United Bookmakers Association v Caymanas Track Ltd

• Jurisdiction: Jamaica
• Judge: FRASER J.
• Judgment Date: 11 April 2011
• Judgment citation (vLex): [2011] 4 JJC 2901
• Date: 11 April 2011
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2011 HCV 01496

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV 01496

BETWEEN

UNITED BOOKMAKERS ASSOCIATION

CLAIMANT

AND

CAYMANAS TRACK LIMITED

DEFENDANT

Application for leave to apply for Judicial Review — Whether section 26 (2) of the Betting Gaming and Lotteries Act creates a public power or vests a private right — Appropriate tests for determining whether public power or private right exercised

FRASER J

1 The Applications

2 1. On March 31, 2011 the Claimant/Applicant, United Bookmakers Association (UBA), an unincorporated association with offices at Unit #14, 29 Molynes Road, Kingston 10 in the parish of St. Andrew brought before the Court without notice applications. These applications sought relief against the Defendant/Respondent Caymanas Track Limited, a limited liability company duly incorporated under the laws of Jamaica, whose address is Gregory Park, P.O. Box 8 in the parish of St. Catherine.

3 2. The first application sought an order that the UBA be appointed representative claimant in these proceedings. The second application sought leave to apply for judicial review to seek the following orders and relief, including:

• a. a declaration that the defendant's decision to issue authority purportedly pursuant to section 26(2) of the Betting Gaming and Lotteries Act (BGLA) on the terms contained in the letter dated March 17, 2011 sent to the claimant's members and those it represents (copy of which is annexed hereto) is ultra vires the BGLA

  ;

• b. a declaration that the defendant by not hearing the claimant before making the said decision, breached the principles of natural justice

  ;

• c. an order of prohibition preventing the defendant from issuing any authority on terms outlined in the said letter;

• d. an order of mandamus requiring the defendant to grant a lawful authority to each of the bookmakers represented by the claimant (‘the Bookmakers’) pursuant to section 26(2) of the BGLA; and

• e. an injunction preventing the defendant from imposing on the Bookmakers any terms other than terms of the authority in force at the date of the commencement of the proceedings, as set out in the Agreement for Authority to Receive or Negotiate Bets Pursuant to section 26 of the Betting, Gaming & Lotteries Act dated January 1, 2011, until the hearing of the application herein or further order.

4 3. At the hearing on March 31, 2011 counsel for the claimant submitted that, as the hearing was without notice, only an injunction maintaining the status quo was being sought at that first hearing. The full application was therefore reserved for an adjourned inter partes hearing. After hearing detailed submissions from counsel for the claimant and after certain undertakings being given by the claimant and Track Price Plus Limited (a member of the claimant) this court made the following orders:

• a. The United Bookmakers Association is appointed the representative claimant in these proceedings.

• b. An injunction is granted until 11 ^th April 2011 or until further order, preventing the defendant from imposing on the Bookmakers (as defined in the Notices of Application for Court Orders filed herein) any terms other than the terms of the authority in force at the date of the commencement of the proceedings, as set out in the respective Agreements for Authority to Receive or Negotiate Bets Pursuant to section 26 of the Betting, Gaming & Lotteries Act, dated 30 ^th December 2010 which took effect on 1 ^st January 2011 and expired on 31 ^st March 2011.

• c. A mandatory injunction is granted, until 11 ^th April 2011 or until further order, requiring the defendant to grant a lawful authority to each of the Bookmakers in the same terms, (excepting necessary date changes), of the respective Agreements for Authority to Receive or Negotiate Bets Pursuant to section 26 of the Betting, Gaming & Lotteries Act, dated 30 ^th December 2010 which took effect on 1 ^st January 2011 and expired on 31 ^st March 2011.

• d. The Application for leave to apply for Judicial Review is adjourned to 11 ^th April 2011.

• e. Costs are reserved.

5 4. On April 11, 2011 after the inter partes hearing I reserved judgment and also extended the interim injunctions until the 29 ^th day of April 2011.

6 The Issues

7 5. The main issues in this case are twofold. Firstly , whether or not the power exercised by the defendant to negotiate Agreements for Authority to Receive or Negotiate Bets Pursuant to section 26 of the Betting, Gaming & Lotteries Act (Rights Fee Agreements) with the members of the claimant is a public one thereby making its exercise subject to judicial review. Secondly , and this only arises if the answer to the first issue is in the affirmative, whether or not the claimant has an arguable ground for judicial review having a realistic prospect of success and is not subject to a discretionary bar such as delay, non-disclosure or the existence of an appropriate alternative remedy.

8 The Context

9 6. To place the issues in context, it is important to outline some salient facts concerning the nature of the horseracing industry in which both the claimant and defendant are heavily invested and their respective interests, prior to examining the course of dealings which has led to this action.

10 7. Betting on horseracing in Jamaica is regulated by the BGLA. There are two systems of betting; pool betting and betting at declared odds. In the BGLA both are defined in section 2 as having meanings as set out in the section. While there are a number of subtleties, qualifications and details in the definitions of the two systems, in summary the main differences between the two are as follows:

• a. In pool betting the dividends paid on winning bets are calculated as (i) a proportion of the total sum realised from all bets placed or (ii) a proportion of an amount determined other than by reference to the stake money paid or agreed to be paid by those who placed winning bets or (iii) are calculated at the discretion of the betting operator or some other person. In pool betting therefore it is not possible to know the dividends that will be paid on winning bets before all the bets are in.

• b. In betting at declared odds each of the persons making a bet knows or can know, at the time he makes it, the amount he will win subject to a number of factors. These factors include:

  • i. the results of a race, or

  • ii. the numbers taking part in the race betted on, or

  • iii. the time the bet was received by any person with or through whom it is made, or

  • iv. subject to section 26, the ‘starting prices’ (the odds ruling at the scene of the race immediately before the start), or the ‘totalisator odds’ (odds paid on bets made by means of a totalisator at the scene of the race), or on there being totalisator odds for any such race. (In the interpretation section of the BGLA, section 2, ‘totalisator’ means the contrivance for betting known as the totalisator or pari mutuel, or any other machine or instrument of like nature, whether mechanically operated or not.)

• c. It is specifically noted in section 3(3) however that ‘[a] bet made with or through a person carrying on a business of receiving or negotiating bets, being a bet made in the course of that business, shall be deemed not to be a bet at declared odds within the meaning of this section if the winnings of the person by whom it is so made consist or may consist in whole or in part of something other than money.’

11 8. The regulation of betting, gaming and lotteries is achieved under the BGLA primarily through the establishment at section 4 of the Betting Gaming and Lotteries Commission (BGLC).

12 9. Section 5 of the BGLA sets out the functions of the BGLC as follows:

5. Functions of the Commission.

5. (1) The functions of the Commission shall be to regulate and control the operation of betting and gaming and the conduct of lotteries in the Island; and to carry out such other functions as are assigned to it by or in pursuance of the provisions of this Act or any other enactment, and, in particular, but without prejudice to the generality of the foregoing -

• (a) to examine, in consultation with such organisations and persons as it considers appropriate, problems relating to the operation of betting and gaming and the conduct of lotteries in the Island;

• (b) to furnish information and advice and to make recommendations to the Minister with respect to the exercise by him of his functions under Part IV, Part V and Part VI;

• (c) to make investigations and surveys for the purpose of obtaining information of use to it in the exercise of its functions.

(2) The Commission shall, subject to the provisions of this Act, have power to do all such things as are in its opinion necessary for, or conducive to, the proper discharge of its functions.

13 10. In carrying out its functions one of the powers of the BGLC under section 8 of the BGLA is to grant licences, permits, approval or authority as required by the BGLA for persons to lawfully engage in particular betting, gaming or lottery activities.

14 11. The representative claimant, the UBA has as its members the following companies: Track Price Plus, Markham Betting Company Limited and Champion Betting Limited. By the first affidavit of its president Xavier Chin who is also the Chief Executive Officer of Track Price Plus, sworn to and filed on the 31 ^st day of March 2011, the evidence is, these three members comprise approximately 80% of the market share of bookmakers in the horseracing industry. Mr. Chin also averred in his first affidavit that, in addition to the three companies members of the claimant UBA, Capital Betting and Wagering Limited, Summit Betting Company Limited, Post to Post Betting Company Limited and Ideal Betting Co. Ltd., also supported the action. Together they represent close to, if not 100% of the market share of legal...