 and 10 March 2021, there were approximately 138,000 deposits made to bank accounts held by Brisbane Poker or Mr Jones from about 5,677 individual players from Australian banks. Of those transfers, most included a six-digit number or reference suggesting a connection to the PPPFish Service. Further, many of the transfers were made using “Osko”, an Australian payment system. The ACMA submits that it should be inferred as a matter of “common experience” that at least some of those customers were physically in Australia on each day in the period up to 6 January 2021.

156 In making this submission, the ACMA relies on the approach taken in Australian Securities and Investments Commission v Dover Financial Advisors Pty Ltd [2019] FCA 1932. In that case, the respondents admitted that some 19,000 clients were provided with a particular Client Protection Policy, but contended there was no evidence that any individual client clicked on the link to the policy or had been sent a paper version of the policy. Justice O’Bryan found at [79]:

Those contentions are correct, as far as they go. However, I consider it open to infer, and I do infer, that at least some clients clicked on the link and some were sent a paper copy of the Client Protection Policy and that, as a consequence, some clients read the Client Protection Policy. I draw those inferences from the primary facts that have been established and on the basis of common experience.

157 In view of the sheer number of transactions made from Australian bank accounts using an Australian payment service and the number of persons making those transfers, I infer that on each day between 8 October 2020 and 6 January 2021, at least some of those transfers must have been made while the person making the transfer was physically located in Australia. It is highly improbable that every transfer made on any particular day was made by persons who were all physically outside of Australia.

158 I find that the PPPFish Service had an Australian-customer link each day between 8 October 2020 and 6 January 2021.

Whether the PPPFish Service was “provided” by Mr Jones and/or Brisbane Poker

159 It is necessary for the ACMA to prove that the PPPFish Service was “provided” by Mr Jones and/or Brisbane Poker within the meaning of that expression in s 15A(2) of the IGA.

160 The word “provided” is not defined in the IGA. The relevant meaning of “provide” given in the Macquarie Dictionary is “to furnish or supply”. In the context of the provision of an online gambling service, the word “provided” can appropriately be understood to refer to operating a facility or mechanism for playing a game.

161 Brisbane Poker submits that the ACMA has failed to allege that Mr Jones or Brisbane Poker provided the PPPFish Website or any of the PPPFish Clubs and, accordingly, has not alleged that they “provided” a gambling service. However, the ACMA points to paragraph three of its Concise Statement which states that a service consisting of the PPPFish Website and three private poker clubs on the PPPoker App “was provided by Brisbane Poker Pty Ltd” and that Mr Jones, “also contravened s 15(2A) either on a principal or ancillary basis”. I accept that the ACMA has alleged that Mr Jones and Brisbane Poker provided the PPPFish Service.

162 In their Concise Response, Mr Jones and Brisbane Poker assert that:

Neither [Mr Jones] nor [Brisbane Poker] had any connection with any of (i) the PPPFish website, (ii) the “three PPPFish private poker clubs” or any other poker clubs or (iii) the playing of online poker games and otherwise do not admit the allegations and put the [ACMA] to proof.

163 Mr Jones and Brisbane Poker admit they provided bank accounts through which players could purchase chips and cash them in. They submit that the ACMA’s allegation of a connection with the PPPFish Website is that the Website “directed” customers to bank accounts provided by Mr Jones and Brisbane Poker. Brisbane Poker argues a common feature of websites generally is that they refer users to external pages or other websites, but it is not alleged that Mr Jones and Brisbane Poker were involved in establishing or maintaining the links to any bank accounts on the PPPFish Website.

164 Brisbane Poker submits that the ACMA does not contend that Mr Jones and Brisbane Poker were involved with either (1) the operation of games of online poker in private clubs or (2) the provision of the PPPoker App. It is submitted that the only allegation appears to be in respect of the provision of “associated” or “enabling” services which are not “prohibited interactive gambling service[s]” under the IGA.

165 Brisbane Poker submits that the ACMA’s contention that the provision of bank accounts through which people could purchase chips and cash them in was part of a “gambling service” is manifestly absurd or unreasonable. It is submitted that otherwise the entities that might contravene s 15(2A) of the IGA would include the banks themselves, hardware and software providers of servers used to host online games and the internet service providers hosting the interactive games.

166 Brisbane Poker points to the 2001 Explanatory Memorandum at 27 which stated:

A service that carries a gambling service, such as an Internet carriage service does not itself become a gambling service for the purposes of the Bill merely because the Internet carriage service carries a gambling service. A service that is ancillary to a gambling service such as a billing service for a gambling service is not a gambling service for the purposes of the Bill, and therefore is not an ‘Australian-based interactive gambling service’.

167 Brisbane Poker submits in respect of the services alleged to have been provided by Mr Jones and Brisbane Poker, that:

(1) they were at best “ancillary” services and not services for the conduct of the game;

(2) it is not alleged that Mr Jones and/or Brisbane Poker were the providers of the content of the alleged service; and

(3) there is no offence which would result in prosecution where the only services provided are ancillary unless the person is also the provider of the content of such a service, which is not alleged.

168 Brisbane Poker also submits that s 15(4)(d) of the IGA (referring to “network data” that indicates customers were physically outside Australia) is illuminating in respect of the legislative intention. It is submitted that the mere operation of bank accounts could never have been associated with access to “network data”, the only persons having such network data being the operators of the online games. It is submitted that there is a clear legislative intent that the reference to “service” in the IGA was intended to refer to the provision of the content of the game itself.

169 To reiterate, the ACMA alleges that Mr Jones and Brisbane Poker provided the PPPFish Service, which relevantly consists of the PPPFish Clubs and the PPPFish Website. The ACMA does not point to any direct evidence proving that Mr Jones and Brisbane Poker provided the PPPFish Service. However, the ACMA submits that such a conclusion should be drawn from inferences available on the evidence.

170 The ACMA’s reasoning seems to be in the form of a syllogism. The major premise is that the entities providing the PPPFish Website were also the providers of the PPPFish Clubs. The minor premise is that Mr Jones and Brisbane Poker provided the PPPFish Website. The conclusion is that Mr Jones and Brisbane Poker provided the gambling service consisting of the PPPFish Clubs and the PPPFish Website.

171 I will first examine whether the evidence establishes that Mr Jones and Brisbane Poker provided, in the sense of operated, the PPPFish Website.

172 Mr Korpi gave evidence that on 8 October 2020 he logged on to the PPPFish Website and selected the “Purchase Chips” tab. He was redirected to a page with the heading “Select Payment Method”. The options included purchase via bank transfer or bitcoin. Customers wishing to purchase chips by bank transfer could transfer money to one of seven bank accounts which could be selected from a drop-down menu. The bank accounts were with ANZ, Bankwest, NAB, St George, Westpac, Bendigo and CBA respectively (the PPPFish Bank Accounts). A page headed “Bank Transfer” would appear showing the amount selected, the account name “BP Merchandise”, BSB number, account number and a six-digit reference number.

173 The CBA account was held by Mr Jones. The other six bank accounts were held by Brisbane Poker and the contact details for each such account included the email address “rhys.jones73@outlook.com”.

174 The “Bank Transfer” payment option on the PPPFish Website contained the instruction, “Once this is done, take a screenshot of the receipt and attach it below, then click Submit” (emphasis in original). The page also contained the notation, “Please note that if your funds do not appear in our account instantly, we will send chips at our own discretion no matter how much proof you can provide”.

175 The words “our account” referred to each of the PPPFish Bank Accounts. The word “we” referred to the persons or entities operating the PPPFish Website. The representation made was, relevantly, that the persons or entities who held each of the bank accounts operated the PPPFish Website and were responsible for supplying the chips that had been paid for.

176 Further, on the PPPFish Website, customers could cash out their chips by selecting their PPPoker Account, entering the number of “Chips to Cash Out (AUD)” and selecting the “Cash Out Method”, being either “Bank Transfer” or “Crypto”. Between 2 March 2020 and 6 January 2021, 1,044 individual customers who had made deposits into any of the PPPFish Bank Accounts also received payments from those bank accounts. Since customers who cashed out their chips through the PPPFish Website were paid from the PPPFish Bank Accounts, Brisbane Poker and Mr Jones had to know which customers had cashed out their chips, their bank details and the relevant amounts in order to make the payments.

177 I find that Brisbane Poker and Mr Jones, as the sole director of Brisbane Poker, operated the PPPoker Website and the service it provided, including selling and cashing out poker chips.

178 I will next examine whether the operators of the PPPFish Website, namely Brisbane Poker and Mr Jones, were also the operators of the PPPFish Clubs.

179 The PPPFish Website displayed three different “Club ID” numbers, 910440, 700000 and 1071550. Mr Korpi deposes that the PPPFish Website provided instructions about how to register and prompted users to download the PPPoker App and join one of the clubs. He then applied on the PPPoker App to join Club 910440. His application was approved by “PPPfish.com 3”.

180 Mr Korpi’s evidence demonstrates that customers were required to link their account on the PPPoker App to their account on the PPPFish Website. They were required to purchase chips from the PPPFish Website in order to play in Club 910440 on the PPPoker App. Customers who purchased chips on the PPPFish Website had chips credited to their accounts in Club 910440. Customers could cash out their chips through the PPPFish Website.

181 When a customer would enter the PPPFish lobby on the PPPoker App, a notice would appear stating, “Welcome to PPPFish! Use our website www.pppfish.com to buy chips”. The use of the word “our” was a representation that the operators of the clubs available in the PPPFish lobby, including Club 910440, were also the operators of the PPPFish Website.

182 Between 2 March 2020 and 6 January 2021, a total of 1,742 payments, totalling $3,613,430, were made from PPPFish Bank Accounts to the third-party provider of the PPPoker App. The appropriate inference is that these payments were for the operation of the PPPFish Clubs on the PPPoker App.

183 These matters demonstrate that the operation of Club 910440 within the PPPoker App was intertwined with the operation of the PPPFish Website and that the same entities operated both.

184 I am unable to accept the submission made by Mr Jones and Brisbane Poker that the services they provided were merely “ancillary” services and not services for the conduct of the game. Their services extended beyond the mere provision of a facility for buying chips and are not comparable to the position of the banks whose accounts were used for the transfer of money to buy chips. The evidence amply demonstrates that Mr Jones and Brisbane Poker operated an integrated service that enabled customers to purchase chips from the PPPFish Website, play poker using those chips within Club 910440 and to also cash out their chips.

185 The next question is whether Mr Jones, as well as Brisbane Poker, provided the PPPFish Service.

186 In Australian Securities and Investments Commission v Narain (2008) 169 FCR 211, the Full Court held at [96] that the relevant question for assessing whether an officeholder of a company is personally liable for a contravention is whether, “all of the elements of the contravention are made out against the individual or whether he or she merely acted as a corporate organ, binding the company but not the person individually”. That is a question of fact, to be determined by the level of personal involvement an individual had in the conduct that is in question: see also GetSwift at [2125]-[2126] (Lee J).

187 Mr Jones personally held one of the bank accounts used to facilitate the purchase and cashing out of chips. Mr Jones was the sole contact listed for the PPPFish Bank Accounts held by Brisbane Poker. He was also the sole signatory for all the bank accounts, other than perhaps the NAB account. In addition, Mr Jones was the sole director and shareholder of Brisbane Poker. I infer the actions of Brisbane Poker in providing the PPPFish Service were carried out by Mr Jones. In these circumstances, Mr Jones also provided the PPPFish Service.

188 In any event, I would be satisfied that Mr Jones is liable for Brisbane Poker’s contraventions pursuant to s 92(1)(b) and (d) of the Regulatory Powers (Standard Provisions) Act by aiding, abetting and being knowingly concerned in the contraventions by Brisbane Poker. It is necessary for the ACMA to prove that Mr Jones intentionally participated in the contravention with the requisite intention, requiring knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a contravention: Yorke v Lucas (1985) 158 CLR 661 at 667; Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176]-[178]; Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 at [13].

189 For the reasons I have already mentioned (namely, that one of the bank accounts was held by Mr Jones himself, he was the sole contact and signatory for most of the PPPFish Bank Accounts and the actions in providing the PPPFish Service were taken by Mr Jones), I am satisfied Mr Jones aided, abetted and was knowingly concerned in the contraventions of s 15(2A) of the IGA by Brisbane Poker.

Conclusions concerning whether s 15(2A) of the IGA was contravened through the provision of the PPPFish Service

190 I have found that both Mr Jones and Brisbane Poker contravened s 15(2A) of the IGA by providing a prohibited interactive gambling service that had an Australian-customer link. The service was provided through the PPPFish Website and the PPPFish Clubs within the PPPoker App.

191 I am not satisfied that the PPPFish Service was provided prior to 8 October 2020. I am satisfied that the contraventions occurred between 8 October 2020 and 6 January 2021. Pursuant to s 15(2B) of the IGA, Mr Jones and Brisbane Poker committed a separate contravention of s 15(2A) in respect of each day in that period.

Whether Mr Jones and Brisbane Poker contravened s 15(2A) of the IGA by providing the Shuffle Gaming Service

192 The ACMA alleges that between 6 January and 10 March 2021, Mr Jones and Brisbane Poker provided a prohibited interactive gambling service through the Shuffle Gaming Service.

193 The Shuffle Gaming Service is alleged to consist of the PPPFish Website, the Shuffle Gaming Website and the Shuffle Gaming Clubs on the PPPoker App having the identification numbers 2896943, 2896953 and 2896949.

194 Much of my analysis of the PPPFish Service applies to the Shuffle Gaming Service. I do not propose to repeat that analysis.

195 I accept the ACMA’s submission that the Shuffle Gaming Service was effectively a continuation of the PPPFish Service. Mr Korpi’s evidence demonstrates that on 6 January 2021, the PPPFish Clubs were closed down and customers of the PPPFish Service had their accounts and their chips “migrated” to three other clubs on the PPPoker App. This occurred after the ACMA had notified Brisbane Poker and Mr Jones on 18 December 2020 of the ACMA’s preliminary findings that they were contravening s 15(2A) of the IGA.

196 From 6 January 2021, customers were instructed via announcements on Facebook to join the Shuffle Gaming Clubs where customers could continue to use the PPPFish Website to register and purchase chips. From about mid-February 2021, the Shuffle Gaming Service operated through the Shuffle Gaming Website, which again contained a mechanism for the buying and selling of chips.

197 On the Shuffle Gaming Website, under the “Sell Chips Here” tab, customers could cash out their chips via bank transfer or bitcoin. For bank transfers, customers provided their account name, BSB and account number. Between 7 January and 10 March 2021, 893 payments totalling $379,307 were made from the PPPFish Bank Accounts to 458 individual customers who had previously deposited money into the PPPFish Bank Accounts.

198 Between 7 January and 10 March 2021, $2,137,504 was transferred into the PPPFish Bank Accounts through 9,878 deposits. Around 5,211 deposits totalling $554,234 contained a six-digit reference number and transaction descriptions associated with the PPPFish Service or the Shuffle Gaming Service. The obvious inference is that these deposits were made for the purposes of buying chips in order to play poker.

199 Although, Mr Korpi did not actually buy chips or play poker using the Shuffle Gaming Service, the similarities and connections between the PPPFish Service and the Shuffle Gaming Service allow me to draw an inference that the two operated in the same way. In particular, I find that the Shuffle Gaming Service provided a mechanism for customers to purchase chips and then gamble with those chips in games of online poker.

200 Further, while Mr Korpi was unable to buy chips through a failure in the Shuffle Gaming Service, the fact that so many deposits were made into the PPPFish Bank Accounts from 7 January 2021 indicates that other customers were able to do so. I infer that these customers were able to play poker.

Whether the Shuffle Gaming Service was a “gambling service” within s 4 of the IGA

201 It is necessary to consider whether the Shuffle Gaming Service was a “gambling service” within s 4(e) or (f) of the IGA.

202 Games of poker in the Shuffle Gaming Clubs were played for valuable chips. The chips could be purchased by customers and were redeemable for money or bitcoin on the PPPFish Website or the Shuffle Gaming Website.

203 Customers were required to give consideration to play poker in the Shuffle Gaming Clubs as the games were played with chips purchased from the PPPFish Website or Shuffle Gaming Website. The service was for the conduct of a game of mixed chance and skill.

204 I find that the Shuffle Gaming Service was a “gambling service” within the meaning of s 4(e) of the IGA.

205 Even if the Shuffle Gaming Service did not come within s 4(e), I would find that it was a gambling service within the ordinary meaning of that expression for the purposes of s 4(f) of the IGA.

Whether the Shuffle Gaming Service was a “prohibited interactive gambling service” within s 5 of the IGA

206 As I have indicated, for a “gambling service” to be a “prohibited interactive gambling service”, the service must be (1) provided in the course of carrying on a business; (2) provided to customers using, relevantly, an “internet carriage service”; and (3) not be an “excluded service”.

207 The ACMA submits that the Shuffle Gaming Service was provided in the course of carrying on a business, in circumstances where:

The Shuffle Gaming Service was provided through a corporate entity, Brisbane Poker.

It was effectively a continuation of the PPPFish Service which was provided in the course of carrying on a business.

The Shuffle Gaming Service was offered to the public at large, being accessible online through the PPPFish Website and the Shuffle Gaming Website.

The PPPFish Website and Shuffle Gaming Website contained various indicia of a business, including a customer support function via a chat feature and promotions such as tournaments.

Money was paid by customers for the purchase of chips.

The providers of the service engaged at least one person to work as an agent for the Shuffle Gaming Clubs and promote the Shuffle Gaming Service on social media platforms.

Brisbane Poker profited from the enterprise. Mr Potter found that in the period between 7 January and 10 March 2021, net customer deposits into the PPPFish Bank Accounts, minus total payments to the PPPoker App, totalled $1,279,955, and $38,000 was paid from the PPPFish Bank Accounts to Mr Jones.

208 I accept the ACMA’s submission and find that the Shuffle Gaming Service was provided in the course of carrying on a business.

209 The PPPFish Website, Shuffle Gaming Website and Shuffle Gaming Clubs on the PPPoker App were accessed by customers through the internet. I find that the Shuffle Gaming Service was provided to customers using an internet carriage service.

210 I find that the Shuffle Gaming Service was a “prohibited interactive gambling service” within s 5 of the IGA.

Whether the Shuffle Gaming Service had an Australian-customer link

211 The ACMA submits that the Shuffle Gaming Service had an Australian-customer link because customers, including ACMA staff members, were physically present in Australia. The ACMA submits that all the investigative steps taken by ACMA staff members were undertaken while they were physically present in Sydney.

212 Under s 8 of the IGA, “a gambling service has an Australian-customer link if, and only if, any or all of the customers of the service are physically present in Australia”. I have held that a person is a “customer” within s 8 of the IGA when they give or agree to give consideration to play or enter the game.

213 I have found that Mr Korpi’s six chips were migrated from the PPPFish Service to the Shuffle Gaming Service and had not been withdrawn by at least 14 January 2021. In that period Mr Korpi, by leaving his chips in Club Shuffle 3, agreed to give consideration to play or enter a game of poker in that club. I find that for that period, Mr Korpi was a customer of the Shuffle Gaming Service who was physically present in Australia.

214 In addition, I conclude there was an Australian-customer link by applying a similar method of inferential reasoning as I applied in respect of the PPPFish Service. Between 7 January and 10 March 2021, there were around 5,211 deposits totalling $554,234 paid into the PPPFish Bank Accounts from Australian bank accounts, which contained a six-digit reference number associated with the PPPFish Service or the Shuffle Gaming Service. In view of the sheer number of transactions made from Australian bank accounts and the number of persons making the transfers, I infer that on each day of that period at least some of those transfers must have been made while the person making the transfer was physically in Australia.

215 Mr Jones and Brisbane Poker have not relied upon s 15(3) of the IGA.

216 I find that the Shuffle Gaming Service had an Australian-customer link.

Whether the Shuffle Gaming Service was “provided” by Mr Jones and/or Brisbane Poker

217 I have held that the word “provided” in s 15(2A) of the IGA can be understood to mean “operated” a facility or mechanism for playing a game.

218 The starting point is that I have held Brisbane Poker and Mr Jones provided the PPPFish Service. Then, after Brisbane Poker and Mr Jones were contacted by the ACMA, customers of the PPPFish Service had their accounts and their chips “migrated” to corresponding Shuffle Gaming Clubs on the PPPoker App.

219 Customers of the Shuffle Gaming Service used the PPPFish Website to register accounts, purchase and redeem chips. The PPPFish Website directed customers of the Shuffle Gaming Service who wished to purchase chips by bank transfer, to transfer their money into one of the PPPFish Bank Accounts, six of which were accounts of Brisbane Poker and one of which was the account of Mr Jones. The PPPFish Website represented those bank accounts as connected with both the PPPFish and Shuffle Gaming Services. The PPPFish Bank Accounts received deposits from customers for the purchase of chips to use in the Shuffle Gaming Clubs. I infer that customers of the Shuffle Gaming Service who purchased chips, including by transferring funds to the PPPFish Bank Accounts, had chips credited to their accounts in the Shuffle Gaming Clubs.

220 Customers of the Shuffle Gaming Service who wished to cash out their chips in the Shuffle Gaming Clubs could do so through the PPPFish Website. Brisbane Poker and Mr Jones then paid such customers cashing out their chips from the PPPFish Bank Accounts. These payments required knowledge of which customers had requested pay outs, as well as details of their bank accounts. I infer that such details were obtained from the PPPFish or Shuffle Gaming Website.

221 Between 7 January and 10 March 2021, Brisbane Poker, using the PPPFish Bank Accounts, made 158 purchases totalling $300,532, from the operator of the PPPoker App for, I infer, the purpose of the operation of the Shuffle Gaming Clubs on the PPPoker App.

222 The PPPFish Service was provided by Mr Jones and Brisbane Poker. There was a close connection between the operation of the PPPFish Service and the operation of the Shuffle Gaming Service, including both services using the PPPFish Website and the PPPFish Bank Accounts. A strong inference arises that Mr Jones and Brisbane Poker also operated the Shuffle Gaming Service.

223 I am satisfied that both Mr Jones and Brisbane Poker operated the Shuffle Gaming Service between 7 January and 10 March 2021, in contravention of s 15(2A) of the IGA.

224 If it were necessary, I would also find that Mr Jones aided, abetted and was knowingly concerned in the contraventions of s 15(2A) of the IGA by Brisbane Poker.

Conclusions concerning whether s 15(2A) of the IGA was contravened through the provision of the Shuffle Gaming Service

225 I have held that Mr Jones and Brisbane Poker operated the Shuffle Gaming Service between 7 January and 10 March 2021 in contravention of s 15(2A) of the IGA.

226 Pursuant to s 15(2B) of the IGA, Mr Jones and Brisbane Poker committed a separate contravention of s 15(2A) in respect of each day in that period.

Conclusion

227 I have held that both Mr Jones and Brisbane Poker contravened s 15(2A) of the IGA by providing the PPPFish Service and the Shuffle Gaming Service.

228 I will make orders that will allow a further hearing on the issue of remedy and penalty.

Associate:

Dated:    28 November 2025

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