The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Grand Bahama Port Authority (GBPA) is urging the Supreme Court not to permit a web shop operator’s Judicial Review to become a “watershed case” against it.

Freeport’s quasi-governmental authority and its attorneys, in submissions filed on September 2, 2016, are arguing that Jarol Investment’s case is a private law case rather than a Judicial Review action.

The significance of this, and the GBPA’s bid to strike out Jarol’s Judicial Review, which is due to be heard by the Supreme Court tomorrow, is that the former has never been subjected to such an action.

This was revealed by its attorney, Fred Smith QC, the Callenders & Co attorney and partner, at the April 14, 2016, hearing at which the Supreme Court gave Jarol permission to proceed with its Judicial Review.

According to the transcript of that hearing, Mr Smith told Justice Petra Hanna-Weekes: “I said at the beginning that this is a watershed case. It is because I believe that this is the first time the Port Authority has been sued by way of Judicial Review.”

Whether the GBPA was found to be a public authority, and “amenable to Judicial Review”, was described by Mr Smith as “a very important point that needs to be determined after full deliberation and evidence by the court”.

Mr Smith added that an affirmative answer would likely spark “a lot of other litigation”, and impact “potential rights”, but said the GBPA ‘reserved its position’ as to whether it could be subjected to Judicial Review.

Now, in submissions filed just three days before Jarol’s substantive Judicial Review was due to be heard, Mr Smith is arguing on the GBPA’s behalf that the dispute is a private law matter not appropriate for Judicial Review.

He alleges that the relationship between the GBPA and Jarol, which trades as Chances Games, is a contractual one based on the license that the latter has to operate in Freeport.

Mr Smith’s submissions argue that the dispute stems from Chances Games providing gaming services in Freeport, which it is not permitted to do, hence the alleged breach of its license.

“GBPA is seeking to ensure that Jarol complies with its contractual obligations,” he argued. “Given that Jarol is aggrieved by such action, the most appropriate means of redress is a private law action alleging breach of contract for damages and/or injunctive relief.”

Mr Smith continued: “The real purpose of Jarol’s application is to enable it to carry on the business of offering gaming services to the public in the Port Area by virtue of its existing GBPA license(s).

“The GBPA contends that Jarol is currently in breach of the terms of its license(s). Jarol is in effect seeking a public law remedy in respect of a private law issue of whether Jarol is currently in breach, and to bar the GBPA from freely negotiating any change to this private law license. This public law forum is simply inapposite for such a claim.”

Judicial Review is a mechanism that enables aggrieved parties to challenge decisions by government or legislative bodies, especially in cases where they are believed to have acted illegally, breached their authority or behaved irrationally.

Emphasising that his client “reserves its right” to address whether it can be subjected to Judicial Review, Mr Smith said: “Although GBPA may in some circumstances be susceptible to public law actions and remedies, this is not such a case. “

Not surprisingly, Chances Games (Jarol) and its attorney, Carlson Shurland, beg to differ. They are effectively arguing that the GBPA is trying to “usurp” the Gaming Board as the web shop industry’s regulator, and that the former has no power to issue provisional gaming licences - and charge associated fees - for their Freeport operations.

Chances Games is thus effectively asking the Supreme Court to determine who is the appropriate regulator and licensor for its Freeport operations, and to whom it should pay related gaming taxes.

Slamming the GBPA’s strike out bid as an “abuse of process”, Chances Games reiterated that the case was about whether the former “can legally and properly exercise the functions and powers of the Gaming Board under the Gaming Act 2014 and Gaming Rules 2015 in the context of its licensing arrangements with its licensees under the Hawksbill Creek Agreement”.

Ashley Evans-Carroll, one of Mr Shurland’s associate attorneys, alleged in an affidavit filed yesterday that the GBPA’s strike-out bid was “nothing more than a ploy... to further frustrate” the action by Chances Games.

She added that the dispute had “prejudiced” the web shop chain “in expanding its business”, and that the GBPA’s January 25, 2016, letter was “still a live issue and cannot be ignored” without Freeport’s quasi-governmental authority “reversing its position in a formal way”.

Jarol Investment wants the GBPA to both “rescind” that letter, requiring it to apply for a provisional gaming licence, and accept the Gaming Board’s regulatory jurisdiction in Freeport.

In that letter, the GBPA demands that Chances Games apply to it for a provisional gaming licence, adding that its authority stemmed from the Gaming Act 2014 and accompanying regulations.

Mr Smith subsequently admitted in an August 31, 2016, letter that his client had been “incorrect” in stating that the lawful basis for its licence request stemmed from the Gaming Act.

Instead, he asserted that the GBPA’s licensing authority was derived from the Hawksbill Creek Agreement, and made no mention of his client withdrawing its January 25, 2016, letter.

Chances Games fears that without the GBPA confirming the withdrawal of that letter, and its contents, the issue is left open to further conflict in the future, potentially exposing its Freeport operations to ‘double regulation and taxation’.