By Richard Ashenheim , ContributorAS A result of the kindness of Jimmie, I have received a copy of the letter dated 27th January 2004 from Mrs. Barbara Lee, executive director of the Fair Trading Commission to Mr. Xavier Chin, Chief Executive Officer of Track Plus Price Ltd., together with a copy of the report under Section 17 of the Fair Competition Act, by the staff of the Fair Trading Commission into the complaint regarding opening hours restriction placed on Licensed Bookmakers.
It is a pity that the report by the staff of the Fair Trading Commission made no reference to the judgment in the Supreme Court delivered in November 1995 by His Lordship Mr. Justice Chester Orr in the case of The General Legal Council vs. The Fair Trading Commission, which interprets Section 17 and 35 of the Fair Trading Competition Act.
In that case, Mr. Justice Orr granted four declarations to the Jamaica Bar Association in performing its statutory functions and duties under the Legal Profession Act, to the effect that the General Legal Council is not amenable or subject to the jurisdiction of the Fair Trading Commission.
CONFLICT
In my opinion, the report by the staff in the instant case is in conflict with the interpretation of the Fair Competition Act, as laid down by Mr. Justice Orr.
Although Mr. Justice Orr granted four declarations and although I am of the opinion that all of the grounds on which those four declarations were made are equally applicable to the relation between the Betting, Gaming & Lotteries Act and the Fair Competition Act, I propose, in the interest of brevity, to deal in detail with only two of the grounds in this case. In the case before him, Mr. Justice Orr held firstly that in order for statutory provisions (in that case the Canons of Professional ethics promulgated under the Legal Profession Act) to contravene the provisions of the Fair Competition Act, it is necessary that there should be a conspiracy or combination or agreement with another person to restrain or injure competition unduly.
He held that the statutory provisions could not be deemed agreements but were exemplifications of the statutory powers conferred on the General Legal Council by the Legal Profession Act.
NO INFRINGEMENT
In the instant case, the times during which licensed premises may be opened to effect betting transaction are laid down by Parliament by means of Section 2 of the Second Schedule of the Betting, Gaming and Lotteries Act and are not the result of any agreement between the Betting, Gaming & Lotteries Commission or Caymanas Track Ltd. or any other body statutory or otherwise.
Equally in this case, since the opening hours are not the result or any agreement there cannot, in my opinion, be any infringement of the Fair Trading Act.
In this case involving the General Legal Council, Mr. Justice Orr also considered by way of a second ground whether the later Act, that is, the Fair Competition Act, could be said to repeal the Legal Profession Act.
He held that the Fair Competition Act is of general application and that the Legal Profession Act applies only to Attorneys-at-Law.
Similarly, in this case the Betting Gaming and Lotteries Act is a special Act, applying only to betting and gaming transactions. Mr. Justice Orr therefore applied the well known provision of statutory interpretation that a general enactment does not impliedly repeal an Act dealing with a special topic.
Consequently, he held that the Fair Competition Act does not repeal, amend or modify the Legal Profession Act. He therefore concluded that there was no intention that the Fair Competition Act was to interfere with the provisions of the Legal Profession Act or that there was any necessary inconsistency in the two Acts standing together.
For the same reasons that Mr. Justice Orr reached that conclusion, I find myself unable to conclude in this case that there is any necessary inconsistency between the Betting, Gaming & Lotteries Act and the Fair Competition Act standing together and consequently that the latter statute has not impliedly repealed the former Act.
RECOMMENDATION
Indeed, this seems to have been accepted by the staff of the Fair Trading Commission since the recommendations made by the staff is that section 2 of the Second Schedule of the Betting, Gaming and Lotteries Act be amended to remove the opening hours restriction placed on Licensed Bookmakers.
If there is a repeal of the provision by implication as appears to be the conclusion of the staff there is no necessity to amend the statute.
Accordingly, I invite the Fair Trading Commission and its staff to reconsider their findings in the context of Mr. Justice Orr's interpretation of the Fair Trading Act and thereby to give effect to His Lordship's decision which, in my opinion, is binding upon them.
