Kakavas v Crown Melbourne Limited & Ors - [2013] HCATrans 69

[2013] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M117 of 2012

B e t w e e n -
HARRY KAKAVAS
Appellant
and
CROWN MELBOURNE LIMITED (ACN 006 973 262)
First Respondent
JOHN WILLIAMS
Second Respondent
ROWEN CRAIGIE
Third Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 APRIL 2013, AT 10.15 AM

____________________

MR A.J. MYERS, QC: May it please the Court, I appear with MR P. ZAPPIA and MR R.A. HEATH for the appellant. (instructed by Strongman & Crouch Solicitors)

MR N.J. YOUNG, QC: May it please the Court, I appear with MR N.D. HOPKINS, SC, for the respondents. (instructed by Minter Ellison)

FRENCH CJ: Yes, Mr Myers.

MR MYERS: The first matter that I wish to deal with I do so under the heading “pathological gambling”. The appellant’s case below and here today is that Crown acted unconscientiously in inviting and allowing him to gamble when it knew or ought to have known that he was suffering from a special disadvantage by reason of his pathological gambling condition. The trial judge’s approach to the matter needs to be considered first because of the way in which this matter was dealt with in the Court of Appeal. The trial judge’s approach, at least to the law, is found in the judgment at paragraphs 426 to 439 in volume 6. If I could ask your Honours to go to that.

HAYNE J: On what page?

MR MYERS: It is at 2527. His Honour asked himself the question: “Is the plaintiff under a disability?” and then addressed the legal principles. He referred, in paragraphs 428 and 429, to portions of the reasons for decision of Justice Deane in Amadio and Justice Mason in Amadio and then to the observations on the point of Justice Fullagar in Bromley v Ryan. In paragraph 431 he said this:

Mason J appears in the passage quoted above to favour the view that the relevant disadvantage is best discerned by asking whether the vulnerable party has a diminished ability to make a judgment about his or her own best interests. The next question is whether the other party knows or ought to know of this, and of its effect on the “innocent” party. Kitto J adopted the same approach in Bromley v Ryan, when he referred to a special disadvantage affecting someone’s ability “to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.”

Then his Honour said at 432:

I respectfully doubt whether an examination of disadvantage is best approached by seeking to ascertain whether there exists in the vulnerable party a diminished ability to make a judgment about his or her own best interests, or about how best to conserve them. It is generally difficult, and often inappropriately paternalistic, for an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kakavas v Crown Melbourne Limited & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] HCATrans 69
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Victoria in a dispute between Mr. Bill Kakavas and Crown Melbourne Limited and other related entities. Mr. Kakavas, a compulsive gambler, alleged that Crown Melbourne had engaged in misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) and the Australian Consumer Law. He claimed that the casino had facilitated his gambling by providing him with credit and allowing him to gamble despite knowing he was a problem gambler, thereby inducing him to continue gambling and incur substantial losses.

The central legal issues before the High Court were whether Crown Melbourne had engaged in misleading or deceptive conduct by failing to warn Mr. Kakavas about the risks of his gambling and by providing him with credit, and whether such conduct caused Mr. Kakavas's losses. The Court was required to consider the scope of the prohibition against misleading or deceptive conduct in the context of gambling and the extent to which a casino operator owes a duty of care or has a positive obligation to prevent a patron from gambling.

The High Court, by majority, held that Crown Melbourne had not engaged in misleading or deceptive conduct. The Court reasoned that the provision of credit and the opportunity to gamble, even to a known compulsive gambler, did not constitute misleading or deceptive conduct. The Court emphasised that Mr. Kakavas was aware of the nature of gambling and the risks involved, and that his decision to gamble was his own. There was no misrepresentation or concealment of material facts by Crown Melbourne that induced Mr. Kakavas to gamble. The Court rejected the argument that the casino had a positive obligation to prevent him from gambling, finding no basis for such a duty in the relevant legislation or at common law.

The appeal was dismissed, and the orders of the Supreme Court of Victoria were affirmed.

Orders