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In July 1994, at the age of 27, a gambler commenced gambling at
a casino in Melbourne.
Over the course of 1994 he lost $110,000 of his father's
money at the casino.
He was also charged with defrauding a finance company of
approximately $286,000, an offence which he sought to mitigate by
asserting that it was committed to support a gambling
addiction.
The gambler was referred to a program for problem gamblers, as
well as to a clinical psychologist specialising in gambling-related
diseases.
He was diagnosed as a "classic pathological
gambler".
Gambler excluded from casino
While the criminal proceedings were pending, the gambler applied
for and was granted a self-exclusion order by the casino.
The gambler was then sentenced to four months in jail.
After serving his prison sentence, the gambler applied to the
casino to revoke the self-exclusion order.
His application was accompanied by a psychologist's report,
stating that the gambler's treatment had been "very
successful" and that he "no longer [felt] the
pathological compulsion to gamble which had plagued him in earlier
times".
The casino granted the gambler's application and revoked the
self-exclusion order.
However, it replaced the self-exclusion order with a withdrawal
of licence (WoL), meaning that the gambler was still not allowed to
enter or remain on the casino's premises.
The WoL was related to the fact that the gambler had been
charged with armed robbery and at the time the matter was before
the courts.
The gambler tried repeatedly, but unsuccessfully, to have the
WoL revoked.
Casino welcomes gambler back
In 2000, the gambler moved to the Gold Coast, where he held
himself out to the world as a very successful businessman who made
a lot of money out of property development and who managed to
combine his role in real estate with recreational gambling.
The casino became aware that the gambler was gambling large sums
of money at other casinos around the world, and so it initiated
contact with him to discuss his return to its premises.
In January 2005, the casino revoked the WoL and welcomed the
gambler back.
Gambler suffers large losses and sues casino for
unconscionable conduct
Between June 2005 and August 2006, the gambler visited the
casino 28 times.
The casino provided him with luxury perks, including private jet
travel, gambling rebates and special credit facilities.
The gambler had a string of wins at the casino, but by August
2006 his fortunes had turned.
He commenced legal proceedings in the Victorian Supreme Court,
claiming that the casino had engaged in unconscionable conduct.
The Supreme Court dismissed the gambler's claim, and he
appealed to the Victorian Court of Appeal.
When that court also dismissed his claim, he appealed to the
Hight Court of Australia.
CASE A
The case for the gambler
CASE B
The case for the casino
While gambling at the casino, I was suffering from a special
disadvantage, making me vulnerable to exploitation. The casino knew
of this special disadvantage and exploited it. This is
unconscionable conduct, for which I should be compensated.
As my medical expert has testified, I am a diagnosed
pathological gambler. Once at the gambling table, my pathological
urge to gamble adversely affects my ability to make rational
decisions in my own interests about the amount and frequency of my
wagers. For me, it is virtually impossible to resist the urge to
gamble.
The casino knew about my special disadvantage. For example, it
knew about the fraud charges, and even referred me to the program I
attended for my gambling problem. It also knew about my
self-exclusion order from its establishment, and it was the one
which initiated the WoL to prevent me from entering its premises.
It also knew that as late as 2004 I had gambled and lost millions
of dollars in Las Vegas.
The casino was sufficiently concerned about my problem gambling
that before it would revoke the WoL, it required me to undergo a
psychological assessment clearing me of any gambling problems.
Although I did see a psychologist, she just accepted me at my word
when I said I was in control of my gambling addiction. However, as
her report states, she didn't do "an assessment of [my]
suitability for re-admission" to the casino. The casino
re-admitted me anyway.
Knowing of my special disadvantage, the casino exploited it for
profit by allowing me to gamble away large sums of money. All up,
between June 2005 and August 2006, my gambling at the casino
generated a turnover of $1.479 billion and I lost $20.5 million to
that establishment.
Even accepting that the gambler is a pathological gambler, this
did not place him in a situation of special disadvantage, much less
a disadvantage which we sought knowingly to exploit.
The gambler's abnormally strong urge to gamble was not a
compulsion which deprived him of the ability to make a choice about
whether to start gambling, or whether to continue gambling. As our
medical expert has testified, the pathological gambler, once in the
swing of gambling, is not merely functioning as an automaton until
the money runs out or the venue closes, or some event stops the
"machine". Although it is harder for a person with
pathological gambling to decide to refrain from, or to stop
gambling once started, it is still a choice that the pathological
gambler is capable of making.
In fact, there are several telling instances in the evidence
where the gambler was perfectly capable of resisting the urge to
lay just one more bet.
Even if the gambler did suffer from a special disadvantage, we
didn't knowingly exploit that disadvantage. In fact, when we
revoked the gambler's self-exclusion order, it was based on his
psychologist's report that he no longer had a gambling
problem.
Although we replaced the self-exclusion order with the WoL, the
WoL had nothing to do with concerns over the gambler's gambling
habits. Our decision was based on the armed robbery charges which
were pending against him.
When deciding whether to revoke the WoL, the central question
for us was not whether the gambler had a gambling problem, but
whether there remained any of the behavioural problems that led to
the WoL.
Although we required the gambler to provide a
psychologist's report before we would revoke the WoL, this was
simply to protect the casino from any allegation that we had
breached our duty of care by allowing the gambler to gamble with
us.
In any event, when we invited the gambler back to our casino,
he presented to us as a successful businessman who was able to
afford to indulge in the high stakes gambling in which he chose to
engage. We accepted him as he sought to present himself. As he told
the psychologist in the report accompanying the application to
revoke the WoL, he was someone who had "conquered his past
demons" and who had a "relapse plan" that he
"would not hesitate to implement".
Not once in the 27 visits prior to his last visit with us did
the gambler ever suggest that he was other than financially capable
of maintaining his high roller status, and keen to do so.
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