Jacpot Ltd v Gambling Regulatory Authority

Judicial review proceedings are classified as civil or criminal according to their subject matter. They are criminal only where they could culminate in conviction and punishment; otherwise they are civil. An order finally determining the lawfulness of an administrative decision is a final decision for appeal purposes. The value threshold for an appeal as of right is not met by a public-law right to a fair and lawful decision which cannot be valued in money. A gaming licence is not property merely because it has economic significance. Special leave requires an arguable point of law of general public importance which ought to be considered at that time. A statutory power to suspend or revoke a licence may leave the authority discretion as to sanction while reserving the underlying suitability opinion to another official.

Jacpot Ltd sought special leave to appeal after the Supreme Court of Mauritius dismissed its judicial review challenge to the revocation of gambling licences by the Gambling Regulatory Authority. The Supreme Court dismissed the application on 27 July 2016 and refused leave to appeal, holding that there was no appeal as of right. The Board considered whether the proceedings were civil, whether the Supreme Court’s order was final, and whether the value threshold under article 81(1)(b) of the Constitution of Mauritius was met. It then considered the discretionary principles for special leave and whether the challenge to the Authority’s decision raised an arguable point of law of general public importance.

1. Disposition. The Board refused special leave to appeal. The applicant was ordered to pay the respondent’s costs of the application.
2. Appeal as of right. The conditions in article 81(1)(b) of the Constitution of Mauritius were cumulative. Judicial review is not a sui generis category separate from civil and criminal proceedings. Following In re State of Norway’s Application (No 2) [1990] 1 AC 723 and Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147, judicial review is criminal only where the cause or matter could result in conviction and punishment. Jacpot’s proceedings were therefore civil.
3. Finality. The Board did not need to resolve the general conflict between the applications approach and the order approach. Under either approach, the Supreme Court’s order was final because it determined whether the Authority’s decision was lawful. The proceedings before the reviewing court were distinct from those before the Authority, so the possibility of a fresh administrative decision after quashing did not prevent finality, consistently with Becker v Marion City Corpn [1977] AC 271 (PC).
4. Value threshold. A money claim is unnecessary where an appeal determines the existence of a proprietary right or a proprietor’s right of disposal over property exceeding the threshold. Meghji Lakhamshi & Brothers v Furniture Workshop [1954] AC 80 and Becker v Marion City Corpn supported that approach. But property has its ordinary legal meaning. A gaming licence was merely authority to provide otherwise unlawful facilities, not property or a civil right to receive or retain. Jacpot’s right to a fair and lawful decision was a public-law right incapable of monetary valuation. No appeal as of right was therefore available, although judicial review proceedings can in some circumstances involve property or monetary rights.
5. Special leave and the statutory challenge. Under Practice Direction 3.3.3(a) of the Rules and Practice Directions of the Judicial Committee, special leave requires an arguable point of law of general public importance which ought to be considered at that time. Section 99(1)(k) of the Gambling Regulatory Authority Act 2007 gave the Authority discretion as to the response to the Commissioner of Police’s opinion, including suspension, revocation, no action, or a financial penalty under subsection (9). It did not permit the Authority to decide suitability for itself. The Commissioner’s opinion could be challenged for legal irrelevance or bad faith and was itself judicially reviewable, but no such challenge had been made. On the assumed facts, the remaining challenge was whether the Authority acted irrationally in treating the concerns as sufficiently serious to warrant revocation. That issue was essentially factual and lacked general public importance.

• Privy Council: considered the application for special leave and refused it. The applicant was ordered to pay the respondent’s costs.
• Supreme Court of Mauritius: dismissed the judicial review application on 27 July 2016 and refused leave to appeal to the Judicial Committee on the ground that no appeal as of right was available.