Casino Not Liable for Bets Made by Problem Gambler: Kakavas v Crown Melbourne Ltd

By Jeannie Marie Paterson and James Ryan

Kakavas v Crown Melbourne Ltd Case Page

Issues of gambling, the responsibilities of gaming venues and the regulation of problem gambling have been prominent in recent political debate. Kakavas v Crown [2013] HCA 25 concerned the claim by a so-called ‘high roller’ gambler, Harry Kakavas, to $20 million dollars while gambling at Crown Casino in Melbourne between 2004–06. Kakavas claimed this amount on the basis that Crown had engaged in ‘unconscionable conduct’. Unconscionable dealing is a concept based in equity and given statutory force under s 20 of the Australian Consumer Law (Cth) (previously s 51AA of the Trade Practices Act 1974 (Cth)). As explained by Justice Mason in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14, the equitable doctrine of unconscionable dealing will set aside a transaction:

whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created.

Kakavas was seeking to ‘set aside’ his decision to gamble $20 million with the result that the money he had gambled would be returned to him.

Kakavas’ claim failed for two reasons. First, the High Court doubted that Kakavas suffered from a ‘special disability’ in the sense required to make out unconscionable conduct. Secondly, even Kakavas did suffer from a special disability, the High Court found that Crown did not actually know of it at the time when the allegedly unconscionable conduct took place. Critically, the High Court said that a trader in the position of Crown had to have actual knowledge of the disadvantage of a problem gambler such as Kakavas. Continue reading

News: Waiting for the mining tax case and forgetting about any carbon price case

Tomorrow we will learn of the High Court’s decision on the challenge by Fortescue Metals and others to the Commonwealth’s mining tax legislation – the Minerals Resource Rent Tax Act 2012 (Cth). The court heard that case in March this year. Professor Michael Crommelin from Melbourne Law School will be writing about the Fortescue case for Opinions on High. Continue reading