Treasure Bay (St. Lucia) Ltd Claimant v 1. The Gaming Authority 2. Attorney General of Saint Lucia 3. The National Lotteries Authority Respondents [ECSC]
| Jurisdiction | St Lucia |
| Judge | WILKINSON J. |
| Judgment Date | 07 November 2011 |
| Judgment citation (vLex) | [2011] ECSC J1107-3 |
| Court | High Court (Saint Lucia) |
| Date | 07 November 2011 |
| Docket Number | CLAIM NO. SLUHCV2011/0456 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SLUHCV2011/0456
In the Matter of Part 56 of the Civil Procedure Rules 2000
And
In the Matter of the Gaming Control Act Cap.13.13 of the Revised Laws of Saint Lucia, 2001
And
In the Matter of the National Lotteries Authority Act Cap. 13.20 of the Revised Laws of Saint Lucia, 2001
Mr. Peter I. Foster for the Claimant and with him Ms. Reneé St. Rose.
Ms. Esther Greene-Ernest for the First Respondent.
Mr. Raulston Glasgow, Solicitor General for the Second Respondent and with him
Mr. Deale Lee and Ms. Cagina Foster.
Mr. Vern Gill for the Third Respondent.
Mr. Garth Patterson Q.C for the Applicant, CAGE St. Lucia Ltd. and with him Ms. Alana Gore and Ms. Eugenia Dixon.
WILKINSON J. On July 6 th 2011, the Claimant filed its fixed date claim form seeking judicial review of certain decisions and certain relief. The Applicant, CAGE St. Lucia Ltd. (hereinafter "CAGE") filed a notice of application on September 23 rd 2011, and an amended notice of application on September 27 th 2011 seeking an order that it be joined in the proceedings as a Respondent. On October 13 th 2011, the first morning of the hearing of CAGE's application, the Claimant filed an amended fixed date claim form. By the amended fixed date claim the Minister for Social Transformation, Youth, & Sports (hereinafter "Minister for Social Transformation") was added, the decisions of which judicial review was sought was expanded and so too was the relief sought. Counsel for CAGE stated that CAGE had not had sight of the amended fixed date claim form and therefore it could not speak to it. The hearing therefore proceeded on the basis of the fixed date claim form filed July 6 th 2011.
The Claimant's fixed date claim filed July 6 th 2011, sought administrative orders and declarations said to be arising from:
(i) the failure of the First Respondent to enforce the provisions of the Gaming Control Act as they relate to the importation, distribution and operation of gaming devices by CAGE and or the Third Respondent in Saint Lucia;
(ii) the decision of the Government of Saint Lucia and or the Cabinet of Ministers to authorize the importation, distribution and or operation of gaming devices in Saint Lucia by CAGE and or the Third Respondent;
(iii) the unlawful importation, distribution and operation of gaming devices in Saint Lucia by the Third Respondent in violation of the Gaming Control Act and the National Lotteries Authority Act.
The relief sought was:
(i) An order that the First Respondent be required to enforce the provisions of Section 7 of the Gaming Control Act as it relates to the importation, distribution and operation of gaming devices, particularly Video Lottery Terminals (hereinafter "VLTs") by CAGE and or the Third Respondent in breach of the provisions of the Gaming Control Act and the National Lotteries Authority Act.
(ii) An order that the First Respondent do investigate the importation, distribution and operation of gaming devices, particularly VLTs ensuring therefore that the importation, distribution and or operation of the gaming devices shall cease until such time as a license is issued in accordance with the Gaming Control Act.
(iii) An order (declaration) that the decision of the Government of Saint Lucia and or Cabinet of Ministers to authorize the importation, distribution and or operation of gaming devices, particularly VLTs into Saint Lucia is unlawful and improper.
(iv) An order that the decision of the Cabinet of Ministers and the Government of Saint Lucia is unreasonable, arbitrary, irrational and/or perverse.
(v) An order quashing the decision of the Government of Saint Lucia and or Cabinet of Ministers to authorize the importation and operation of gaming devices in particular VLTs into Saint Lucia.
(vi) A declaration that the VLTs imported and or operated by CAGE and or the Third Respondent are gaming devices under the Gaming Control Act.
(vii) A declaration that the importation, distribution and operation of the VLTs by the Third Respondent is unlawful and in breach of the National Lotteries Authority Act and the Gaming Control Act.
The fixed date claim form was supported by the affidavit of Ms. Susan Varnes, president of the Claimant. She deposed that the Claimant is the owner and operator of Treasure Bay Casino situate at Bay Walk Mall, Gros Islet and it commenced operations on December 13 th 2010.
Historically, the Claimant first submitted its application for a gaming license on March 30 th 2004 and on September 19 th 2005, the Cabinet of Ministers first approved it license. As part of the process of applying for a licence the Claimant underwent extensive applications, checks, investigations and did so at considerable expense, approximately one hundred and fifty thousand United States dollars (US$150,000.00). The Claimant was issued as a series of short term licenses for operation from 2005 onward. At October 13 th 2010, the Claimant was granted a license with effect from October 1 st 2010. The license first period was that of six (6) months to facilitate finalization of a report to be submitted to the First Respondent by SPECTRUM who was conducting due diligence checks on behalf of the First Respondent. A favourable report was received and the Claimant sought from the First Respondent a licence pursuant to section 21 of the Gaming Control Act and received a license for the period April 1 st 2011 to June 30 th 2011. The First Respondent further requested of the Claimant a Gaming bond. The Claimant submitted a draft bond for approval to the First Respondent and did propose that it also offer its immoveable property as security for the bond.
By letter dated June 29 th 2011, the Claimant was informed by the First Respondent that it was prepared to accept the property offered as security for the bond and that pending settlement of the terms of the bond it would recommend an extension of the gaming operator's licence from July 1 st 2011 for six (6) months (December 31 st 2011). Pursuant to the gaming licence the Claimant is authorized to conduct gaming on its property. At present the Claimant is the sole holder of a gaming operator's licence at Saint Lucia.
It was around February 9 th 2011, that the Claimant became aware of CAGE, a private company. CAGE has imported or caused to be imported VLTs into Saint Lucia. The Claimant was informed that CAGE houses the VLTs in a warehouse at Vide Bouteille, Castries, and that CAGE has received permission from the Cabinet of Ministers or the Government of Saint Lucia to import, distribute and operate VLTs. The Claimant came to understand these matters from a report published in the media of an interview with the Minister for Social Transformation, he is the Minister with responsibility for the National Lotteries Authority Act. This all concerned the Claimant as VLTs are gaming devices, and are essentially the equivalent of slot machines. There had been no publication as far as the Claimant was aware in the Gazette or otherwise of any application for a gaming operator's licence pursuant to the Gaming Control Act by CAGE or the Third Respondent and further, confusing the issue was the statement of the Minister for Social Transformation in the press that the VLTs were merely "lottery ticket generators".
At February 16 th 2011, the Claimant wrote to the Minister of Finance, the Minister of Social Transformation, and the Third Respondent requesting amongst other things that the gaming devices imported by CAGE be regulated and stated that the importation into and operation of the VLTs in Saint Lucia was in breach of the Gaming Control Act and the National Lotteries Authority Act. No reply was received from either of the Ministers. On February 23 rd 2011, the Claimant requested a meeting.
At February 21 st 2011, the Claimant received a letter from CAGE purporting to reply to the Claimant's letter of February 16 th 2011. It stated that CAGE had entered into a management agreement with the Third Respondent to manage certain additional lottery games for the Third Respondent and it alleged that any claim of any adverse effect on Saint Lucia by the impact of the VLTs was without merit. No statement was made about the Claimant's contention that importation, distribution and operation of the VLTs was illegal. The Claimant on February 23 rd 2011, by letter from it attorneys-at-law responded to CAGE.
At March 11 th 2011, the First Respondent responded by letter to the Claimant's letter of February 16 th 2011. The First Respondent advised that a meeting had been convened by the Honourable Prime Minister (the Minister with responsibility for administering the Gaming Control Act) at which the Minister for the Third Respondent was present, the Attorney-General, the Cabinet Secretary, the Secretary of Finance, a representative of the Third Respondent and members of the First Respondent. The letter stated that under the directions of the Honourable Prime Minister, a representative of the First Respondent and Third Respondent were to meet the Second Respondent as a matter of urgency to chart a possible way forward to be proposed to the Cabinet of Ministers.
Throughout March 2011, Ms. Varnes, officers of the Claimant and the Claimant's attorneys-at-law tried to ascertain the outcome of the proposed meeting but their information was that to date the meeting had not been convened.
In the meantime, at or about March 31 st 2011, the Claimant became aware that VLTs were being distributed and were operational. The VLTs are now widely distributed in and around Saint Lucia in restaurants, bars and...
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