Kakavas v Crown Melbourne Limited & Ors

[2012] HCATrans 348

[2012] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M53 of 2012

B e t w e e n -

HARRY KAKAVAS

Applicant

and

CROWN MELBOURNE LIMITED (ACN 006 973 262)

First Respondent

JOHN WILLIAMS

Second Respondent

ROWEN CRAIGIE

Third Respondent

Application for special leave to appeal

HAYNE J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 10.42 AM

Copyright in the High Court of Australia

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

MR P.W. COLLINSON, SC:   May it please the Court, I appear with my learned friend, MR N.D. HOPKINS, for the respondents.  (instructed by Minter Ellison)

HAYNE J:   Yes, Mr Myers.

MR MYERS:   Thank you, your Honours.  This is a matter of general importance.  Gambling at casinos and elsewhere is widespread.  Many who gamble are vulnerable to exploitation.  This matter concerns the application of the law regarding unconscionable conduct to…..gambling transactions.

In this case, over a relatively short period, Mr Kakavas wagered about $1.5 billion at the Crown Casino in Melbourne on the outcome of a card game called baccarat and he lost in excess of $20 million.  At trial and on appeal, he contended that Crown’s conduct in relation to him was unconscionable for two reasons:  first, that he suffered from a recognised psychiatric disability described in the medical literature as pathological gambling and by reason of this medical disability, his ability to conserve his own interests was impaired, thus he was at a special disadvantage in dealing with Crown in entering into gambling transactions and that Crown knew, or ought to have known, that he was suffering that disability.

HAYNE J:   Now, what is the state of the factual findings about those matters?  Are there factual findings which you would seek to put in controversy in this Court?

MR MYERS:   No.  There are no factual findings that the applicant, if leave were allowed, would seek to put in controversy to enable him to succeed on the putative appeal.

HAYNE J:   So you say on the facts as found at trial and on appeal the applicant should win.

MR MYERS:   Exactly, your Honour.

HAYNE J:   Yes.

MR MYERS:   The second disability was of a different kind.  Mr Kakavas was an excluded person from the casino because of an interstate exclusion order that had been made in relation to him in New South Wales.  The effect of that was that the Melbourne casino, knowing of that, was required to put his name on a list, and furthermore, he was forbidden to enter the casino and it was entitled to remove him from the casino.  The legislation also provided that a person who was an excluded person could not win.  Any winnings payable or paid to him were forfeited to the State of Victoria.  Thus, Mr Kakavas could not retain any winnings.  He did not know that.  Crown Casino did, and it was accepted that he had known that, he would not have gambled at the casino.

In the course of our friends’ written submissions they say that the obligation to create this list and to forfeit winnings only applies if Crown knows of the interstate exclusion order.  That is incorrect.  Section 76 of the Act provides that the list is to be compiled in relation to persons of whom it is or was aware was subject to an interstate exclusion order.  The legislation does not allow forgetfulness of the casino’s employees to affect its operation.

HAYNE J:   Is there a finding that at some point Crown was aware?

MR MYERS:   Yes, there is and, indeed the two persons who were centrally responsible for getting Mr Kakavas back into the casino – Mr Horman, who was the something or other relations officer, a retired senior policeman – he knew that Mr Kakavas was subject to an interstate exclusion order.  He sent an email, which was discovered, to Mr Craigie, the man who was the chief executive officer of the casino and who ultimately made the decision, saying that Mr Kakavas was subject to an interstate exclusion order at Sky Casino in New South Wales.  Now, that email was sent some time before Mr Kakavas was approached to get him to come back to the casino in Melbourne. 

BELL J:   Was that email sent before the effect of the New South Wales exclusion order operated in Victoria?  I think there was a change in the regulatory scheme, was there not?

MR MYERS:   It was sent before the effect of the Victorian legislation was to require the forfeiture of the winnings of persons subject to interstate exclusion orders.

BELL J:   So at a point some time before the events the subject of the pleaded case, an officer of Crown was aware of the fact that in New South Wales an exclusion order had been made, but at that time it did not have the consequence ‑ ‑ ‑

MR MYERS:   That winnings were forfeited in Victoria.

BELL J:   ‑ ‑ ‑ that winnings were forfeited.

MR MYERS:   Yes, that is correct.  There were two changes of legislation which brought about the consequence of forfeiture over a period of a couple of years.  As I said, the evidence established that two senior officers knew of the interstate exclusion order – Mr Horman, who was the man who administered these sort of things primarily at the casino and Mr Craigie, who was the chief executive officer.

Your Honours, below – and it is in a way a little bit of history that is from some point of view of marginal relevance.  If your Honours could look at page 189 of the application book, the learned trial judge at paragraph 428 referred to some observations of Justice Deane in the Amadio Case.  Then he referred to the well‑known passage of Justice Mason in Amadio and then to Blomley v Ryan, which is really the fons et origo of the modern learning concerning special disability.  Then over the page, the learned trial judge said there was a conflict between what Justice Mason said and what Justice Deane said.  We respectfully disagree with that, and put to the Court of Appeal that that was wrong.  Then at paragraph 432, he said:

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 –

and so on.  He expressly, at paragraph 434, said he prefers the approach of Justice Deane, so he rejected in effect the statements of Justice Mason and the central reasoning of Blomley v Ryan.  Then when one came to the Court of Appeal, there was a majority judgment comprising Justice Mandie and Justice Almond’s reasons – Justice Almond agreed with Justice Mandie – and at page 307 of the application book, Justice Mandie referred to Justice Deane, and at about line 12, he said:

Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable –

There was no reference to the reasoning of Justice Mason, except at paragraph 21 to say “Mason J agreed with Deane J”.  Then at paragraph 33 on page 314, Justice Mandie dealt with the question of whether Mr Kakavas was subject to a special disability:

The appellant’s argument was that he was in a situation of special disability or disadvantage because he lacked the ability to control the frequency with which he gambled and the amount of money that he wagered or to make rational decisions about those matters.

That is more or less what we said.  We did not say he lacked it.  We said it was affected, which is a rather different word.  “Lack” suggests entirely lacking any capacity.  But then at the bottom of the page, or perhaps the middle at about line 16 –

Here, the wagers were standard gambling transactions and Crown had no greater advantage over the appellant than it had over any other gambler.  The house had an edge as the appellant well knew.  If the appellant had gambled less frequently, he may have won less or he may have lost less.  If the appellant’s wagers had been of smaller amounts, he may have won less or he may have lost less.  No doubt there was some limit on what the appellant could afford to lose . . . In the long run, the appellant was neither more likely nor less likely to win than any other gambler.  These considerations also show that the wagering transactions were in any event not unfair, unjust or unreasonable as required by the Amadio doctrine.

That reasoning completely neuters the law regarding unconscionable transactions with a special disability.  On that reasoning, no one, whatever their disability, however severe, could succeed against the casino.  As long as the casino offers the person under the alleged disability the same odds as it offers generally, then that person must necessarily fail, however vulnerable he may be, for whatever reason, pathological gambling or anything else.

BELL J:   You said that it would not be necessary to have this Court revisit the factual findings made below.  The factual findings of the primary judge, which as I understand it, the Court of Appeal found were soundly based, included that whatever psychological condition he might have in relation to gambling, he enjoyed a quality of bargaining with Crown, and that was by reference to evidence that was detailed by the primary judge respecting his ability to drive a hard bargain with Crown.  I am just wondering how one approaches the question, accepting that finding.

MR MYERS:   One says two things.  First, the trial judge accepted that Mr Kakavas was subject to this disability.  There were four experts who gave evidence, two of whom had been instructed by Mr Kakavas, and they were all agreed that he was suffering from this disability.  The trial judge accepted that by reason of the disability he was inclined to excessive gambling and impulsive behaviour in relation to gambling.  I can give a reference to it if necessary.

The thing is both the trial judge and, we would say, with respect, the Court of Appeal – although it is not so evident with the Court of Appeal – approached the matter in a way that is incorrect because one has to consider the relevant transactions.  The relevant transactions are those that occur at the gaming table.  The impulse to gamble is that which takes control when one is playing the hands of baccarat, not when one is deciding whether one is going to come to a casino, not when one is negotiating the terms of whether you will be flown down by a jet or not, which was one of the questions, “I will come to your casino if I am flown by a jet because people in Las Vegas will give me a jet”.

So the focus has to be on the relevant transactions, and there is no doubt, we say respectfully, that the learned trial judge, if he had focused simply on the transactions and not on peripheral matters that were not essential to his consideration, would have reached a different conclusion.  The transactions that are impugned are the gambling transactions, not a transaction relating to the terms upon which you will get the jet.  The finding that I refer to in particular is at paragraph 440 on page 193 of the book:

In my opinion it is clear that Mr Kakavas was a problem, and indeed very possibly a pathological, gambler.  His judgment, as could be seen when set against the judgment of the generality of members of the community, was overly influenced by a desire to gamble.  Even making allowances for the truth that we all have different priorities, and that the objects of one person’s desire are the subjects of his neighbour’s derision, nevertheless the extent to which the urge to gamble influenced the thinking and the actions of Harry Kakavas far exceeded its influence on the vast majority of his fellows.

That is the conclusion that the learned trial judge reaches after reviewing in particular the evidence of the psychiatrists.

HAYNE J:   Is his Honour wrong in what is said in the next succeeding paragraph, 441, “it did not at any relevant time categorise”, et cetera? 

MR MYERS:   Yes, he is wrong.  There are three facts that we particularly refer to, your Honour, in dealing with that.  The first is that Crown had a concern that Mr Kakavas was a problem gambler.  I will refer to paragraph 12 at page 33 of the application book, which is part of the summary, but it is convenient:

It is true, and I so find, that Crown had in mind its earlier assessment of Mr Kakavas as a sometime problem gambler –

This is when they are deciding whether they are going to get him back –

It accordingly prepared a letter in which it had him disavowing any continuation of those problems –

So Mr Kakavas signs and says, “Although I am losing millions in Las Vegas, I do not have these problems anymore” –

It asked him to sign that letter.  He willingly did so.  Crown also required that he obtain an assessment from a psychologist or a psychiatrist to the effect that he was not a problem gambler.  Mr Kakavas, albeit grudgingly, acceded to this.

He first then asked, if I can intervene before I read on, a Mr Healey – who had treated him for problem gambling, a psychologist – he asked him whether he would give him the letter, and Mr Healey said, “No, not unless you come back to me and I am satisfied, really, that you have solved your problem”.  I know I am not referring to the evidence, but there is no doubt of it, and no doubt my learned juniors will give me the note.

So when this was drawn to the attention of a Mr Doggett, a Crown officer – who was not called, by the way – he told Mr Kakavas, “Look up the Yellow Pages and go and see a psychologist or a psychiatrist anywhere”, which is what Mr Kakavas did, and he chose a Ms Janine Brooks on the Gold Coast, close to where he lived.  She was prepared to write a report about him, but declined to make a professional assessment, and in the papers that have been additionally supplied to the Court, there is a letter from Ms Brooks in which she says exactly that, in the first paragraph, “To Whom It May Concern”, fourth line of the first paragraph:

Therefore I am unable to do an assessment of his suitability for re‑admittance to the Crown Casino but my summary of the consultation follows –

and she sets out, in effect, what Mr Kakavas said, which is no different from what he was prepared to sign in the letter that Mr Doggett gave him to sign.  Mr Doggett flew up to the Gold Coast, met him at the Coolangatta airport and got him to sign the letter and took it back to Crown.  The reference to the evidence about Mr Healey is in paragraph 494 – I do not want to take your Honours to it unless you need to go to it.

So Crown did know, and were concerned at the time Mr Kakavas was being considered for re‑admittance to the casino, that he had this problem, and they did not receive the psychiatrist’s letter that they required.  They received one which said, “I cannot make an assessment”.  As well, it is to be remembered that Mr Horman, the community relations officer, retired policeman, he had had a long acquaintance with Mr Kakavas because Mr Kakavas was imprisoned for stealing money from his employer, Esanda, so that he could gamble it at Crown Casino some years before and Mr Kakavas had applied for exclusion from the casino and from other

casinos.  We say, with respect, that there is no doubt really as to what Crown knew.

Justice Bongiorno was wrong in particular – I just need to refer to this at paragraph 207, application book 370 – “a diagnosis made many years before the appellant’s gambling” was what he said the expert’s diagnosis was.  That is not so.  All of the experts, as we point out in our written reply, paragraph 6 at application book 419, agreed that Mr Kakavas was subject to the difficulty when he was gambling and lost the money.  In summary, they are my oral submissions.

HAYNE J:   Thank you, Mr Myers.  Yes, Mr Collinson.

MR COLLINSON:   For a number of reasons, your Honours, we say this is an inappropriate vehicle for special leave.  Can I first mention the IEO aspect?  The special disability arising from an IEO is not the simple fact that Mr Kakavas was subject to that restriction, that he could not retain his winnings as a result of attending the casino.  It had to be his ignorance of that fact.  That is the first point. 

Therefore, for a case for unconscionable conduct to be pleaded and proved against Crown, the allegation had to be that you, Crown, knew of the ignorance of Mr Kakavas about his vulnerability to the gambling winnings not being able to be retained.  That cause of action was never pleaded.  It was never pleaded that Crown was aware of the ignorance of Mr Kakavas.  But secondly, and consequentially upon the fact that it was not pleaded, there are no findings about Crown’s knowledge as to the state of Mr Kakavas’ knowledge.

BELL J:   Mr Kakavas was not aware of the change in the Victorian legislation that had the effect that he could not win or retain his winnings.  Is that the position?

MR COLLINSON:   Correct.

BELL J:   He understood that he was the subject of the order back in 2000, but he did not understand the consequences of it.

MR COLLINSON:   That is correct.

BELL J:   The factual finding by the trial judge was that although Crown was aware of the fact of the making of the order in 2000, it had, on the trial judge’s findings, not brought to its corporate mind the significance of the change in the statutory regime and the consequences that went with that.

MR COLLINSON:   Yes, but that is not squarely the point I seek to raise.

BELL J:   No, I understand that.  I just want to understand the background.  Your point is this case was not pleaded?

MR COLLINSON:   Yes, and it goes back to the nature of a specialist ability.  It is the inability of the applicant for relief to conserve their own interests.  If Mr Kakavas knew that he could lose his gambling winnings, but went into the casino anyway, he could hardly say that he suffered from special disability.  Now the judge found in his favour in that regard, so he gets to that base.  But what was never pleaded was that Crown knew of his ignorance.  It is only there that you get the disability.

So that is the first point, and that would, if we are right about that, remove all of the IEO grounds of appeal which are proposed.  The next point, again, arises in respect of the IEO.  Your Honours need to understand that when Crown first became aware of the order, it was not of course an interstate exclusion order.  Crown became aware of it in September 2000.

At that point, there was no concept of an interstate exclusion order under the Victorian legislation.  You then have an amendment in 2002 which went one step, because it said that if a person is subject to an order made interstate, then you cannot enter the casino here.  But it is again, going forward in time another two years to 2004, before you had the provision come into force to the effect that if you do do that you cannot retain your winnings.  So the knowledge that our friends had to prove in respect of the IEO side of the case is that Crown had knowledge of the current status of the IEO.

Now, to add bits together in the way that the case seeks to do is just not the kind of knowledge that is contemplated in the case law.  It is four years out of date.  The only proof of knowledge is four years earlier.  At that stage, it has a different legal consequence, and then you get various changes in the legislation thereafter.  What has to be proved is knowledge of the current status of the IEO.  There was not any evidence that Crown knew of the current position of Mr Kakavas when he recommenced discussions about gambling in December 2004.

HEYDON J:   If it knew of the order of 2000, it must surely have known of the changing state of the legislation?  That is vital to the conduct of its business, is it not?

MR COLLINSON:   Yes, but the relevant point is it did not know of the changing status of Mr Kakavas.

HAYNE J:   But that was purely statutory, was it not?

MR COLLINSON:   It is more than statutory.  It is the actual order that is made in respect of Mr Kakavas under the New South Wales legislation.  That occurred some years prior to September 2000, but it can be revoked at any time.  Mr Kakavas knew that he was the subject – they had complementary knowledge in some ways, but Mr Kakavas knew when he recommenced gambling that he was still subject to the Star City order.  Crown did not know that, because they did not know whether circumstances had changed ‑ ‑ ‑

HEYDON J:   But there is a presumption of continuance, surely?

MR COLLINSON:   We say that is a step too far, in terms of the kind of knowledge that is required for unconscionable conduct.  That is our second point.  Can I come to the third point?  We could debate whether the primary judge applied the correct test for determining whether there is a special disability.  What is undeniable is that he made findings that Mr Kakavas, the applicant, was able to conserve his own interests.  That is the correct test for special disability.

The Court of Appeal held perhaps the primary judge did not apply the correct test, but we concede that he made findings that the plaintiff, Mr Kakavas, was able to conserve his own interests and then they said applying the correct ‑ ‑ ‑

HAYNE J:   By losing a couple of million in 20 minutes?

MR COLLINSON:   There is a vast array of evidence, your Honour, and if your Honours want to embark upon a fresh trial of the question whether or not the trial judge’s finding was justified, that is another matter.  But there is no doubt that the Court of Appeal held that the trial judge made findings that Mr Kakavas was able to conserve his own interests.

HAYNE J:   My question, Mr Collinson, was directed to the content of the test.  Do not the facts reflect upon what content ought to be given to the test?

MR COLLINSON:   Yes, but the facts that the judge relied upon for his finding that the applicant was able to conserve his interests are all over the judgment.

HAYNE J:   Exactly, and the question at issue, at least as the applicant would wish to have it, is whether in the facts as they are there laid out, the test as said to be applied is applied having an appropriate content.  Conserve one’s own interests in circumstances of this kind seems to be a rather plastic idea.  What is the content here?

MR COLLINSON:   What the judge said was you are able to self‑exclude, and the fact that you have this psychiatric condition does not carry the consequence that you lack the willpower to make a decision to self‑exclude.  If you have the willpower to make a decision to self‑exclude, how can you be unable to conserve your own interests?

The case being put by Mr Kakavas was it is enough for us to simply show the existence of this pathological gambling condition, psychiatrically speaking.  The judges have all said no, the test is can you conserve your own interests, and so what the Court is being invited to do, if it were to grant leave, is to revisit that next question of fact of law which would involve traversing the whole of the evidence before the primary judge, because what our friends will seek to do is to say the existence of a psychiatric condition is what you, the High Court, should focus upon, and you should set to one side the finding of the judge that he did not exceed normal gambling limits, that he often went to the casino and did not gamble, that he often left the casino with, in one instance, $10 million of winnings.

All of these matters have been the subject of findings by the trial judge, and the point for present purposes is even if he applied the wrong test, it is plain that the Court of Appeal applied the correct test.  If the IEO case has not been pleaded, and if the special disability based upon pathological gambling has already been the subject of findings below, this Court will never get to questions of what the test for knowledge is.  That is why we say it is not an appropriate vehicle.

It is artificial to simply make a generalised submission that gambling is an important condition in Australian society such that this case raises questions of public importance.  What this case reveals, if one just traverses the findings of Justice Harper, is that each particular applicant for relief is highly dependent upon the particular circumstances of their relationship with the casino.

BELL J:   In the way this case was run, is it right to say that the parties were insistent that it be conducted by reference to the pleadings, or was it in fact run beyond the pleadings?

MR COLLINSON:   The first answer is it does not matter because there is no finding in the primary judgment, because the case was never run, as to whether Crown knew of the ignorant state of Mr Kakavas.  So if your Honours were to say, “We are not convinced it was run in accordance with the pleadings”, you will not have that finding.  You will not have it because it was not pleaded, and it was not run.

The reason it was not run is because of a misconception.  I think our friends would say that even though it was not pleaded, they sought to run an evidentiary case that the disability was the application of the act to Mr Kakavas itself.  But they did not articulate it correctly because the only disability could be his ignorance.  Returning to the earlier point, some submissions of my learned friend Mr Myers earlier really would, taking the form that one might take in opening of the trial when he referred to evidence of Mr Horman and evidence of Mr Doggett, that is an indication, with respect, of the inquiry which the applicant for leave is seeking to invite the Court to embark upon.

The next point is that the judge made findings, as was revealed by the detailed findings, that if Mr Kakavas had not gambled at Crown, he would have gambled at the other casinos around the world and lost his money anyway.  That means that, as a matter of causation, the applicant cannot succeed with this claim because it was not the obligation of Crown, even if it was liable for unconscionable conduct, to guard Mr Kakavas from gambling at any casino.  The limits of the obligation would only be not to gamble at Crown.  But if the evidence were to disclose, as indeed it does, that Mr Kakavas would then have gambled elsewhere, then his claim cannot be made out, even if he were to succeed on everything else.

Our friends say that cannot be right because that would allow Crown to retain the fruits of its wrongdoing, being the money it made from the transactions.  But if one looks at the prayer for relief in the statement of claim, it limits the claim for relief to equitable compensation.  There is no prayer for relief for an account of profits.  Sometimes, the High Court says, “If the fall of the evidence is such that people are not prejudiced, we will allow a point to be run, or an amendment to be made in this Court”.  It is different here, however, because your Honours will be familiar with the authorities that prescribe that a party must make an election in claiming equitable relief between equitable compensation and an account of profits.

The election was really made by the pleading here because an account of profits was never claimed, but certainly by the time of judgment, the claim was only put in terms of equitable compensation.  So to talk about “fruits of the wrongdoing” is to detract from the nature of the claim put.  Mr Kakavas claims his losses.  Those losses, on the findings of the primary judge, would have been incurred elsewhere in any event.  So in our submission, the outcome ‑ ‑ ‑

HAYNE J:   But the claim included, did it not, a claim under the Trade Practices Act, of relief under that Act?

MR COLLINSON:   Yes.

HAYNE J:   Why does pointing to the alternative circumstances bear upon what relief should go under that Act, at least in respect of a 51AA claim?  You may be right, but is there not an issue about that?

MR COLLINSON:   The claim under the statute was also limited to damages.  I am looking at the prayer for relief – I think we have given your Honours the ‑ ‑ ‑

HAYNE J:   Well, it is an 82 and an 87(2)(d) claim, see paragraph A and B.

MR COLLINSON:   Yes, and if one looks at A and B, A is damages under section 82 and B is the amount of the loss and damage suffered by reason of contraventions.

HAYNE J:   Yes.

MR COLLINSON:   So this is not an appropriate vehicle because the loss would be suffered in any event.  Those are our submissions.

HAYNE J:   Yes.  Yes, Mr Myers.

MR MYERS:   Your Honours, the way in which the case was conducted is apparent from the opening at page 305.  Justice Mandie sets it out.  The amended statement of claim is in the book that your Honours have, and it refers in detail in 15 paragraphs, 8, 9, 10, 15(A), 16, 11, 18, 19, 21, 25 and 29 to the IEO.  This point about the knowledge of Crown, which our friends now raise on this appeal, is a bad point.  The Court does not have the amended reply in defence to counterclaim, but in paragraphs 14(A)(vii), (A)(viii) and (A)(ix) this is what is pleaded - acting and relying upon the said assumptions, that is, the assumption that he was entitled to enter the casino and he could win, the plaintiff entered the casino.  At all material times, the first defendant knew or ought to have known or intended that the plaintiff should so act, and was acting upon the said assumption.

So the very thing that is said is not pleaded is expressly pleaded in the amended reply and counterclaim which was delivered pursuant to a ruling of the trial judge on 25 June 2009.  Furthermore, on page 400 of the court book, the evidence of Mr Doggett is set out in our submissions.  Mr Doggett said to Mr Kakavas, when he was trying to induce him down from the Gold Coast:

Crown was “being very pedantic with your application . . . because you’ve been excluded from other casinos and you were excluded by the Chief Commissioner of Police in New South Wales . . . ” –

and at paragraph 584, the learned trial judge accepted that as correct.  So the submission that my friend put about no contemporaneous knowledge of a relevant officer of Crown is also wrong.

The problem about the trial judge’s findings is that he looked at transactions other than those which were impugned in determining whether the applicant can conserve his own interests, whether he could negotiate for the jet, not whether – when he was playing at $300,000 a hand for baccarat that take about 20 seconds - your Honour said he lost $2 million in 20 minutes.  He lost $2 million in two minutes from time to time.  One 20 minute session – I do not think I am exaggerating here – I think the evidence shows that he gambled $70 million, and lost a great deal of it.  But the point is there is no dispute about the facts of what he lost and when and how.  They are the submissions in reply.

HAYNE J:   There will be a grant of leave in this matter.  Mr Myers, can I direct your attention to the notice of appeal?

MR MYERS:   Yes, your Honour.

HAYNE J:   It is very long.

MR MYERS:   Yes, it is.

HAYNE J:   Why?  Why can the points not be stated more succinctly?

MR MYERS:   Your Honour, I feared that this was a question that I would get in the event that your Honours were prepared to make an order ‑ ‑ ‑

HAYNE J:   So you have an answer ready, do you, Mr Myers?

MR MYERS:   Well, I do not have a notice of appeal.  I can do better is the answer, your Honour.  We can certainly trim down the grounds of appeal.  To do it here on my feet ‑ ‑ ‑

HAYNE J:   I am not suggesting that we should have a drafting session, Mr Myers.  Those are unproductive.

MR MYERS:   I know.  It is like an essay, your Honour.

HAYNE J:   But it would seem to me that you have two, perhaps three, points – I may be mistaken, but ‑ ‑ ‑

MR MYERS:   When we got to the special leave points, we were more succinct and we identified three points.  I think they are probably still the three points, your Honour, but I would like to reflect upon that in the light of what has actually occurred on the papers and orally today.

HAYNE J:   Now, the notice is due to be filed on or before 2 January 2013.

MR MYERS:   Yes.  It can be filed next week, your Honour.

HAYNE J:   Yes.  You were perhaps present in Court when I indicated the directions ‑ ‑ ‑

MR MYERS:   I was, and listening carefully, your Honour.

HAYNE J:   ‑ ‑ ‑ including to the minatory words with which they were concluded.

MR MYERS:   Unnecessary for me, your Honour.  I am acquainted with the procedures of the Court.

HAYNE J:   Of course, Mr Myers.  There will be a grant of leave in this matter, as you depute all these matters to the bevy of counsel who appear with you.

MR MYERS:   Thank you, your Honour.

HAYNE J:   The Court will adjourn to reconstitute.

AT 11.24 AM THE MATTER WAS CONCLUDED