The Conscience of the King: Kakavas V Crown Melbourne Ltd

Article excerpt

I INTRODUCTION

In the case of Kakavas v Crown Melbourne Ltd [2013] HCA 25 (5 June 2013) ('Kakavas'), the Full Bench of the High Court considered the application of equitable principles relating to unconscionable conduct to the situation of a 'problem' gambler and his dealings with Crown Melbourne Ltd ('Crown'). Although the substantive sections, which address the issue of alleged unconscionable conduct by the respondent, constitute a very small percentage of the judgment, (1) the decision effectively limits the availability of equitable relief in instances of unconscionable behaviour. It is argued below that this is achieved by substantially narrowing the ambit and the definition of 'disability' as enunciated Fullagar J in Blomley v Ryan ('Blomley'), (2) and addressed in Commercial Bank of Australia Ltd v Amadio ('Amadio') (3) by both Deane and Mason JJ.

Indeed, the Kakavas judgment is disturbing on a number of levels. In addition to the circumscription of the equitable principles relating to unconscionable conduct, the High Court, in the joint/collective judgment, demonstrates an unusual degree of what may only be described as subjectivity in its weighing of the evidence presented at first instance. Both the tenor and content of the judgment also suggest that the High Court was in some degree influenced by the potential for a decision in the applicant's favour to 'open the floodgates' to further actions by problem or compulsive gamblers against casinos and other venues at which gambling is encouraged.

II THE FACTS

The facts of the case are fairly complex, being concerned with the numerous dealings between the appellant and the respondent over a number of years, as well as a number of ancillary events and issues. At all three levels of the litigation, (4) the courts were at pains to describe the facts in detail. Indeed, the judgment of the Supreme Court of Victoria Court of Appeal (5) presents a description of all of the transactions between Mr Kakavas and Crown; these being taken from the judgment of the primary judge. (6) The facts summarised below are abstracted from the Supreme Court of Victoria Court of Appeal judgment, upon which the High Court relied for the facts recited in its judgment. (7)

The appellant is what is described in all three decisions as 'a pathological gambler.' (8) In common parlance, he would be described as a 'gambling addict' or 'compulsive gambler.' (9) Interestingly, he is also described in all three decisions as a 'high roller,' i.e. a person who habitually gambles for extremely high stakes. (10) His relationship with the respondent began in 1994, when the Crown first opened its casino in Melbourne. In addition to gambling at Crown, the appellant would also gamble at casinos on the Gold Coast and in Sydney. In 1998, Mr Kakavas was sentenced to two years imprisonment for fraud, 18 months of which was suspended. (11) The appellant alleged that the fraud was committed to help fund his gambling addiction. During the time that he was awaiting trial he underwent therapy for his addiction and self-excluded from Crown. (12) On his release from gaol, the appellant applied to Crown to have the self-exclusion order revoked. This was accomplished in June 1998. However, on revoking the self-exclusion order, the respondent revoked the appellant's licence to remain on the casino's premises. (13) The licence was revoked because the appellant had been charged with an armed robbery offence. The charges were dismissed at the committal hearing.

On dismissal of the criminal charges, from December 1998 until October 2004 the appellant constantly applied and reapplied to Crown for revocation of the Withdrawal of Licence ('WOL'). Throughout these six years, Mr Kakavas established and ran a profitable property development company on the Gold Coast and continued to gamble at other venues in Australia and Las Vegas, in the United States of America. It was not until the management of the respondent discovered that the appellant had been gambling (and losing) $3 and $4 million dollars at the casinos in Las Vegas that it finally considered the revocation of the WOL. …