JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18-21, 25-28 MAY 2009, 1-5, 9-11, 15-19, 22-24 JUNE, 17-19 AUGUST 2009
DATE OF JUDGMENT:	8 DECEMBER 2009
CASE MAY BE CITED AS:	KAKAVAS v CROWN MELBOURNE LTD & ORS
MEDIUM NEUTRAL CITATION:	[2009] VSC 559

---

EQUITY – Unconscionable conduct – Casino sued by a VIP gambler – Whether gambler subject to a special disability – Pathological or problem gambling - Casino’s knowledge of any disability – Whether gambler’s past diagnosis as a pathological gambler still applicable at the relevant time - Plaintiff’s conduct, supported by expert opinion, in representing he had overcome his gambling problem – Ability to self-exclude - Whether unequal bargaining position between the parties – Whether a scheme to lure - Plaintiff’s conduct in negotiating favourable terms – Effect of inducements – Alleged concealment of breach of Casino Control Act 1991 - Whether plaintiff demonstrated an ability to make decisions in his own best interests and to control his impulse to gamble – Effect of interstate exclusion order – Forfeiture of winnings – Attribution of knowledge - Blomley v Ryan (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 applied - Reynolds v Katoomba RSL Services Club Ltd (2001) 53 NSWLR 43 adopted - Fightvision Pty Ltd v Onisforou & ors (1999) 47 NSWLR 473 considered - Casino Control Act 1991, ss. 68, 75, 77, 78, 78A and 78B – Trade Practices Act 1974 (Cth), s. 51AA.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Defendant by Counterclaim	Mr A.J. Myers QC with Mr L. Glick SC and Mr P. Zappia	Strongman & Crouch
For the Defendants/Plaintiff by Counterclaim	Mr N.J. Young QC with Mr N. Hopkins	Minter Ellison

Table of Contents

Judgment Summary

Introduction

The pleadings

The decade of the 1990’s

Plaintiff’s Self Exclusion from Crown and Reports of Mr Watson-Munro

Reports of Dr Darmody

Reports of Mr Healey

The Plaintiff’s County Court Plea

Revocation of Crown Self Exclusion Order

The Plaintiff’s Applications to Revoke the WOL

The Jupiters Casino Exclusion

The Star City Exclusion

Mr McHarg’s Intervention

The period between 2001 and 2004

The Plaintiff’s Gambling at Interstate Casinos

Burswood Casino
Sky City Casino, Adelaide
Jupiters Casino

Plaintiff’s Las Vegas Gambling

Plaintiff’s Contact With Crown Officers

Meeting in 2003 with Mr Ratnam

Revocation of Withdrawal of Licence 2004

The Plaintiff’s Financial Standing as a Factor in Crown’s Position

Meeting of “Persons of Interest Committee”

Reconnecting with the Plaintiff

Letter Requesting Revocation of WOL & Brooks Report

Restoration of the Licence to Enter and Remain

Plaintiff’s Visit in January 2005

Silent Bookings

Early Negotiations

Plaintiff’s Gambling in Las Vegas 2005

The…

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.

Continue reading Kakavas v Crown Melbourne Ltd

Details

AGLC: Kakavas v Crown Melbourne Ltd [2009] VSC 559
Case: [2009] VSC 559
Decision Date: 8 DECEMBER 2009

CaseChat Overview and Summary

The parties in this case were Mr Kakavas, a high-stakes gambler, and Crown Melbourne Limited, the operator of a casino. The dispute arose when Mr Kakavas sought to recover substantial losses incurred while gambling at the casino, arguing that the casino had engaged in unconscionable conduct by failing to prevent him from gambling while knowing of his pathological gambling problem. The case was heard in the Supreme Court of Victoria. The primary legal issues the court had to resolve were whether Mr Kakavas was subject to a special disability at the time of his gambling, whether the casino was aware of this disability, and if the casino's conduct amounted to unconscionable behaviour. Additionally, the court needed to determine whether the casino had induced Mr Kakavas to gamble through various inducements and whether the casino's actions constituted a breach of the Casino Control Act 1991.

The court found that Mr Kakavas did not have a special disability due to his gambling at the relevant time, as he had provided evidence, including expert opinion, that he had overcome his pathological gambling problem. The court reasoned that Mr Kakavas had the ability to self-exclude from gambling and had not demonstrated an unequal bargaining position with the casino. The court also held that the casino was not aware of Mr Kakavas's past diagnosis as a pathological gambler, and therefore, there was no basis for attributing knowledge of his disability to the casino. The inducements offered by the casino were considered standard marketing practices and did not amount to unconscionable conduct. The court further held that Mr Kakavas's actions, including his conduct in negotiating favourable terms, did not indicate an inability to make decisions in his own best interests or control his impulse to gamble. The forfeiture of his winnings due to an interstate exclusion order was not found to be unconscionable. The court concluded that the casino had not engaged in unconscionable conduct, and therefore, Mr Kakavas's claim failed.

The final orders of the court were that Mr Kakavas's claim against Crown Melbourne Limited was dismissed, and the casino was not required to compensate him for his gambling losses. The court found in favour of the casino, holding that there was no basis for a finding of unconscionable conduct or breach of statutory duty.

Orders