The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A web shop operator’s attorney yesterday argued that the Grand Bahama Port Authority (GBPA) does not “have a leg to stand on”, as it bids to strike out a legal action to determine the sector’s regulator in Freeport.

Carlson Shurland accused the GBPA’s attorney, Fred Smith QC, of employing “his bag of tricks” to deflect the substantive issues raised by Jarol Investments, parent of Chances Games.

He added that the GBPA’s ‘strike out’ application, filed on January 9, 2017, was “premature” given that the parties were due back before the Supreme Court this coming Monday on the web shop operator’s application to preserve the ‘status quo’.

Mr Smith, though, told Tribune Business that the GBPA had moved because Chances Games’ case continued to be based on “a red herring” - a letter whose contents he, on the quasi-governmental authority’s behalf, had already rescinded.

Given that he and the GBPA had withdrawn the January 25, 2016, letter that suggested its power to license Freeport-based web shops was based on the Gaming Act 2014, Mr Smith’s client argued in legal documents that Jarol/Chances case was therefore “frivolous, vexatious, and abuse of process and is bound to fail”.

Mr Shurland, though, in a statement to Tribune Business, said he had been “left speechless” by the ‘strike out’ application, given that he had previously agreed with Mr Smith to re-file Jarol’s action via an originating summons.

He also indicated his annoyance at the timing, given that the application was filed just one week before the Supreme Court is due to hear his client’s bid for an injunction to prevent the GBPA from acting on previous threats to cancel Jarl/Chances license until the substantive case is heard.

“It is clear that Mr Smith’s application is intended to delay the proceedings, having regards to their inability to substantiate any rational basis for their client’s claim to issue a Gaming License under the Hawksbill Creek Agreement,” Mr Shurland said.

He then acknowledged, though, the point at the heart of the GBPA’s application, namely that “they have already conceded the point that they do not have the power to issue a Gaming License under the Gaming Act”.

Still, Mr Shurland said: “The issue Mr Smith fails to address is that the court at no time determined the substantive issue on the merits of the case, and at each stage of the proceedings Mr Smith made an attempt to introduce tactics that are purposely designed to misdirect the intention of our [Jarol’s] application.

“Eventually his bag of tricks will be emptied, and then he will have to face the music, which is whether or not the Port Authority has the jurisdiction to issue licenses under the Hawks Bill Creek Agreement.”

The case brought by Jarol/Chances seeks to determine who is the web shop industry’s primary regulator in Freeport, and whether it is the Gaming Board or the GBPA that has the power to issue such licenses in the Port area.

But, explaining the reasons for his latest legal manoeuvre, Mr Smith said: “The Port Authority is applying to strike out the Jarol case on the basis that it is completely misconceived.

“There is an obvious issue regarding the licensing of web shop gaming in the Freeport area. It would be wonderful if this issue could be determined in this action, but Jarol continues to move the court on the red herring which we have sought to rid the case of.

“That is the Port Authority does not claim to be the licensing authority under the Gaming Act. Since this is the basis of Jarol’s claim, the Port Authority is moving to strike out the action.”

The GBPA is arguing that the January 25, 2016, letter at the centre of Jarol’s claim was rescinded by Mr Smith’s document of August 31, which admitted: “It is unfortunate that in its letter dated 25 January, 2016, the GBPA gave the impression that its licensing power derived from the Gaming Act.

“We accept that this reference to the Gaming Act was incorrect, but the basis of the GBPA’s licensing power deriving from the Hawksbill Creek Agreement was thereafter set out in the GBPA’s subsequent letter dated 3 February, 2016.”

Mr Smith added that the GBPA had “the power to license any and all businesses which wish to operate in the Port area” under the Hawksbill Creek Agreement, adding that it was just attempting to regularise Jarol/Chances’ license, because the company was conducting activities for which it is not licensed.

Hadassah Swain, a GBPA attorney, alleged in a January 9, 2017, affidavit that the foundation of Jarol’s case had been “completely overtaken by events” as a result of the August 31, 2016, letter.

As a result, she alleged that the case was no longer about whether the GBPA had the power to issue licenses under the Gaming Act, but if Jarol/Chances was operating in breach of their license agreement.

And, as a consequence, Ms Swain argued that the other issues were whether the GBPA could require Jarol/Chances to amend its license, and if the regulator could charge higher fees for web shop gaming.

“I humbly pray.... that the Originating Summons be set aside on the basis that it discloses no reasonable cause of action and/or is scandalous, frivolous, or vexatious and/or it may prejudice, embarrass or delay the fair trial of the action and/or it is otherwise an abuse of the process of the court,” Ms Swain alleged.

She and the GBPA argued that Jarol/Chances application for an interlocutory injunction should be struck out on the same basis, and that Ian Rolle, the GBPA’s president, be removed as a party to the proceedings.