Treasure Bay (St. Lucia) Ltd v Gaming Authority et Al

JurisdictionSt Lucia
CourtHigh Court (Saint Lucia)
JudgeRamdhani, J.
Judgment Date25 September 2014
Neutral CitationLC 2014 HC 13
Date25 September 2014
Docket NumberSLUHCV2011/0456

High Court

Ramdhani, J. (Ag.)

SLUHCV2011/0456

Treasure Bay (St. Lucia) Limited
and
Gaming Authority et al
Appearances

Mr. Peter Foster Q.C. with Ms. Renee T. St. Rose for the claimant.

Ms. Esther Greene-Ernest for the first respondent, The Gaming Authority.

Ms. Brenda Portland Reynolds Solicitor General (Ag.) with Ms. Cagina Foster Lubrin for the second respondent, The Cabinet of Ministers.

Mr. Callistus Vern Gill for the third respondent, The National Lotteries Authority.

Mr. Garth E. W. Patterson Q.C. with Ms. Eugenia Dixon and Ms. Tammi Pilgrim for the Interested Party CAGE.

Judicial Review - Leave granted to commence judicial review against specific parties — Fixed date claim amended to include additional party — Additional party a minister in cabinet — Cabinet of minister already a party — Whether cabinet of minister made alleged decision — Whether joinder of minister necessary

Civil Practice and Procedure - Locus standi — Permission and trial stage — Approach of court — Alleged misconduct of claimant — Alleged improper motive of claimant — Premature claim — Claim lacking merit Whether matters affecting standing or giving rise to discretionary bar to relief

Statute - Interpretation — Gaming Control Act of St. Lucia — National Lotteries Authority Act of St. Lucia — Statutory definition of lottery — Video lottery terminals — Whether gaming device — Whether lottery or gaming — Whether caught by provisions of Gaming Act

In 2005, the claimant, Treasure Bay (St. Lucia) Limited (‘Treasure Bay’), received the approval in principle of the Government of St. Lucia to operate casino gaming operations in St. Lucia. Treasure Bay was then required, as part of a protracted and extensive application process, to prove among other things, the financial integrity of all its owners and key employers and it was subjected to a due diligence investigation by the Gaming Control Authority under the regulatory regime of the Gaming Control Act, Cap. 13.13 of the Laws of St. Lucia. It was only in October 2010, that Treasure Bay was first issued with a Gaming Operators Licence which was valid for an initial period of six months and its continuation was made subject to the completion of a favourable report on the due diligence investigations. In December 2010, Treasure Bay commenced casino gaming operations at its Treasure Bay Casino at Bay Walk, Rodney Bay. In April 2011, the Gaming Operators Licence was extended to June 2011, and at the date of the trial in this matter, Treasure Bay was the holder of a current Gaming Operator's Licence. This has been, to date, the sole Gaming Operator's Licence issued to anyone under the Act to conduct gaming in St. Lucia. During the licensing process, Treasure Bay had been advised by the Government that the extensive application process was necessary under the Gaming Act as Government wanted to be cautious to ensure the integrity and reputation of St. Lucia was maintained with regards to gaming. It would appear that Treasure Bay believed that having regard to the kinds of financial investment they were required to make, and stringent due diligence requirements to which they were subjected, that they would more or less be the sole operators of gaming in St. Lucia as the market space would hardly make it financially feasible for any competition.

Shortly after it received its Gaming Operator's Licence, that is, in February 2011, Treasure Bay became aware that the Interested Party CAGE had imported a large number of video lottery terminals (VLTs) into St. Lucia. Further investigations on their part revealed that CAGE had not only received permission from the Cabinet of Ministers of the Government of St. Lucia to deploy and operate these machines which Treasure Bay considered to be gaming machines, but had also entered into a ten-year management agreement with the National Lotteries Authority to manage the VLTs as ‘lottery games’ under the Lotteries Authority Act, for the Lotteries Authority. It was later revealed that the then Minister for Youth and Sports had written to the CAGE that he had been directed by the Cabinet to instruct the Lotteries Authority to execute this management agreement with CAGE under the Lotteries Authority Act. Treasure Bay became very concerned that gaming machine were about to be deployed and operated in St. Lucia outside of the regulatory regime of the Gaming Act and saw this adversely affecting the returns on their financial investment; competition had arrived.

From as early as February 2011, Treasure Bay began writing letters to the Gaming Control Authority requesting that it investigate the intended use of these VLTs in St. Lucia. As part of its complaint, Treasure Bay expressed its view that the VLTs would have a negative impact on the gaming industry in St. Lucia. The Prime Minister, the Attorney General and the Lotteries Authority were soon drawn into the discussions that followed. By March 2011, the VLTs had been deployed and put into operations at various locations in and around the Castries Market and Gros Islet. On the 14th of April 2011, Treasure Bay caused its attorneys to formally request of the Gaming Authority that it enforce the provisions of the Gaming Control Act by prohibiting the continued operation of the VLTs. Throughout all of this, it complained that the VLTs could not be considered lotteries and could only fall under the regulatory regime of the Gaming Control Act.

On the 27th April 2011, Treasure Bay applied ex parte to the court for leave to apply for judicial review of a purported decision of the various entities of Government to allow VLTs to operate unlawfully in St. Lucia, and the failure of the Gaming Authority to enforce the Gaming Control Act. The court granted leave to proceed against the named respondents on the leave application, namely, the Gaming Authority, the Attorney General and the Lotteries Authority. This application for judicial review was filed on the 6th July 2011 against those three named respondents and was subsequently amended to include as a fourth respondent, the Minister for Youth and Sports. Shortly thereafter, CAGE applied to be joined, and was joined as an Interested Party to the claim. During the course of the proceedings the Cabinet of Ministers was also substituted in place of the Attorney General. The clamant is primarily contending on this application, that the court should quash the decision, whether of the Cabinet, the Minister or the Lotteries Authority to cause the VLTs to be imported and operated in St. Lucia as a lottery. On this application, Treasure Bay also seeks an order of mandamus compelling the Gaming Authority to enforce the provisions of the Gaming Control Act as against CAGE and its operations of VLTs.

The claim for judicial review has been vigorously defended. On behalf of the first respondent, the Gaming Authority, it was contended the claimant had acted precipitously in seeking to compel the Authority to enforce the provisions of the Gaming Control Act, as it did not allow the Gaming Authority a reasonable period within which to perform its statutory duties. The Gaming Authority argued that it had been acting on the complaint by the claimant, and in was the process of discussions with the various arms of the Government when the claim was filed.

On behalf of the Cabinet of the Government of St. Lucia, it has been argued that the Cabinet did not appropriate to itself the right to authorize the importation, distribution and operation of the VLTs, and that it did not direct the Minister of Youth and Sports to instruct the Lotteries Authority to enter into a management agreement with CAGE. The Cabinet accepted that it had made a policy decision and that the Minister had acted pursuant to the decision to ‘advise’ the Lotteries Authority under the Lotteries Act that CAGE was a suitable entity to enter into a management agreement with.

The Lotteries Authority's position was that it had been advised of the policy decision of government and government's keen interest to allow CAGE to run lotteries on behalf of the Lotteries Authority in St. Lucia. The Lotteries Authority further contended that it took the Minister's advice but acted independently, carried out its own investigations, which included a visit to Barbados to see VLTs in operation there, and even met with the principal of CAGE to discuss and negotiate the terms of the agreement. It also contended that it took its own decision to enter into the management agreement with CAGE as it was satisfied that it was a proper decision having regard to its investigations both into VLTs and CAGE and the fact that it considered that VLTs were properly lotteries under the Lotteries Act.

The fourth respondent, the Minister for Social Transformation, Youth and Sports never entered an appearance, did not file any pleadings or affidavits, and was not represented at the trial. The learned Solicitor General and Mr. Patterson Q.C. for the Interested Party CAGE took arguments at the trial that one of the attorneys for the claimant, who was no longer with the matter, had agreed to withdraw the proceedings against the fourth respondent at an earlier stage of the proceedings. Mr. Foster Q.C., who appeared at the trial for the claimant, disputed this. All sides firmly believed in their respective positions and asked the court to resolve the matter by having regard to the transcripts of the relevant portions of the proceedings. In any event, the Learned Solicitor General and Mr. Patterson Q.C. argued that leave had never been granted to the claimant to proceed against the fourth respondent and the claim against him should not be allowed to continue.

On behalf of CAGE, it was contended that it had entered into discussions with the Government to introduce VLTs in St. Lucia and been issued with a letter of intent by the Government of St. Lucia on the 19th of September 2009 to discuss and negotiate...

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