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[2011] NSWCA 299
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Hinkley v Star City Pty Ltd & Anor [2011] NSWCA 299 (22 September 2011)
Last Updated: 23 September 2011
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Case Title:
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Hinkley v Star City Pty Ltd & Anor |
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Jurisdiction:
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Before:
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Giles JA at [1], Young JA at [28], Tobias AJA at
[37] |
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Decision:
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(1) Leave to appeal granted. (2) Appeal
dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005
provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order
is taken to be entered when it is recorded in the Court's computerised
court
record system. Setting aside and variation of judgments or orders is dealt with
by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the
time limit of fourteen days in Rule 36.16.] |
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Catchwords:
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ADMINISTRATIVE LAW - natural justice - operation
of casino pursuant to Casino Control Act 1992 - exclusion of gambler by casino
operator - whether obliged to afford natural justice - casino operator was
occupier of casino premises
- entry only by licence of casino operator -
exclusion in exercise of right as occupier - no obligation - nor obligation had
exclusion
been in exercise of statutory power to exclude - exclusion
effective. |
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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Judicial Review of Administrative Action, Aronson, Dyer
and Groves, 4th ed. Lawbook Co. 2009 |
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Category:
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Parties:
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Andrew Shane Hinkley - Appellant Star City Pty Ltd
- First Respondent Sydney Harbour Casino Properties Pty Limited - Second
Respondent |
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Representation
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M Ashhurst SC & M Gunning - Appellant R
McHugh SC & K Richardson - First and Second Respondents |
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- Solicitors:
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Adams & Partners, Penrith -
Appellant Mallesons Stephen Jaques - First and Second Respondents |
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File number(s):
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Decision Under Appeal
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Publication Restriction:
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Judgment
- GILES
JA : The facts and principal relevant statutory provisions are set out in
the reasons of Tobias AJA, which I have had the considerable
advantage of
reading in draft. Drawing upon his Honour's reasons, I can briefly state why I
concur in the orders he proposes.
- The
appellant accepted that the Notice was an exercise by Star City of its right, as
occupier of the Casino, to exclude persons from
the Casino. He contended that
nonetheless Star City could not exclude him without first observing the rules of
natural justice, on
the grounds -
(a) he had a reasonable
expectation of being allowed to enjoy the public activity of legalised casino
gambling in New South Wales;
or
(b) the Notice was not just an exercise
by Star City of its right, but also an exercise of "public power" concerning
enjoyment of
that public activity; or
(c) where s 79 of the Casino
Control Act 1992 ("the Act") gave Star City a statutory power of exclusion,
it had to exercise its right consistently with any limitation on the exercise of
the statutory power, and the exercise of the statutory power was limited by
observance of the rules of natural justice.
- Each
of these grounds was contested by the respondents. The respondents also
contended that the Notice was effective as an exclusion
by Casino Properties, as
lessee in possession of the non-casino premises, from the non-casino premises,
with the practical result
that the appellant could not get to the Casino.
- The
appellant accepted that, if natural justice did not have to be afforded in
exercising the statutory power under s 79, his appeal must fail. That is plainly
so for ground (c), and in the view I take whether natural justice had to be
afforded in exercising
the statutory power is relevant to determining grounds
(a) and (b). Natural justice in exercising the statutory power was not argued
before the trial judge, although her Honour observed (at [165(c)]) that she
would have held that there was an obligation to afford
natural justice. Tobias
AJA has refrained from any final view in the absence of full argument, but the
matter was squarely raised
and addressed in submissions and is part of my
determination of all three grounds. Accordingly, I first deal with it.
Section 79 and natural justice
- An
exclusion order precludes the person to whom it is given from partaking of the
only legal casino gambling in the State, and where
the exclusion order was given
at the direction of the Commissioner of Police (s 81(1)) from partaking of
casino gambling in other States and Territories (s 81(8), (9)). The person is
exposed to a criminal penalty (s 84(1)). The respondents implicitly accepted
that a decision to give an exclusion order affected rights and interests so as
to require, subject
to displacement, observance of the rules of natural justice.
I will proceed on that basis, but it is not irrelevant in considering
displacement that the occasion for effect on rights and interests is a person's
participation in a voluntary and essentially recreational
activity; moreover,
one which (as the Act makes clear, eg. ss 4A and the extensive powers of the
Authority in Pt 3) is closely controlled in the public interest.
- A
requirement to observe the rules of natural justice may be displaced by statute,
but the displacement must be express or by necessary
implication: eg Kioa v
West [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason J ("clear manifestation of a
contrary intention"); Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 per
Mason CJ and Deane and McHugh JJ ("excluded by plain words of necessary
intendment"); re Minister for Immigration and Cultural Affairs, ex parte Miah
[2001] HCA 57; (2001) 206 CLR 57 at [126] per McHugh J ("clearly excluded").
There can be exclusion by implication, but an intention on the part of the
legislature to exclude
the rules of natural justice is not to be assumed or
spelled out from "indirect references, uncertain inferences or equivocal
considerations":
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396
per Dixon CJ and Webb J. It is a question of construction of the statute.
- A
number of matters count against observance of the rules of natural justice in
giving an exclusion order.
- First,
s 79 extends to, indeed directly contemplates, giving a verbal (meaning oral)
exclusion order when a person presents himself or herself
at an entrance to the
casino or is in the casino. An exclusion order may be given by the person for
the time being in charge of the
casino (s 79(1)), also indicating an ad hoc
occasion. If requested, the exclusion order must be put in writing and is
suspended while that is done
(s 79(2)), but if the exclusion order is put in
writing notice of it must be given to the Authority (s 79(4)). The exigencies of
giving an exclusion order on an ad hoc basis, for example if the person is
inebriated or disorderly, suggest that
even procedures adapted to the
circumstances in accordance with the flexibility of observing the rules of
natural justice would not
be realistic.
- Secondly,
the casino operator must give an exclusion order if directed by the Commissioner
of Police (s 81(1)), including in anticipation of a person entering the casino
(s 81(2)). The Commissioner of Police may himself or herself be giving the
direction simply because an exclusion order has been directed and
made in
another State or Territory (s 81A). There is a comprehensive exclusion of
challenge to a direction (s 81(7A); although see now Kirk v Industrial
Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW
(Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531), and to the directed
exclusion order (s 80(1A)). An exclusion order so given can not be subject to
review by the Authority pursuant to s 80 (s 80(1A)). If it had to tell a person
to whom the exclusion order was given why it was given, the casino operator
could only say that
it was directed to give the exclusion order, and the statute
is at pains to provide that the person can not do anything about the
direction
or the exclusion order. While not standing wholly against informing the person
and giving an opportunity to be heard, that
would be rather hollow. That
procedural fairness is not required can readily be seen as part of protecting
casino gambling from criminal
influences, in the public interest.
- Thirdly,
an exclusion order may be given by either the Authority, the casino operator or
the person for the time being in charge of
the casino (s 79(1)). If given by the
Authority, the Authority is not required to observe the rules of natural justice
(s 141(4)); compare, for example, the specific provision in s 59(3) for notice
of disciplinary action against a licensed casino employee and the opportunity to
make submissions. Again there is a comprehensive
exclusion of challenge to the
exclusion order (s 80)1A)). It would be most odd if giving an exclusion order
was bifurcated so that in the alternative events of an exclusion order given by
the casino operator or the person for the time being in charge of the casino the
rules of natural justice nonetheless had to be observed;
the more so when an
exclusion order would often be given by the Authority not in the exigencies of
the ad hoc basis abovementioned,
and so might be thought more readily to attract
procedural fairness.
- Fourthly,
where the exclusion order is given by the casino operator or the person for the
time being in charge of the casino, the
person to whom it is given has a right
of review by the Authority (s 80(1)); but in that review the Authority is not
required to observe the rules of natural justice (s 141(4)). Again, it would be
most odd if the giving of the exclusion order was subject to the rules of
natural justice although the review
was not.
- In
my view, a scheme inconsistent with observance of the rules of natural justice
is evident, and clearly so.
- The
person to whom an exclusion order is given has very limited rights. If the
exclusion order is oral, upon request it must be put
in writing. If it is given
by the casino operator or the person for the time being in charge of the casino,
there can be review by
the Authority, but there can be no challenge if it is
given by the Authority or at the direction of the Commissioner of Police.
Observance
of the rules of natural justice is expressly no part of the
Authority's action in giving an exclusion order or reviewing the giving
of an
exclusion order, even though in the case of review the person must have
specified the grounds for review (s 80(2)).
- Natural
justice when the casino operator or person for the time being in charge of the
casino gives an exclusion order is no part
of these rights, conformably with the
exigencies in which an exclusion order will often be given. The person to whom
it is given
may have a right of review, but that is all and it does not entail
observance of the rules of natural justice in giving the exclusion
order. The
scheme stems from the need for close control, in the public interest, of
legalised casino gambling.
- In
my opinion, natural justice did not have to be afforded in exercising the
statutory power in s 79.
Ground (a): Reasonable expectation
- For
the reasons given by Tobias AJA, Heatley v Tasmanian Racing and Gaming
Commission [1977] HCA 39; (1977) 137 CLR 487 and in particular the reasons of Gibbs J and
Murphy J in Forbes v New South Wales Trotting Club Limited [1979] HCA 27; (1978) 143 CLR
242 do not establish that any reasonable expectation from the public nature of
an activity trumps the right of the owner or occupier
of the land on which it
takes place to refuse entry to a member of the public without giving a reason.
The weight of authority is
to the contrary.
- The
appellant did not contest that he could be denied entry to the Casino in the
exercise of Star City's right as occupier of the
Casino. The issue was whether
Star City had to afford natural justice in denying entry, and the reasonable
expectation in question
was not that the appellant would be allowed entry, but
that he would be afforded natural justice by being given a reason for denial
of
entry and an opportunity to be heard. There can not be such a reasonable
expectation in the face of s 77 of the Act and the position that (as I consider
is the case) an exclusion order could be made pursuant to s 79 without affording
natural justice; to which may be added the notices placed by Star City asserting
Star City's entitlement to refuse
entry or withdraw permission to remain without
reason.
- The
appellant ultimately accepted that a member of the public presenting at an
entrance to the Casino could be refused entry, or after
admittance could be
required to leave, without Star City giving a reason or an opportunity to be
heard in accordance with the rules
of natural justice. The acceptance was in my
view correct. The appellant submitted that it was otherwise when there was
refusal of
entry by notice for a term or an indefinite period. However,
accepting that there is an entitlement to refuse ad hoc entry without
affording
natural justice is destructive of a reasonable expectation founded on the
availability to the public of the legalised gambling
facilities of the Casino,
and so is destructive of the necessary reasonable expectation where the refusal
of entry is by notice for
a term or an indefinite period.
Ground (b): Public power
- As
explained by Tobias AJA, the appellant's reliance on the reasons of Gibbs J in
Forbes v New South Wales Trotting Club Limited was misplaced, and
the approach of Murphy J in that case did not command acceptance and has not
since been applied. The appellant
linked his Honour's reference to the exercise
of public power to the so-called Datafin principle, from R v Panel on
Take-overs and Mergers, ex parte Datafin plc [1986] EWCA Civ 8; (1987) 1 QB 815, but that case
was concerned with judicial review of a decision of a private body exercising
"regulatory functions of government"
(at [74]), which Star City was not doing.
- The
exercise of a public power is not made out simply because Star City's decision
to permit or refuse entry affects any member of
the public who presents himself
or herself, and there is no more the exercise of a public power when Star City
has a monopoly of
the non-essential service of providing legalised casino
gambling. The Act makes legal what would otherwise be illegal, under strict
conditions including that there is only one casino operator and there can
be
entry only by licence of the casino operator . The casino operator is
itself subject to general direction by the Authority, and to particular
direction from the Commissioner of
Police as to giving exclusion orders. The Act
does not purport to control the right recognised in s 77, which the appellant
accepted remained available to Star City as occupier, and when legalised casino
gambling in New South Wales
is not an essential activity of life demanding
intervention in the public interest, the exercise by Star City of its right as
occupier
of the Casino is not the exercise of a public power.
- In
any event, to the extent that Star City be regarded as exercising a public
power, when the exercise of the statutory power in s 79 of the Act is not
subject to observance of the rules of natural justice the "public power"
exercise of the right as occupier can not be regarded
as requiring observance of
rules of natural justice.
Ground (c): Consistency with s 79 exclusion
- For
reasons earlier given, the exercise of the statutory power in s 79 of the Act
was not limited by observance of the rules of natural justice. For that reason
alone, this ground can not be sustained.
- Assuming
that Star City was obliged to observe the rules of natural justice in exercising
the power to give an exclusion order pursuant
to s 79, that does not mean that
the exercise of its right as occupier is similarly confined. The right and the
statutory power are very
different, and even the fact that a refusal of entry is
for a term or for an indefinite period does not take it to anything like
an
exclusion order. An exclusion order has provision for review (s 80). It has
penalties upon both the excluded person if the order is contravened (s 84) and
upon the casino operator and others if the person is known to have entered and
is not removed (s 85). There is an express power to remove (s 85(3)). An
exclusion order can have the consequence of exclusion from casinos of other
States or Territories (s 81A). The import of an exclusion order is quite
different from, and more significant than, that of refusal of entry, even for a
term or
indefinitely.
- As
earlier noted, the appellant accepted that a member of the public presenting at
an entrance to the casino could be refused entry,
or after admittance could be
required to leave, without Star City giving a reason or an opportunity to be
heard in accordance with
the rules of natural justice. Importation of natural
justice from a s 79 exclusion order breaks down if it is not imported in all
circumstances of exercise of the right as occupier. In my opinion, even
if Star
City was obliged to observe the rules of natural justice in exercising the power
to give an exclusion order pursuant to s 79, it did not have to exercise its
right as occupier consistently with that limitation on the exercise of the
statutory power.
General
- It
is not necessary to deal with the respondents' contention, which would itself
raise questions of observance of the rules of natural
justice which were not
fully covered in submissions. They should be left for further consideration if
and when they arise in the
future.
- It
was accepted that Star City could refuse entry in the exercise of its right as
occupier, and that its ability to do so was not
lost because of the statutory
power to give an exclusion order. The appellant's essential argument was that
Star City had to observe
the rules of natural justice because it had a monopoly
over legalised casino gambling in New South Wales. It may be accepted that
casino gambling has popularity, but it is not an essential service. Nor is Star
City its real controller; the Authority has the real
control. Star City has
occupation of the land on which the activity is conducted, and both statutory
obligations and commercial interests
to which it must and may look when doing
that which s 77 of the Act requires, namely, licensing entry upon the land.
There is no compelling occasion to require that, when it permits or refuses to
permit
entry, it give reasons for and a hearing concerning a refusal of entry,
nor on the construction of the Act is it required to do so.
- I
agree with the orders proposed by Tobias AJA.
- YOUNG
JA : I agree with Tobias AJA, but would wish to make two sets of comments.
- First,
I agree with Tobias AJA that we should not apply the approach of Murphy J in
Forbes v NSW Trotting Club Ltd [1979] HCA 27; 143 CLR 242, 274-5. This is
for three reasons. First, Cowell v Rosehill Race Course Co Ltd [1937] HCA
17; 56 CLR 605, which Murphy J considered was wrongly decided, is binding on us.
Secondly, the reason his Honour gave for distinguishing that case,
namely that
Cowell involved removal from one race meeting, whereas Forbes
involved exclusion from all meetings, does not, with respect, appear to me
to be sufficient. Thirdly, I do not consider that the fact
that in Cowell
Cowell bought a ticket to the race course, whereas in the present case there
is no ticket, is a reason for distinguishing Cowell .
- The
second set of comments involves the supposed doctrine of prime necessity. In
Vector Ltd v Transpowers New Zealand Ltd [1999] 3 NZLR 646, 666 [51],
Richardson P, a member of a five judge Court of Appeal, said that the doctrine
embodied the principle:
"that monopoly suppliers of essential services must charge no more than a
reasonable price".
- In
the Vector case the Court said, however, that the principle was best
viewed as a backstop common law remedy applied in the absence of other remedies
where there was no contra-indications as to its use and could be, as it was in
the Vector case, precluded by specific provision in legislation. The case
has been followed on a number of occasions in New Zealand, some of
which were
cited by Tobias AJA.
- In
Pacifica Shipping Ltd v Centreport Ltd [2003] 1 NZLR 433, Tipping J,
giving the judgment of the New Zealand Court of Appeal, said that the principle
did not oblige a supplier to accept any
offer that could be characterised as
reasonable, the onus was on the person seeking to invoke the principle to show
that the supplier
is seeking to charge more than a reasonable sum.
- It
seems to me that, whilst there are no Australian cases on the principle that I
have been able to find, the authority of the Privy
Council in Minister of
Justice for the Dominion of Canada v City of Levis [1919] AC 505 is probably
sufficient to say that there is such a principle in Australian law. I must say
that the principle has a very limited
operation and that is probably why there
are no reported examples of it. It is confined to cases where a statute confers
a virtual
monopoly on a corporation or individual with respect to an essential
commodity or service and the statute does not make provision
with respect to the
pricing of that commodity or service.
- The
principle applies in cases of water supply ( Minister of Justice case),
electricity ( Vector ) and where traders are compelled to use a
particular port or warehouse ( Allnutt ). I agree with Richardson P who
said in Vector at [49]:
"What constitutes a prime necessity will change over time."
- I
agree with Tobias AJA that a casino is not a prime necessity within the
doctrine, assuming that it does apply in Australia.
- I
have also read in draft Giles JA's reasons and agree with them.
- TOBIAS
AJA : The first respondent, Star City Pty Limited (Star City) is the holder
of the licence for, and operator of, the Star City Casino
(the Casino) located
at Pyrmont in Sydney. The second respondent, Sydney Harbour Casino Properties
Pty Limited (Casino Properties)
is the lessee of the whole of the Star City
Casino premises (the casino complex) under a lease from the Casino Liquor and
Gaming
Authority (the Authority), the registered proprietor of the site on which
the casino complex is constructed and in part of which
the Casino is located.
The Authority is constituted under the Casino, Liquor and Gaming Control Act
2007 (NSW) (the Authority Act).
- The
appellant, Andrew Shane Hinkley (Mr Hinkley), was a regular gambler at the
Casino from September 2004 to April 2010. By letter
dated 10 September 2010 (the
Notice), the General Counsel of Star City and Casino Properties (together the
respondents) wrote on
their behalf to Mr Hinkley giving him notice that any
express or implied licence he may have had to enter or remain upon any part
of
the casino complex was thereby withdrawn.
- By
summons filed in the Equity Division of the Supreme Court on 11 October 2010, to
which Star City and Casino Properties were joined
as defendants, Mr Hinkley
sought declarations that the decision of the respondents to issue the Notice
denied him natural justice
or procedural fairness and that the decision of Star
City and/or Casino Properties to issue the Notice was invalid, ultra vires and
of no effect. Other consequential orders were also sought.
- The
summons was heard by Ward J on 21 October and 26 November 2010. Her Honour
delivered judgment on 2 December 2010 rejecting Mr
Hinkley's claim that he was
entitled to natural justice or procedural fairness before the Notice was issued.
She therefore ordered
that his summons be dismissed with costs: Hinkley v
Star City Pty Limited [2010] NSWSC 1389. On 24 February 2011, Mr Hinkley
filed a summons in this Court seeking leave to appeal from her Honour's orders.
The application for
leave and the substantive appeal have been heard
concurrently.
Leave to appeal should be granted
- As
will appear, Mr Hinkley's appeal raises some important issues with respect to
the rights, if any, of a member of the public to
enter and/or remain within
private premises which the owner or occupier represents as being open to the
public for the purpose of
advancing its commercial interests. The other side of
that coin involves the power, if any, of that owner or occupier to exclude
a
member of the public from its premises without first affording that person
procedural fairness.
- The
foregoing issues are given particular significance in the present case where the
relevant occupier has a monopolistic right to
operate the only casino in the
State. In these circumstances the matters so raised justify the grant of leave
to appeal.
The relevant statutory provisions
- The
outcome of the appeal depends on certain provisions of the Casino Control Act
1992 (NSW) (the Act). It contains in s 3(1) a number of definitions relevant
to the issues in the appeal which are as follows:
" Authority means the Casino, Liquor and Gaming Control Authority
constituted under the Casino, Liquor and Gaming Control Authority Act 2007
casino means premises, or part of premises, defined as a casino for
the time being under section 19
casino licence means a licence in force under Part 2 to operate a
casino
casino operator means a person who is the holder of a casino licence
exclusion order means a written order under section 79 prohibiting a
person from entering, or remaining in, a casino
game means a game of chance or a game that is partly a game of chance
and partly a game requiring skill
gaming means the playing of any game
gaming equipment means any device or thing (including chips) used, or
capable of being used, for or in connection with gaming
inspector means an inspector within the meaning of the Casino, Liquor
and Gaming Control Authority Act 2007
operations , in relation to a casino, means:
(a) the conduct of gaming in the casino,
(b) the management and supervision of the conduct of gaming in the casino,
(c) money counting in, and in relation to, the casino,
(d) accounting procedures in, and in relation to, the casino,
(e) the use of storage areas in the casino, and
(f) other matters affecting, or arising out of, activities in the casino."
- Section
3(2)(a) of the Act provides, relevantly, that a reference to a function includes
a reference to a power, authority and duty.
- Section
4(1) of the Act renders lawful the conduct and playing of a game and the use of
gaming equipment provided in a casino by or
on behalf of the casino operator
being the holder of the licence for that casino under the Act. Section 4(2)
provides, amongst other
things, that the Unlawful Gaming Act 1998 (NSW)
does not apply to gaming in a casino.
- Section
4A sets out the " Primary objects of the Act ". It provides:
"(1) Among the primary objects of this Act are:
(a) ensuring that the management and operation of a casino remain free from
criminal influence or exploitation, and
(b) ensuring that gaming in a casino is conducted honestly, and
(c) containing and controlling the potential of a casino to cause harm to the
public interest and to individuals and families.
(2) All persons having functions under this Act are required to have due
regard to the objects referred to in subsection (1) when
exercising those
functions."
- Part
2 of the Act is headed " Licensing of casino ". Section 6 provides that
only one casino licence may be in force under the Act at any particular time.
Accordingly, the holder of
a casino licence has a monopoly on the lawful conduct
and playing of a game (as defined) to which, but for s 4, the Unlawful
Gambling Act 1998 would apply. This factor was heavily relied upon by Mr
Hinkley in his submissions on the appeal.
- Section
10 provides for the Authority to publicly invite applications for a casino
licence and s 18 provides that any such application may be granted or declined
by the Authority and, if granted, will be subject to such conditions
as the
Authority thinks fit. Section 19 provides that the boundaries of a casino are to
be defined in the casino licence subject to their being redefined by the
Authority.
Section 20 provides that a casino licence remains in force for the
period for which it is granted as specified therein. Section 21 states that a
casino licence confers no right of property upon the holder and is incapable of
being assigned or otherwise encumbered.
Section 22 empowers the Authority,
subject to giving the licensee at least 14 days to make submissions, to amend
the conditions of the licence
by substituting, varying, revoking or adding
conditions thereto.
- Part
3 of the Act is headed " Supervision and control of casino operators" .
Section 29 is of significance and I set it out in full:
"29 Directions to operator
(1) The Authority may give a casino operator a written direction that relates
to the conduct, supervision or control of operations
in the casino.
(2) It is a condition of a casino licence that the casino operator must
comply with such a direction as soon as it takes effect.
(3) The direction takes effect when the direction is given to the casino
operator or on a later date specified in the direction.
(4) The power conferred by this section includes a power to give a direction
to a casino operator to adopt, vary, cease or refrain
from any practice in
respect of the conduct of casino operations.
(5) A direction under this section is not to be inconsistent with this Act or
the conditions of the casino licence."
- Without
referring to the particular provisions, it is appropriate to observe that the
Act is replete with prescriptive provisions
as to the conduct and operation of
gaming in a casino by the casino operator. Furthermore, it would be fair to say
that although
the casino operator conducts and manages the casino and carries
out "operations" (as defined) in relation to it, the actual control
of the
casino and its operations is vested solely in the Authority to the point where
there is little a casino operator can do without
the prior approval of the
Authority. An example of this is contained in Part 4 of the Act relating to the
licensing of casino employees.
It provides for the licensing by the Authority,
subject to such conditions as it may impose, of a person referred to as a "
special employee ", who is defined in s 43(1) to mean a person who:
"a) is employed or working in a casino in a managerial capacity or who is
authorised to make decisions, involving the exercise of
his or her discretion,
that regulate operations in a casino, or
(b) is employed or working in a casino in any capacity relating to any of the
following activities:
· the conduct of gaming,
· the movement of money or chips about the casino,
· the exchange of money or chips to patrons in the casino,
· the counting of money or chips in the casino,
· the operation, maintenance, construction or repair of gaming
equipment approved by the Authority under section 68,
· the supervision of any of the above activities,
· casino security,
· any other activity relating to operations in the casino that is
prescribed for the purposes of this definition."
- Part
5 is headed " Casino operations ". By s 65(1), it is a condition of a
casino licence that gaming is not to be conducted in the casino unless the
facilities provided
in relation to the conduct and monitoring of operations in
the casino are in accordance with plans et cetera that are, for the time
being, approved by the Authority under that section. Section 66 provides for the
approval by the Authority
of the games that may be played in a casino as well as
the rules for those games. Section 67 empowers the Authority to give directions
in writing to a casino operator relating to the particular games that are or are
not to be available to be played in the casino as
well as the minimum and
maximum number of any particular game that is to be available to be so played.
Section 70(1) provides that
it is a condition of a casino licence that the
provisions that then follow must be complied with in the casino and that the
casino
operator is to be considered to have contravened that condition if they
are not complied with. There then follows some nine matters
that relate to the
conduct of gaming.
- Section
71(1) provides that it is a condition of a casino licence that the casino is to
be open to the public for gaming in accordance
with the Act on such days and at
such times as are for the time being directed by the Authority by order in
writing served on the
casino operator. However, that provision must be read
subject to s 77 (the terms of which are of critical significance to the outcome
of this appeal) and which I set out in full:
" Right of entry to casino
(1) A person enters and remains in a casino only by licence of the casino
operator, except as provided by this section and section
78.
(2) An inspector may enter, and remain in, a casino, or any part of a casino,
pursuant to the functions conferred or imposed on an
inspector by this Act."
(emphasis added)
- Section
78 is headed " Police powers of entry to casino ". Relevantly, s 78(2)
provides as follows:
"A police officer may, on being authorised by the Authority or an inspector
to do so, enter any part of a casino to which the public
does not have access
and may remain there for the purpose of discharging his or her duty as a police
officer."
- Also
of significance with respect to the submissions advanced on the appeal are ss 79
and 80 which, relevantly, are in the following
terms:
" 79 Exclusion of persons from casino
(1) The Authority or the casino operator or the person for the time being in
charge of the casino may, by order given to a person
verbally or in writing,
prohibit the person from entering or remaining in a casino.
(2) If a person is given such a verbal order and the person requires the
order to be given in writing, the verbal order is suspended
while the order is
put in writing (but only if the person remains available in the casino to be
given the written order).
(3) ...
(4) It is a condition of a casino licence that the casino operator must, as
soon as practicable after a written order is given to
a person under this
section by the operator or by the person for the time being in charge of the
casino, cause notice of the order
to be given to the Authority.
(4A) It is a condition of a casino licence that the casino operator must, as
soon as practicable after a written order is given to
a person under this
section by the operator following a direction given under section 81, cause
notice of the order to be given to
the Commissioner of Police.
(5) This section does not authorise the exclusion from a casino of any person
acting in the person's capacity as an inspector or other
authorised person, or
as a police officer.
80 Review of exclusion order
(1) A person who is given an exclusion order may apply to the Authority
within 28 days after the order is given for a review of the
order unless the
order was given by the Authority or at the direction of the Commissioner of
Police.
(1A) An exclusion order given by the Authority, or at the direction of the
Commissioner of Police, may not be challenged, reviewed,
quashed or called into
question on any grounds whatsoever before any court or tribunal in any legal
proceedings, or restrained, removed
or otherwise affected by proceedings in the
nature of prohibition or mandamus.
(2) An application for review must be made in writing and must specify the
grounds on which it is made.
(3) The Authority may make such inquiries as it thinks fit into the question
of whether or not the exclusion order should be overruled.
(4) ...
(5) On consideration of the grounds specified in the application for review
and the results of its inquiries, the Authority may overrule
the exclusion order
or allow it to stand and is to communicate its decision to the applicant in
writing.
(5A) The regulations may make provision for or with respect to matters to be
taken into consideration by the Authority in making its
decision with respect to
an application for review of an exclusion order.
(6) If the decision of the Authority is to overrule the exclusion order, the
decision operates to revoke the order but does not prejudice
the right of a
casino operator or person for the time being in charge of a casino, acting in
good faith, to give a further exclusion
order to the person affected.
(7) An application for review of an exclusion order does not stay or
otherwise affect the operation of the order pending the Authority's
decision on
the application."
- Section
81 (which was amended in 2010 but in its amended form was accepted as forming
part of the Act for present purposes) also bears
on the issues in the appeal and
relevantly provides as follows:
"(1) The Commissioner of Police may direct a casino operator in writing to
exclude a person from a casino by giving the person or
causing the person to be
given an exclusion order, and it is a condition of the casino licence that the
operator must comply with
the direction.
(2) The Commissioner may give such a direction in anticipation of the person
entering a casino.
...
(7A) A direction given under this section may not be challenged, reviewed,
quashed or called into question on any grounds whatsoever
before any court or
tribunal in any legal proceedings, or restrained, removed or otherwise affected
by proceedings in the nature
of prohibition or mandamus.
(8) The Commissioner of Police is to:
(a) notify the appropriate authority in each State or Territory of the making
of an exclusion order following a direction given under
subsection (1) and the
revocation of any such order, and
(b) provide the appropriate authorities with the name of the person subject
to the exclusion order and, where practicable, a photograph
of that person.
(9) In this section:
appropriate authority means:
(a) in relation to the Australian Capital Territory-the Commissioner of the
Australian Federal Police, or
(b) in relation to a State or Territory (other than the Australian Capital
Territory)-an authority exercising, in relation to the
police force of that
State or Territory, functions corresponding to those of the Commissioner of
Police in relation to the NSW Police
Force."
- Section
81A (which was also inserted into the Act in 2010 and was again accepted as
relevantly forming part of the Act for present
purposes) provides:
" 81A Direction to be made in relation to exclusion orders in other States
and Territories
(1) The Commissioner of Police is to give a direction under section 81 (1) in
relation to a person if the Commissioner becomes aware
that the person is
subject to exclusion from another casino following the giving of a similar
direction under a corresponding law.
(2) The direction is to be made as soon as practicable after the Commissioner
becomes aware that the similar direction under a corresponding
law has been
given.
(3) The Commissioner is to advise the Authority of any direction given in
accordance with this section as soon as practicable.
(4) A direction given in accordance with this section in relation to a person
cannot be revoked under section 82 while the person
remains subject to exclusion
from another casino following the giving of a similar direction under a
corresponding law.
(5) In this section:
another casino means premises, or part of premises, defined as a
casino for the time being under an Act of another State, or a Territory,
corresponding
to this Act.
corresponding law means a provision of an Act of another State, or a
Territory, corresponding to section 81."
- I
interpolate here that the effect of s 81(8) and (9) when combined with s 81A is
that an exclusion order made against a person in
respect of the Casino also acts
as an exclusion order in respect of casinos in other States and Territories and
vice versa where
those other States and Territories have casino legislation
containing a provision corresponding to s 81. Accordingly, the making
of an
exclusion order under s 79(1) has ramifications outside New South Wales in that
it has the effect not only of excluding a person
from the Casino but also from
the casinos of other States and Territories.
- Section
82 relates to the duration and revocation of exclusion orders. Section 82(1)
provides that an exclusion order remains in force
in respect of a person unless
and until it is revoked by the person who gave the order. By sub-s (2) where
such an order is given
by a person for the time being in charge of a casino, it
may be revoked by any other person who is for the time being in charge of
the
casino or by the casino operator. However, s 82(3) provides that an exclusion
order given at the direction of the Commissioner
of Police may not be revoked
except with the Commissioner's written approval.
- Section
84 is headed " Excluded person not to enter casino ". It states the
consequences where a person enters or remains in a casino contrary to an
exclusion order. It relevantly provides
as follows:
"(1) A person...the subject of an exclusion order must not enter or remain in
a casino to which the order relates.
Maximum penalty: 50 penalty units [one penalty unit = $110.00] or
imprisonment for 12 months, or both."
- By
s 85, the person for the time being in charge of a casino, an agent of the
casino operator or a casino employee must, as soon as
practicable after it
becomes known to the person that a person the subject of an exclusion order is
in the casino, notify an inspector
and then remove the person or cause the
person to be removed from the casino. Failure to do so attracts a maximum
penalty of 20 penalty
units. Section 85(3) then provides as follows:
"(3) It is lawful for a person to whom this section applies, using no more
force than is reasonable in the circumstances:
(a) to prevent a person the subject of an exclusion order from entering the
casino, and
(b) to remove such a person from the casino or cause such a person to be
removed from the casino."
- Section
90(1) provides that for the purposes of the Environmental Planning and
Assessment Act 1979, a casino is to be considered to be a place of public
entertainment and the conduct of operations in a casino is to be considered
to
be use as a place of public entertainment. It is apparent from the terms of s
90(1) that the categorisation of a casino as a place of public entertainment is
solely for planning purposes.
- Part
8 of the Act relates to the payment of casino duty. Section 114(1) provides that
a casino duty is to be paid to the Authority
in respect of each casino licence
and, by sub-s (2), that that duty is to be as agreed from time to time by the
Treasurer and the
casino operator concerned or, in the absence of agreement, as
determined by the Treasurer from time to time. The duty paid to the
Authority is
to be paid into the Consolidated Fund.
- Part
10 of the Act is headed " Additional functions of Authority and
administrative matters ". Section 140 sets out the objects of the Authority
under the Act in the following terms:
"(a) ensuring that the management and operation of the casino remains free
from criminal influence or exploitation, and
(b) ensuring that gaming in the casino is conducted honestly, and
(c) (Repealed)
(d) containing and controlling the potential of a casino to cause harm to the
public interest and to individuals and families."
- Section
141(1) provides that the Authority has such functions as are necessary or
convenient to enable it to achieve its objects under
the Act. Sub-section (2)
then sets out some specific functions including keeping under constant review
all matters connected with
casinos and the activities of casino operators.
Sub-section (4) is of importance and is in the following terms:
"(4) In the exercise of its functions under this Act, the Authority is not
required to observe the rules of natural justice (except
to the extent that it
is specifically required to do so by this Act)."
The factual background
- The
site upon which the casino complex is located is owned by the Authority which
leased the whole of the Casino complex to Casino
Properties. The Casino is
located within the boundary of the overall casino complex and is accessible only
via what I shall refer
to as the non-casino premises. Thus to enter the Casino,
a patron must first pass through some part of the land that is leased to
Casino
Properties but is not the subject of the casino licence and, therefore, is not
an area governed by the provisions of the Act.
- By
an Occupational Licence Agreement dated 14 December 1994, Casino Properties
granted a non-exclusive licence to Star City to occupy,
in effect, the casino
complex. Clause 2.1 of the licence agreement made it clear that it conferred a
contractual right only and that
Star City obtained no proprietary estate or
interest in the casino complex (being the premises the subject of the licence)
or any
part thereof.
- The
evidence established that there were 17 entrances to the Casino from the
surrounding non-casino premises. An employee of Star
City is stationed at each
of those entrances for the purpose of vetting those who seek to enter. At every
entrance to the Casino
there is a large sign which, relevantly, states the
following:
"CASINO CONTROL ACT 1992
...
RESTRICTED ACCESS
...
Star City has the right to refuse entry to any person, including those
considered to be improperly dressed or behaving in an inappropriate
manner.
Star City reserves the right to withdraw any person's permission to remain in
the premises without reason and to inspect any bag at
any time."
- By
letter dated 27 April 2010, the Security Manager of the Star City Security
Department wrote to Mr Hinkley enclosing an exclusion
order that had been issued
to him by Star City pursuant to s 79(1) of the Act and dated 23 April 2010 (the
Order). The letter stated
that the Order was issued in respect of conduct of Mr
Hinkley relating to "illegal and undesirable activity" on 23 April 2010. The
letter also stated that the effect of the Order was that from 23 April 2010, Mr
Hinkley was not permitted to enter any gaming areas
of the Star City Casino and
that the Order would remain in force until revoked. The letter referred to the
right of review under
s 80.
- The
Order itself relevantly stated:
"Pursuant to section 79 of the Act you are prohibited from entering or
remaining on the premises of Star City (The Casino) while this
Order is in
force.
This Order shall remain in force from Friday, 23 April 2010 until such time
it is revoked by the person who gave this Order."
- The
Order also referred to the right of review under s 80 and stated that
non-compliance with the Order could result in Mr Hinkley
being convicted of a
criminal offence. Reference was made to s 84 of the Act which, as recorded at
[23] above, provides for a maximum
penalty of 50 penalty units (equivalent to
$5500) or imprisonment for 12 months, or both.
- By
letter dated 18 May 2010, Mr Hinkley's solicitors exercised his right of review
to the Authority pursuant to s 80. The attention
of the Authority was drawn to
the fact that the conduct and allegations referred to in the Order (or more
accurately the covering
letter of 27 April 2010) had not been brought to Mr
Hinkley's attention and it was asserted that the casino operator had not
followed
due process and had not observed the rules of natural justice.
- By
letter dated 29 July 2010, the Director, Casino and Authority Operations,
advised that the Authority had decided not to revoke
the Order. Mr Hinkley then
requested that Star City revoke the Order, which it did by letter dated 23
September 2010. That letter
noted that the exercise of the statutory power of
revocation was independent of any exercise by Star City and/or Casino
Proprieties
of their proprietary right to withdraw any licence that Mr Hinkley
might have to enter or remain upon the casino complex (including
the Casino). It
also stated that the letter was not an invitation for Mr Hinkley to enter the
complex.
- However
prior to the revocation of the Order on 23 September 2010, Star City and Casino
Properties had issued the Notice on 10 September
2010 in the form of a letter to
Mr Hinkley's solicitor. It was in the following terms:
"Ref: Withdrawal of licence to enter or remain upon Star City premises
Star City Pty Ltd and Sydney Harbour Casino Properties Pty Ltd (together
'Star City') hereby give notice that any express or implied
licence you may have
to enter or remain upon any part of the Star City premises, located at 80
Pyrmont Street, Pyrmont NSW 2009,
is hereby withdrawn. You must not enter the
Star City premises.
This withdrawal of licence will be effective unless and until it is expressly
reinstated in writing. Any advertising or promotional
material received by you
should not be taken to be a reinstatement of the licence or an express or
implied invitation to you to enter
the Star City premises.
This withdrawal of licence is an exercise of the proprietary rights of Star
City. It is not an exercise of the statutory power of
Star City Pty Ltd to make
an exclusion order under s 70 of the Casino Control Act 1992 (NSW). This
withdrawal of licence is independent of any exclusion order and will remain
effective irrespective of whether Exclusion
Order No 7215 or any other exclusion
order which may be issued from time to time is revoked, quashed or otherwise
ceases to be of
effect.
If you attempt to enter the Star City premises, you will be trespassing. Star
City may use reasonable force to prevent you from entering
or to remove you from
the Star City premises. Star City may also contact the Police if you attempt to
enter the Star City premises."
- The
Authority's solicitors sent a copy of the letter to Mr Hinkley's solicitors. Its
covering letter explained that the withdrawal
of the licence was an exercise by
Star City and Casino Properties of their proprietary rights and was independent
of Star City's
statutory power to make an exclusion order under s 79 of the Act.
Reference was made to s 77(1) of the Act and to the decision of
the High Court
in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977)
137 CLR 487 at 506-507, 511 as authority for the proposition that Star City and
Casino Properties were not obliged to observe the rules of natural
justice in
exercising their respective proprietary right to revoke any express or implied
licence Mr Hinkley may have had to enter
or remain upon the casino complex. It
was that issue that was in contest before the primary judge.
The statement of the issues by, and the findings of, the primary judge
- One
of the issues contested before her Honour was whether Casino Properties had the
right to exclude Mr Hinkley from the non-casino
premises. The non-casino
premises, it was accepted, was private property in respect of which the Act had
no application as it was
outside the boundaries of the Casino as determined by
the Authority under s 19 of the Act. Ultimately, it was unnecessary for her
Honour to finally determine that issue as she rejected Mr Hinkley's submission
that Star City was obliged to afford him procedural
fairness or natural justice
before it excluded him from the Casino. However, on the assumption that Star
City was not entitled to
so exclude Mr Hinkley without first affording him
procedural fairness, her Honour expressed the tentative view that it was not
open
to Casino Properties to exclude Mr Hinkley from the non-casino premises,
the traversing of which was necessary for him to gain access
to the Casino.
Casino Properties challenged that tentative finding and, by leave, filed a
notice of contention in which it was contended
that her Honour should have held
that, as lessee in possession of the non-casino premises, Casino Properties was
entitled to exclude
Mr Hinkley from those premises and had effectively done so.
- As
appears from the primary judge's reasons, the legal basis relied upon by Mr
Hinkley in seeking to invalidate the Notice underwent
some refinement as the
case proceeded from the interlocutory hearing to the final hearing. As she noted
at [13] of those reasons,
the principal basis upon which it was initially
contended by Mr Hinkley that the respondents had an obligation to afford him
procedural
fairness was founded on the respective statements of Gibbs J and
Murphy J in Forbes v New South Wales Trotting Club Limited [1979] HCA 27;
(1979) 143 CLR 242. Her Honour records that it was contended that by reason of
the public nature of the facility (the Casino) operated by Star City within
the
casino complex and its statutory right to make an exclusion order under s 79 of
the Act, Star City was required to exercise its
proprietary right to exclude
persons from the Casino in a manner consistent with the exercise of its
statutory right of exclusion
under s 79 ( Forbes at 269 per Gibbs J). In
addition, or alternatively, Star City's statutory and proprietary rights of
exclusion affect members of the
public to such a degree that the right to
exclude is a public right and the exercise of that right is a public power which
requires
that natural justice be observed before it is exercised ( Forbes
at 274-275 per Murphy J).
- It
was further submitted that Star City, having purported to exercise its statutory
right to make an exclusion order under s 79 of
the Act, could not then seek to
circumvent its obligation to provide procedural fairness in the making of that
order by giving that
act another name. This last-mentioned submission was based
upon the proposition that in exercising its power to make the Order pursuant
to
s 79(1) of the Act, Star City as the casino operator was bound to afford Mr
Hinkley procedural fairness, notwithstanding that
under the same provision the
Authority could issue an identical exclusion order without having to provide
procedural fairness: see
s 141(4).
- The
primary judge then noted various alternative bases for the contention that Star
City, and for that matter Casino Properties, were
bound to observe the rules of
natural justice. However, as those alternative bases are no longer pressed, it
is unnecessary to refer
to them. When the matter came to a final hearing, Mr
Hinkley's principal claim to be entitled to natural justice was, according to
her Honour, advanced on a different basis, namely, that Star City had no common
law right to grant a licence to enter the Casino
(and thus no common law right
to exclude patrons from those premises). It was contended that any common law
rights it may formerly
have had were abrogated by ss 77 and 79 of the Act. In
particular, it was submitted that s 77 operated to codify the right of Star
City
as the casino operator to regulate entry to the Casino. It was contended that
the effect of s 77 was that the only entitlement
to enter those premises was a
statutory entitlement so that any licence granted by the casino operator
pursuant to s 77 was a statutory
licence which could not be revoked without
first providing procedural fairness. Ultimately the primary judge rejected this
submission
and that finding has not been challenged.
- Accordingly,
her Honour stated the issues for her determination at [30] ff of her reasons.
The first question for determination was
whether Star City has a separate
independent common law right to grant and/or refuse access to the Casino; in
other words, whether
Mr Hinkley, when entering the Casino, did so pursuant to a
common law licence or a statutory licence. As I have indicated, her Honour
determined that it was pursuant to a common law licence and that conclusion has
not been challenged.
- The
second issue which constituted the central question for determination was
whether, even if Mr Hinkley entered the Casino pursuant
to a common law licence
granted by Star City, it was required to afford him procedural fairness before
withdrawing that licence.
- Ultimately,
her Honour recorded at [34] of her reasons that in final addresses, Mr Hinkley
reformulated the issues for determination
into the following three propositions:
first, whether the right to enter the casino premises is a statutory right under
s 77 of the
Act; secondly, if it is not, whether Star City is nevertheless
obliged to exercise its common law proprietary right (which, on that
hypothesis,
it was conceded it would have) to grant a licence to enter the Casino or
withdraw or decide not to grant that licence
consistently with the manner in
which it would be obliged to exercise its power of exclusion under s 79 of the
Act (applying the
reasoning of Murphy J in Forbes ); and, thirdly, if Mr
Hinkley is correct on either of those points, whether Casino Properties could
nevertheless bring an action
in trespass against Mr Hinkley (as an invitee of
Star City) so as to legally prevent him from having access to the Casino from
the
non-casino premises. It is this third issue which, as I have indicated, her
Honour only determined tentatively against Casino Properties
and which is the
subject of its amended notice of contention.
- Her
Honour then proceeded to summarise her findings with respect to the foregoing
issues at [37] of her reasons:
(a) The right to enter the
Casino is not a statutory right under s 77 of the Act but a licence granted at
common law, the limitation
on the nature of that right having been given
statutory recognition, but not statutory force, by s 77 of the Act;
(b)
Star City is not obliged in the exercise of its common law proprietary right (to
withdraw a patron's licence to enter the Casino
or not to grant such a licence)
to afford natural justice or, if there be any relevant difference, to act
consistently with the manner
in which it would be obliged to exercise its power
to make an exclusion order under s 79 of the Act; and
(c) If Star City
has not legally terminated a licence granted by it to permit Mr Hinkley to enter
the Casino or has not lawfully withdrawn
in advance any licence for him to do
so, then Casino Properties would not be able to refuse entry or exclude from the
non-casino
premises a person exercising a licence to enter the Casino granted by
its own licensee, Star City, unless the person was exercising
the licence for
purposes not reasonable and incidental to the right of Star City to use the
Casino in accordance with its licence.
- The
primary judge then proceeded to set out her reasons for coming to these
conclusions of which only the second and third are presently
relevant. In this
respect her Honour's finding on the third issue was expressed by her to be
tentative.
- Her
Honour agreed with the respondents' submission that each time a member of the
public such as Mr Hinkley visits the Casino and
is permitted entry, there is the
grant of a new common law licence which is revocable after the licensee has
entered those premises.
On this basis, it was submitted by the respondents that
as Mr Hinkley never had any freestanding or ongoing licence to enter or remain
on the casino premises, there could be no legitimate expectation on his part
that he would, on any occasion, be permitted entry in
light of the express
reservation of the casino operator's right to refuse entry or to ask a member of
the public to leave the casino
premises in accordance with the terms of entry
located at each entry point. The relevance of the existence of such a legitimate
expectation
underpinned Mr Hinkley's submission that he could only be denied
that expectation if he was first accorded procedural fairness or
natural
justice.
- The
respondent submitted that, other than in respect of the persons to whom a
statutory licence is granted by ss 77(2) and 78(2) (where
there is no suggestion
that the licence is one granted by the casino operator), there is nothing in the
legislation to warrant the
conclusion that Star City does not retain the common
law right as an occupier (with acknowledged actual possession of the Casino)
to
refuse to grant (or to revoke once granted) a licence to enter those premises.
At [97] and [111] of her reasons, her Honour accepted
this submission.
- The
primary judge then addressed the question as to whether, when exercising the
common law right to refuse to grant or to revoke,
if granted, a licence to enter
the Casino, Star City was required to afford natural justice. In discussing this
issue, her Honour
referred in some detail to the decisions of the High Court in
Heatley v Tasmanian Racing and Gaming Commission and Forbes v New
South Wales Trotting Club Limited . Both before the primary judge and on
appeal, Mr Hinkley relied heavily upon what Aickin J said in Heatley and
upon what Gibbs J and Murphy J respectively said in Forbes . It is
therefore convenient at this point to analyse those two authorities, drawing on
what her Honour said about them with the addition
of some observations of my
own.
(a) Heatley v Tasmanian Racing and Gaming Commission
- In
Heatley, the High Court was required to consider the exercise by the
Tasmanian Racing and Gaming Commission (the Commission) of its power under
s
39(3) of the Racing and Gaming Act 1952 (Tas) to give a written notice
requiring a person to refrain from entering any racecourse or racecourses
specified in the notice
or from racecourses generally while the notice was in
force. Such a notice was issued to Mr Heatley. The Commission was not the owner
or occupier of any of those racecourses the subject of the notice. The High
Court held that the Commission was required to observe
the rules of natural
justice in exercising its statutory power to issue what was referred to as a
warning-off notice. One immediate
and obvious difference between that case and
the present is that whereas the Commission was not the owner or occupier of any
of the
racecourses to which the notice applied, Star City was the occupier of
the Casino in respect of which it issued the Notice.
- The
leading judgment of the majority was delivered by Aickin J, with whose reasons
Stephen J agreed. At 506, his Honour said:
"Since the decision in Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56
CLR 605 there has been no doubt that a member of the public, admitted to such
places as theatres or racecourses, has only a revocable licence
from the owner
or lessee of the premises, and that revocation, even in breach of contract, is
effective so that such person may be
required to leave the premises. Needless
to say the owner of such premises may refuse to admit any person without
assigning any reason. Members of clubs which own or occupy premises are in a
special position." (Emphasis added)
- At
507-508, his Honour, in effect, contrasted the common law situation of an
owner-occupier of a racecourse to the position of the
Commission under s 39. He
said:
"Under s 39 the Commission is given power to order such a person to stay away
from a specified racecourse or all racecourses for a
specified or an indefinite
period and the service of such a notice on him at a racecourse makes it an
offence to remain thereon.
It is also true to say that any member of the public
has a legitimate expectation that upon payment of the appropriate charge he
will
be admitted to racecourses. They are in a practical sense 'open to the public'
and indeed by announcements and advertising their
owners invite and seek to
encourage the public to attend. This is not an expectation that the Commission
will act in some particular
way but an expectation by members of the public that
they will be able to enjoy the right or liberty granted to them by the owner
to
go onto the racecourse, ie that they will be permitted to enter along with other
members of the public in response to the owner's
implied invitation. That
expectation exists by reason of the nature of the premises and the fact that
members of the public are invited
to attend and freely admitted on payment of a
stated charge. The fact that the owner may eject them even in breach of
contract, though no doubt known to some racegoers, does not detract from
that
expectation, nor does the fact that the owner may refuse to admit any particular
person without giving any reason . Section 39(3) provides as it were an
overriding exception or control which sets aside those rights and expectations.
If an appropriate
order is made it destroys the right of the member of the
public presently upon a racecourse to remain there and if it is made at
a time
when he is not on a particular racecourse then it destroys his expectation of
being entitled on payment of the appropriate
charge to enter on the next
appropriate occasion. If, like the present order, it is expressed in general
terms in respect of all
racecourses (including dog-racing courses) and for an
indefinite period in the future, it puts the addressee at the disadvantage
of
being deprived of the opportunity available to all other members of the public
of going upon such racecourses on payment of the
usual charge. It is, of
course, only an opportunity or an expectation and not a legally enforceable
right in the sense that the individual member
of the public cannot insist upon
entering or remaining contrary to the will of the owner , though they may of
course be entitled to damages for breach of contract and in that sense have some
enforceable right.
The concept of a 'reasonable expectation' of some entitlement, ie an
expectation that some form of right or liberty will be available,
or will not be
taken away without an opportunity for the subject to put his case to the
relevant governmental authority armed with
the compulsory power in question is a
relatively recent development. It was first expressed by Lord Denning MR in
Schmidt v Secretary of State for Home Affairs [1968] EWCA Civ 1; [1969] 2 Ch 149 ; [1969] 1
All ER 904. In that case both Lord Denning MR and Widgery LJ were disposed to
regard a 'legitimate expectation' as sufficient to confirm an entitlement
to
treatment in accordance with the principles of natural justice by the relevant
governmental authority." (Emphasis added)
- After
noting that the case before him was not concerned with an expectation that a
relevant government authority will exercise its
statutory power in a particular
manner, his Honour continued (at 509) in the following terms:
"What we are concerned with is an expectation on the part of members of the
public that they will continue to receive the customary
permission to go onto
racecourses upon the payment of a stated fee to the racecourse owner. Members of
the public do, it seems to
me, expect that if they present themselves at the
gate of a football ground or a racecourse or a dog-racing course and tender the
stated entrance fee that they will be admitted, because generally speaking it is
in the interests of the owner or occupier that they
should in fact attend the
relevant game or meeting, and upon receiving such permission they then have what
is properly called a right
as against all the world (save the owner) to remain
there for the duration of the relevant event.
The statutory power which s 39(3) gives the Commission is one which enables
the Commission to destroy that right, as well as to destroy
the expectation that
they will on future occasions be granted the like right in respect of subsequent
race meetings."
- Again,
at 510, his Honour observed:
"I do not think that this is a case in which one can properly say that the
legislature has in fact so dealt with the manner in which
this particular power
is to be exercised as to exclude the requirements of natural justice."
- Accordingly,
his Honour held (at 516) that fairness required that the person affected should,
save in an emergency, be given notice
by the Commission of its intention to
issue a warning-off notice and of the grounds of that proposed action and should
be afforded
an opportunity to make representations to the Commission on his
behalf which it must consider before taking action. A notice effective
for an
indefinite period should not be issued without compliance with at least those
procedural requirements.
- Mason
J (at 494) agreed with the reasons given by Aickin J
"...to support the conclusion that the provisions of the Racing and Gaming
Act 1952 (Tas) on their true construction do not exclude the requirements of
natural justice in their application to the exercise of the
power conferred by s
39(3) of the Act and for the further conclusion that these requirements were
attracted in the instant case because
the applicant as a member of the public
had a legitimate expectation that he would be admitted to race meetings on
racecourses in
Tasmania on payment of the stipulated charge, whatever that might
be, an expectation that would be defeated by the issue of a valid
notice under
the sub-section."
- The
other member of the majority, Murphy J, referred to the power of the Commission
under s 39(3) and the provisions of s 39(8) which
made it an offence for a
person served with a warning-off notice to enter a racecourse contrary to the
notice and then continued
in the following terms (at 495):
"The exercise of the power will probably have an adverse effect on the person
and his reputation and possibly his livelihood. It will
seriously alter his
legal position. If he enters a racecourse, he becomes liable to the penalties in
s 39(8). He may not lawfully
enter a racecourse even if the club or owner of the
racecourse wished him to enter and did all it could to confer on him a
proprietary
right to do so.
The strong presumption is that the legislature did not intend to authorize
the Commission (in exercising its power of warning-off)
to depart from the
standards of official behaviour towards individuals which are basic to every
civilized society. These standards
referred to as natural justice, due process,
or the rule of law, require that when such public power is exercised, the person
affected
should be given an opportunity to be heard before the order is made to
show why it should not be made. This involves notice of the
proposed order and
of the matters alleged against him, and an opportunity to refute or explain or
advance reasons against making
the order."
- I
note the reference by Murphy J to the fact that the Commission, when exercising
its power of warning-off, was exercising what he
referred to as a " public
power " and that before such a power can be exercised, natural justice must
be afforded to the person to whom the exercise of the power
is intended to be
directed. His Honour returned to this question of the exercise of a public power
in Forbes to which I now turn.
(b) Forbes v New South Wales Trotting Club Limited
- As
the primary judge observed at [126] of her reasons, Heatley was a case
where the body issuing the relevant notice was not the owner or occupier of the
premises in question. Forbes concerned the position of an owner (the
Club) of two trotting courses which also held powers in relation to the
exclusion of patrons
from other courses under its control.
- The
Club controlled trotting in the State by the consent of the government and all
the trotting clubs in the State. It also conducted
trotting meetings on two
courses that it owned at Harold Park and Menangle. It administered trotting
under the Rules of Trotting
(the Rules). Rule 28 (r 28) of the Rules empowered
the committee of the Club to warn any person off any course that it controlled,
including a course in which it had no proprietary interest.
- The
Club issued a notice excluding Mr Forbes from admission both to the two paceways
it owned and to "any other Course or Courses
which may now or in the future be
occupied by or come under the control of the New South Wales Trotting Club Ltd"
(the notice). Mr
Forbes challenged the validity of the notice on the basis that
he had not been afforded procedural fairness before it was issued.
It was
conceded in that case that if there was an obligation to observe the
requirements of natural justice, the Club had not done
so. It was further
conceded by the Club when the matter came before this Court, and not disputed
before the High Court, that the
Club was required to observe the rules of
natural justice when exercising its powers under r 28.
- As
the primary judge noted at [130] of her reasons, the question for consideration
by the High Court (and prior thereto, this Court)
was whether the notice was an
attempted (and, if so, admittedly invalid) exercise of the power conferred by r
28.
- In
the High Court, Barwick CJ, who dissented, summarised (at 249) the reasoning of
the majority (Hutley and Samuels JJA) in this Court
and that of Mahoney JA who
dissented. The Chief Justice observed that Mahoney JA had held that a contract
existed between Mr Forbes
and the Club derived from the Rules which exclusively
defined the powers of the Club in respect of "warning-off" and which limited,
if
they did not supplant, the Club's proprietorial rights. Further, Mahoney JA
appeared to consider that the Rules conferred on Mr
Forbes a right of entry into
the Club's paceways and that the Club's resolution was a warning-off under the
Rules and void for non-observance
of the requirements of natural justice.
- The
majority in the High Court comprised Gibbs, Stephen, Murphy and Aickin JJ.
Stephen J (at 272) agreed with Aickin J subject to
one reservation which related
to the precise grounds for rejecting the Club's submission concerning r 28. It
was the Club's case
that its resolution to issue the notice could be supported
as valid at least with respect to the two trotting courses it owned and
occupied. Stephen J rejected that submission for the reason that an ineffective
exercise of the power to "warn-off" conferred by
r 28 could not be saved or made
good by calling in aid the existence of the quite distinct power of the Club
arising not from any
rule but simply from its status as owner and occupier of
those two courses. The present was not a case, his Honour said at 273, of
the
exercise of some specific power or jurisdiction found to be sustainable on
grounds other than those in fact relied upon at the
time of exercise; rather, it
was a case of the purported (but in fact vitiated) exercise of a particular
power which might only be
validly exercised, and thus give rise to legal
consequences, if exercised with due regard to the requirements of natural
justice.
- In
his reasons, Aickin J also noted (and rejected) the argument of the Club that
the purpose of the resolution was to exclude Mr Forbes
from its own courses and
that it should not be construed as an exercise of the power given by r 28
because that power was not effectively
exercised for want of compliance with the
rules of natural justice. The problem, his Honour noted at 277-278, arises
because the
Club has two different capacities, each carrying its own powers and
authorities. He then observed (at 278):
"As a landowner it has the ordinary rights and powers of the owner of land,
including the power to refuse admission to the land to
such persons as it may
choose, and to remove persons therefrom who have no interest in the land,
notwithstanding that they may be
there pursuant to permission granted under a
binding contract. In its capacity as the controlling body for trotting in New
South
Wales it has the powers and authorities given to it under the Rules of
Trotting which include the power to warn off which carries
consequences far
wider than the confines of its own land and the courses which it operates
thereon."
- Aickin
J then held that the Club's resolution to issue the notice did not merely
exclude Mr Forbes from the two named paceways it
operated but also from those
paceways "which may now or in the future be occupied by or under the control of
the" Club. His Honour
rejected the decision of the trial judge who treated the
resolution as being supportable as an exercise of the Club's proprietary
rights
in relation to its own land and accordingly treated the resolution as valid. He
referred (at 280) to the view of Samuels JA
that although the resolution was an
exercise of the power with respect to warning-off which he treated as void, Mr
Forbes was not
entitled to declaratory relief as the Club's proprietary rights
remained unimpaired so that it could continue to exclude Mr Forbes
from the two
paceways that it owned and occupied.
- On
the other hand, his Honour noted (at 281) that Mahoney JA took the view that the
existence of the power to warn off under the Rules
operated to exclude any other
right, as those rules were inconsistent with the retention in the controlling
body of a power otherwise
to prohibit entry to the courses. Aickin J then
continued:
"It is true that the respondent club, as the owner of the land on which two
paceways are constructed, may, in the exercise of the
ordinary rights of a
landowner, refuse permission to any person who may wish to enter and may
terminate the permission granted to
any person who has entered, even pursuant to
the terms of a contract, so long as that contract does not confer upon him an
interest
in the land. The exercise of such a right or power would have the
effect of excluding the appellant from the two respondent Club's
paceways in New
South Wales."
- The
Club submitted that a new or fresh resolution, which it sought to introduce into
evidence in the court below after the hearing
had concluded and which purported
to exclude Mr Forbes from the two courses the Club owned, was sufficient to
protect Mr Forbes from
the consequences of the void resolution. In the Club's
submission, this would have the consequence that, as a matter of discretion,
a
declaration of invalidity should be refused. However, his Honour rejected these
submissions. He considered that the resolution
in purported exercise of its
proprietary rights was insufficient to provide that protection as a consequence
whereof the declaration
should be granted.
- At
this point I think it can fairly be said that neither Aickin J nor Stephen J
said anything in Forbes which was inconsistent with their reasons in
Heatley . If anything, their Honours confirmed the difference between
first, an owner or occupier of premises (including premises such as
racecourses)
who is entitled at common law to exercise their proprietary right to refuse
entry to those premises or to revoke a licence
to enter without affording either
reasons or natural justice and, secondly, a body such as the Commission in
Heatley and the Club in Forbes with statutory or quasi-statutory
powers to exclude entry to premises it neither owns nor occupies but otherwise
controls who must
afford natural justice before the power is exercised.
- This
distinction seems to have been recognised by Mr Hinkley in the present case.
Once the primary judge had rejected the statutory
licence submission, Star City
did not, at least directly, fall within the category occupied by the Commission
and the Club in Heatley and Forbes respectively. Hence Mr Hinkley
relies on the reasons of Gibbs J and Murphy J in Forbes . Accordingly, it
is necessary to analyse their Honour's judgments with some care and in some
detail.
(c) An analysis of the reasons of Gibbs J and Murphy J in Forbes
- At
264, Gibbs J noted that Mr Forbes' case rested on the foundation that the
decision to exclude him from the courses under the Club's
control was made in
contravention of the requirements of natural justice. Although it was conceded
by the Club before this Court,
and not disputed before the High Court, that it
was required to observe the rules of natural justice in exercising its powers
under
r 28, his Honour considered that concession was correctly made. He said:
"The respondent, although not granted statutory powers, was in fact the body
whose function was to control trotting in New South Wales,
and trotting is a
public activity in which quite large numbers of people take part, whether as
spectators or otherwise. Members of
the public have the legitimate expectation
that they will be given permission to go onto courses when trotting meetings are
being
held provided that they pay the stipulated charge and provided of course
that they are not drunk, disorderly or otherwise unfitted
by their condition or
behaviour to be admitted. The respondent had power to defeat this expectation by
acting under r 28, and was
accordingly required to observe the rules of natural
justice: Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39; (1977) 14 ALR
519 ; 51 ALJR 703 at 705-6, 711."
- His
Honour then noted that the question was whether the relevant resolution was a
decision taken by the Club under r 28 and whether
the letter conveying the
Club's resolution to Mr Forbes was a warning-off. If so, those acts were beyond
the power given by r 28
and were void. He then noted the submission of the Club
that the resolution was simply a decision by it to exercise its proprietary
rights with respect to the two paceways that it owned. Gibbs J rejected this
submission, holding that the resolution was clearly
an exercise by the Club of
its powers under r 28. To accept the Club's submission it would be necessary,
his Honour observed (at
267), to hold that those parts of the resolution and
letter which referred to the courses under the control of the Club were
severable
from those parts which related to the courses owned or occupied by it.
When the whole of the correspondence was read, it clearly
amounted to a
warning-off under the Rules. Accordingly, no question of severance arose.
- At
268, his Honour expressed the view that the Rules limited the exercise by the
Club of its right as landowner to exclude from its
courses any person whom it
did not choose to admit. The Rules applied to all trotting races held under the
management, control or
direction of the Club. Under them, the stewards have "the
whole control of racing" at a trotting meeting. Accordingly, his Honour
considered that the effect of the Rules was that during the currency of a race
meeting, the power of exclusion or removal from a
course lay with the stewards
and not with the Club and the stewards could exercise that power only on
specific grounds. In particular,
neither the stewards nor the inspectors or
supervisors were bound to defer to the views of the committee (of the Club) that
a person
who has not been warned off should be excluded from a course.
- His
Honour then continued in the following terms (at 269):
"It is not altogether surprising that the rules should fetter in this way the
powers of the owner of a racecourse used for trotting.
An owner who uses his
land to conduct public race meetings owes a moral duty to the public from whose
attendance he benefits; if he
invites the public to attend for such a purpose,
he should not defeat the reasonable expectation of an individual who wishes to
accept
the invitation by excluding him quite arbitrarily and capriciously. The
rules recognize the public nature of the race meeting by
placing some
restrictions on the rights of the owner of the course. Speaking broadly, the
effect of the rules is that on a day on which a race meeting is being held the
respondent cannot use its powers
by preventing, for no apparent reason, a member
of the public who is in a decent condition and behaving properly from entering
the
course. The control of the course, and the power to exclude people from it,
have been conferred temporarily on the stewards, and
if the respondent wishes to
ensure that an individual is excluded it must take action under r 28 to warn him
off, but it must observe
the requirements of natural justice in doing so. This
may be put in another way by saying, as Mahoney JA said in the Court of Appeal,
that the effect of the rules is that, in relation to relevant persons, a power
to prohibit entry of the kind which constitutes a
warning off may not be
exercised in any manner other than in accordance with the rules; the effect of
the rules is to impose restrictions
upon the manner in which the respondent may
exercise its proprietary rights." (Emphasis added)
- With
respect to the passage from the reasons of Gibbs J recorded in the preceding
paragraph, the primary judge commented as follows:
"149 In other words, on his Honour's construction of the Rules, the power to
warn off persons from the race course on a race day reposed
in the stewards and
not the committee of the Club (ie the owner of the course). Not surprisingly, in
those circumstances, his Honour
expressed the opinion that if the owner (ie, in
effect, the committee) wished to exclude a patron from the course it would need
to
take action under the Rules (and, as had been conceded by the parties, it
would then be obliged to observe the rules of natural justice).
150 However, it is relevant to note that his Honour reached that conclusion
as a matter of construction of the Rules and not by reference
to the 'public'
(or otherwise) nature of race meetings (though drawing some comfort or support
in that regard by what he perceived
to be the 'moral duty' of an owner in that
situation)."
- I
respectfully agree with her Honour's analysis of Gibbs J's reasoning that
directly addressed the issue relating to the validity
of the notice and which
depended on the proper construction of the Rules. In that respect it differs
from the obiter reasoning of
Murphy J to which I refer below.
- Both
before the primary judge and this Court, Mr Hinkley relied heavily upon that
part of the reasons of Gibbs J which I have recorded
at [75] above and which I
have emphasised. However, the restrictions on the rights of the owner of the
course to which his Honour
was there referring were the restrictions contained
in the Rules which vested in the stewards, and not the Club, control of the
course
and the power to exclude people from it, and this was so even if the
course in question was one owned by the Club. Moreover, the
last sentence of the
emphasised extract seems to recognise that it was the Rules which gave a public
element to race meetings conducted
on courses controlled by the Club which thus
restricted its common law proprietary rights with respect to courses it owned.
- Accepting
that in Forbes the effect of the Rules was to impose restrictions upon
the manner in which the Club might exercise its proprietary rights, the question
which still arises is whether the Act places any such restrictions upon Star
City's proprietary right to refuse to grant a member
of the public a licence to
enter the Casino and, if so, the nature of those restrictions. Can one find a
restriction in the Act whereby
the refusal to grant a licence or to revoke it
once granted cannot be exercised without affording the relevant person
procedural
fairness or only a restriction that requires that a licence be
refused or revoked other than arbitrarily or capriciously: that is,
for a given
reason? In my opinion, the only relevant limitation, if such it be, to be found
in the Act is s 79. I shall return to
this aspect below.
- I
would also observe that the first sentence in the above passage from the reasons
of Gibbs J which I have emphasised refers to a
"moral duty" not to
exclude an invitee "arbitrarily and capriciously". There seems to me, as
I have indicated, to be a difference between a requirement to provide procedural
fairness before excluding a
person and excluding them for cause. I turn now to
the reasons of Murphy J.
- Murphy
J relied on Heatley for the proposition that to be valid, a decision to
warn off must be made in accordance with the rules of natural justice which
required
an opportunity to be heard before the decision is made. Heatley
supports that proposition in the context of the statutory power there under
consideration. However, as will be seen, Murphy J regarded
it as a general
proposition applicable even where no power was being exercised equivalent to the
statutory power in Heatley or the Rules in Forbes .
- His
Honour (at 274) then rejected the contention of the Club that its resolution
could be treated as an exercise of an owner's rights.
Even if that were not so,
the question would remain as to whether the Club was entitled to rely on its
private rights, as owner of
the land on which the racecourse was conducted, to
arbitrarily exclude Mr Forbes. His Honour noted that the Club contended that it
was in the same position as an individual householder with a right to
arbitrarily exclude anyone it wished. In his opinion that was
not so and
although he noted that it was not necessary for the decision in the instant
case, his Honour nevertheless proceeded to
state his views on that issue.
- Murphy
J then referred to the provisions in the New South Wales legislation which
permitted the Club to conduct race meetings on its
lands and to permit tote
betting thereon. In light of those provisions, his Honour considered that the
Club exercised powers which
significantly affected members of the public who go
to watch the spectacle, to bet as a hobby and some, like Mr Forbes, who sought
to make a living by betting. Accordingly, he considered that the functions of
the Club in relation to the conduct of race meetings
on its lands was
qualitatively different from that of the ordinary householder exercising his
private property rights.
- His
Honour then continued (at 274-275) as follows:
"A householder, exercising his property rights, may do so against the public,
and ordinarily this is sensibly regarded as the exercise
of a private right and
of private power, although the right stems from a public source and is
ultimately enforceable through public
administrative and judicial authorities. A
householder exercising his property rights of exclusion is not in the same
position as
persons with licences to conduct public halls, restaurants, theatres
or racecourses. From early times, the common law has declined
to regard those
who conduct public utilities, such as inns, as entitled to exclude persons
arbitrarily (see White's case (1558) 73 ER (KB) 343). However, in
Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605, the court, in my
opinion wrongly, dealt with exclusion from a racecourse as if the case were
concerned with private rights only.
That case differs from the present case in
that there the person was removed from one meeting during its course; here the
exclusion
is from all meetings indefinitely.
When rights are so aggregated that their exercise affects members of the
public to a significant degree, they may often be described
as public rights and
their exercise as that of public power. Such public power must be exercised bona
fide, for the purposes for
which it is conferred and with due regard to the
persons affected by its exercise. This generally requires that where such power
is exercised against an individual, due process or natural justice must be
observed. There is, of course, legislative and executive
powers affecting
individuals which traditionally have been treated as not being required to
conform to natural justice. There is
a difference between public and private
power but, of course, one may shade into the other. When rights are exercised
directly by
the government or by some agency or body vested with statutory
authority, public power is obviously being exercised, but it may be
exercised in
ways which are not so obvious. In my opinion, a body, such as the respondent,
which conducts a public racecourse at which betting is permitted under statutory
authority,
to which it admits members of the public on payment of a fee, is
exercising public power. It may not arbitrarily exclude or remove
such a person
from the lands during a race meeting ." (Emphasis added)
- Murphy
J then concluded in the following terms (at 275-276):
"It seems to me that the resolution of this case does not depend on the terms
of the club's rules or by-laws. If these purport to
exclude natural justice in
the making of a decision to warn off or to permit arbitrary exclusion of a
person from the lands, then
they are to that extent invalid as being contrary to
public policy... When one departs from the purely domestic area of householder
and from contracts affecting only individuals, into the sphere where there is an
accumulation of rights the exercise of which affects
the public to a significant
degree, then increasingly, requirements of due process are imposed and arbitrary
and unreasonable conduct
is not permitted. This approach has been taken to
monopolies, contracts in restraint of trade, as well as to statutory
authorities.
It has also been taken to the conduct of trade unions and clubs in
dealing with their members. The question is where the line is
to be drawn
between public power which requires observance of due process and private power
which does not. The development of civil
rights and liberties is evolutionary
(see Earl of Birkenhead in Secretary of State for Home Affairs v O'Brien
[1923] AC 603 at 614; [1923] All ER Rep 442) (sic). The stage has been
reached where the exercise of power to exclude a person indefinitely from a
public racecourse should be
treated as public power subject to due process."
(d) The primary judge's conclusions with respect to Heatley and
Forbes
- At
[165] of her reasons, the primary judge concluded that the following
propositions emerge from a synthesis of the judgments of the
majority in
Forbes :
"(a) a non-owner or occupier of property (such as the Commission in
Heatley ) exercising a statutory power to exclude persons from a public
venue such as a racecourse (or, as here, a casino) has an obligation
to afford
natural justice (at least where its decision to exclude directly affects rights,
interests or legitimate expectations of
members of the public); (Therefore, but
for the exclusion in s 141(4), it would seem difficult to argue that the
Authority, in exercising
a power to exclude someone from the casino, would not
be so bound.)
(b) an owner (or occupier) of a public venue such as a racecourse (or
casino), not having a statutory power or some form of governmental
or
administrative control, does not have an obligation to afford natural justice
when deciding to exclude a person from that venue,
even though it may be in
breach of a contractual obligation in so doing ( Cowell, Heatley, Forbes
) (unless the position espoused, in obiter , by Murphy J in Forbes
, is correct and extends so far as to operate such that the public nature of
the venue gives rise to such an obligation even in the
absence of a relevant
statutory power because the owner can be said to be exercising a 'public power'
and/or because the exclusion
is indefinite rather than 'one-off');
(c) where an owner (or occupier) of a public venue does have, in addition to
its private rights, a statutory (or controlling) power
in respect of a public
activity carried on at that venue, then if, as a matter of construction, it
exercises that power (as opposed
to any private proprietary rights it may also
hold) to exclude a patron or member of the public from that venue, it is likely
to
have an obligation to afford natural justice (and cannot save an invalid
exercise of that power by reliance on an alternative common
law power which it
had not purported to exercise) ( Forbes ); (Thus if, in truth, what Star
City was doing when it issued the Notice was an exercise of a power under s 79
of the Act statutorily
to exclude Mr Hinkley, I would have held that it had an
obligation to afford him natural justice in so doing.)
(d) where an owner (or occupier) of a public venue has a
statutory/controlling power and does not, as a matter of construction, exercise
that power but relies instead on its private proprietary rights to exclude an
individual from entry to the venue, then the weight
of dicta favours the view
that it does not thereby have an obligation to afford natural justice (Barwick
CJ, Aickin and Stephen JJ
versus Gibbs and Murphy JJ in Forbes , with
Mahoney JA dissenting in the Court of Appeal)."
- I
interpolate to note the words in parenthesis at the end of proposition (c) above
in which her Honour considered that if Star City
had exercised its power under s
79 to make an exclusion order, it was required to afford Mr Hinkley procedural
fairness. This was
not a point which was argued before her Honour as she
acknowledged at [74] of her reasons where she said:
"As noted above, there is an express exclusion of any obligation to afford
natural justice on the part of the Authority when exercising
its functions under
the Act, which would include reviewing the issue of an exclusion order (s
141(4)). The statute makes no such
provision in relation to the casino operator.
It was not conceded by the [respondents] that there would have been any
obligation
on Star City to afford natural justice when exercising its powers
under s 79 but that point was not argued."
- In
oral argument on the appeal, Star City sought to challenge the correctness of
her Honour's assertion in the last sentence of [165(c)]
and, by consent, leave
was granted for it to file an amended notice of contention to give effect
thereto. I shall return to this
issue below at [102].
- It
was submitted by Mr Hinkley both before her Honour and reiterated on appeal,
that Star City was providing a public function (being
the conduct of the only
casino in the State) under governmental authority (being the Act). The
imposition of the duty to afford procedural
fairness was due to the nature of
the power rather than the form of the entity on which it was conferred.
Accordingly, it was the
" public " nature of the function to permit entry
to the Casino by the holder of the statutory licence to control gambling at the
Casino that
gave rise to the obligation to afford natural justice. It was
therefore submitted that in issuing the Notice, Star City was exercising
a "
public power ".
- An
alternative basis advanced by Mr Hinkley which, perhaps, was but a variation of
the submission referred to above, was that Star
City was exercising, in effect,
a public proprietary right as distinct from a personal proprietary right when it
purported to exclude
Mr Hinkley from the Casino.
- At
[173] of her reasons, the primary judge noted that reliance for the proposition
that Star City was exercising a public power when
it issued the Notice rested
largely on the dicta of Murphy J in Forbes when he contrasted in
qualitative terms the position of an individual householder and someone in the
position of the Club in that
case. Her Honour observed that the public policy
test invoked by Murphy J seemed to envisage a balancing exercise between the
rights
of the owner or occupier of a " public" venue and those of an
individual. She continued:
"In this regard, a casino is seemingly in no different position than, say, a
football stadium, nightclub, bar, theatre or shopping
centre, all being areas to
which the public or sections of the public can generally have access, whether
with or without payment
of a fee, and some aspects of which (such as the
operation of poker machines or the sale of alcohol) are subject to the holding
of
particular licences."
- The
primary judge's findings on this issue were as follows:
"174 Had the Notice (as properly construed) been issued under s 79 then there
would have been much to support the view that it was
in the exercise of a public
power, that being a power conferred by statute on the casino operator in its
capacity as casino operator
and in the exercise of a power to regulate the
exclusion of patrons at the casino (carrying with it potential criminal and
other
consequences).
175 However, to suggest that an owner (or occupier)'s common law property
rights are limited by the fact that it controls or makes
available to the public
a venue for public entertainment seems inconsistent with the recognition in
Cowell that the owner of a racecourse might terminate arbitrarily the
licence of a racegoer. Does the existence of additional powers with
which the
owner might choose to control that activity alter the position? The fact that
control of the activity, as here in the case
of gambling, derives from a
statutory power or licence (or, as in Forbes , a governmental consent)
does not seem to me sufficient of itself to override or limit the ability of the
owner or occupier to exercise
whatever common law proprietary rights it may also
have, absent an indication in the statute that it was the intention of the
legislature
so to limit their exercise.
176 The relevant question here is whether the statute operates to abrogate
any common law right arbitrarily or capriciously to refuse
to grant a licence to
enter the casino (or to act in some other way otherwise than in accordance with
procedural fairness) simply
because the entity exercising such a right (here,
Star City) controls the operation of gambling in the casino and has the benefit
and responsibility of holding a casino operator's licence to control gambling in
the casino."
- I
note that on the hearing of the appeal Mr Hinkley eschewed any submission that
the Act generally, and s 79 in particular, operated
to abrogate Star City's
common law proprietary right as the occupier of the Casino to refuse entry to a
member of the public or to
exclude that person or to revoke a licence to enter,
if granted. Rather, it was submitted that s 79 limited Star City's common
law right in that it could only be exercised in a manner which was "
consistent" with the exercise of its powers under s 79. That limitation
was confined to the alleged requirement that in making an exclusion order
under
s 79(1) Star City was (although the Authority was not) bound by the rules of
natural justice.
- Her
Honour continued:
"178 Therefore, insofar as it seemed, in argument, to be suggested that the
consequence of having the powers (or privileges) reposed
in the casino operator
is to require it to exercise those powers in accordance with the way a statutory
power would be exercised,
this does not seem to me to address the fact that, had
the legislature intended that persons be excluded from the casino only by
utilisation of the s 79 procedure, it could have made express provision to that
effect.
179 There does not seem to me to be a discernible statutory intention that
the s 79 procedure was to cover the field in prescribing
the way in which access
to the casino could be limited by the casino operator. Had the legislature
intended that to be the case then
it would have been a simple matter to do so.
180 If an owner/occupier in the position of Star City is obliged (by reason
of its statutory power of exclusion and/or its statutory
right or function to
operate and control gambling at the casino) to afford natural justice, then it
is difficult to see why a nightclub
operator, for example, holding a statutory
liquor or gambling licence (or both), would not be under a similar obligation
when refusing
entry to customers. Where then would the line between 'public' and
'private' powers be drawn?"
- Finally,
at [182], her Honour concluded that she was not persuaded that a casino was
qualitatively in a different position than, say,
a nightclub and it would be
difficult to suggest that there was an obligation to afford natural justice in a
decision whether or
not to admit entry to a venue of that kind. She was not
persuaded that public policy required the conclusion that there was an
obligation
to afford Mr Hinkley natural justice in the present context.
The submissions on the appeal
- As
noted at [89] above, Mr Hinkley contended that Star City was a private body
exercising a public function under governmental authority.
The error of the
primary judge was that she had focused, indirectly, on only two possibilities,
namely, whether the Notice was the
exercise of a statutory power or a common law
proprietary right when in fact there was a third possibility being the exercise
of
a public right independent of any statutory power. Her Honour failed to
consider the nature of the power being exercised. In other words,
although not granted statutory powers, Star City was required to observe the
rules of
natural justice because it was effectively controlling a public
activity, namely, the lawful conduct of gaming in the only casino
in New South
Wales.
- Throughout
Mr Hinkley's submissions there is the assertion that Star City was controlling a
public activity. There is no doubt that
it was conducting an activity, namely,
legalised gambling, in which the public were impliedly invited to take part. But
when it came
to the control of that activity, in my opinion it is the Authority
and the inspectors (as defined) that control the activity and
not Star City.
Certainly, as the definition of " operations" in relation to a casino in
s 3(1) of the Act makes clear, the casino operator conducts gaming at the casino
and manages and supervises
the conduct thereof but the real control of Star
City's activities is vested in the Authority and its inspectors: see the
Authority Act , ss 18 and 32. As I noted at [14] above, the Act is
replete with prescriptive obligations imposed upon the casino operator, the
breach
of which make it liable to disciplinary consequences or prosecution and,
the imposition of a penalty.
- When
Mr Hinkley's written submissions are read in conjunction with his oral
submissions on the appeal, it would appear that he bases
his argument on the
proposition that his exclusion from participating in gambling in the only legal
casino in the State was, by its
nature, a decision of a public character. It was
accordingly an exercise of a public function and, as Murphy J held in Forbes,
attracted the rules of natural justice. It was submitted that the decision
to exclude Mr Hinkley from participating in the gambling
activities of the
casino was, therefore, not the exercise of a proprietary right to exclude a
person from private property but was
the exercise of a public power to exclude
him from participating in the lawful gambling activities which Star City was
authorised
to conduct. Accordingly, the central question in the appeal involved
an examination of the nature of the right that was exercised by Star
City. If it was a right to exclude Mr Hinkley from gambling at the Casino, then
it was the
exercise of a public power or function.
- An
alternative argument advanced by Mr Hinkley was based upon the dissenting
judgment of Mahoney JA in Forbes. His Honour held that the existence of
the power of the Club to warn-off under the Rules operated to exclude any other
right as the
relevant Rules were inconsistent with the retention in the Club as
the controlling body of the power to prohibit entry to the relevant
racecourses.
It was submitted that what his Honour was saying was that where a controlling
body of a public activity has two powers
to exclude a person from that activity,
namely, a common law proprietary power on the one hand and a quasi statutory
power (such
as under the Rules) on the other, then the former power could not be
exercised in a manner inconsistent with the exercise of the
latter power. It was
submitted that Mahoney JA's analysis was adopted by Gibbs J in the passage from
the latter's reasons which I
have recorded at [75] above.
- Mr
Hinkley advanced an alternative contention based both on the moral duty to which
Gibbs J referred in Forbes and also to the statement by his Honour
recorded at [72] above that members of the public have a legitimate expectation
that they
will be given permission to enter public racecourses which cannot be
defeated except, so it was contended, by affording those persons
procedural
fairness. However, whether procedural fairness must be afforded in such
circumstances depends on the particular nature
of the power being exercised for
the purpose of denying that expectation. In Forbes it was r 28. In
Heatley it was s 39 of the legislation there under consideration. In the
present case, it is the exercise of a common law proprietary right.
In my view,
there is a difference between the exercise of the last-mentioned right and the
exercise of the warning-off powers the
subject of the decisions in Heatley
and Forbes .
- Finally,
Mr Hinkley submitted it was not open to Star City to circumvent the limitations
imposed upon its power to make an exclusion
order pursuant to s 79(1) of the Act
by purporting to exercise its common law proprietary rights to revoke the
implied licence which,
it was accepted, had been extended to Mr Hinkley by Star
City. It was contended that the reasons of Gibbs J (recorded at [75] above)
supported the proposition that the statutory power to exclude a person from the
Casino vested in Star City as the casino operator
by s 79(1) and was required to
be exercised by affording a person against whom it was directed procedural
fairness. Accordingly,
it was submitted that it was not open to Star City to
circumvent that obligation by exercising its proprietary rights without
reference
to the limitation on its power under s 79.
Mr Hinkley's submissions should be rejected
(a) Legitimate expectation
- For
the purpose of dealing with Mr Hinkley's submissions I shall assume, without
deciding that, as the casino operator, Star City
was required to afford
procedural fairness to a person in respect of whom it proposes to make an
exclusion order pursuant to s 79(1)
(although I would note that I do not accept
that proposition as self-evident). Mr Hinkley's submission, therefore, requires
a finding
that Star City: first, has the power to make an exclusion order
pursuant to s 79 only if it affords the person in respect of whom
it proposes to
make the order procedural fairness and, secondly, cannot exercise its common law
proprietary right to exclude that
person from the Casino without first affording
that person procedural fairness. In my respectful opinion, there is no basis for
construing
s 79 as in some way imposing a limitation by way of a requirement to
afford procedural fairness on the exercise by Star City of its
admitted right to
refuse entry to Mr Hinkley to the Casino and to inform him that any implied
licence he might otherwise have had
to enter those premises had been withdrawn.
- One
of the difficulties facing Mr Hinkley and his reliance upon the legitimate
expectation argument extracted from the reasons of
Gibbs J in Forbes, is
that it ignores the provisions of s 77(1) of the Act which, for convenience, I
repeat:
"A person enters and remains in a casino only by licence of the casino
operator, except as provided by this section and section 78." (Emphasis added)
- The
use of the word " only " in s 77(1) makes it clear that a member of the
public has no right or entitlement to enter and remain in the casino unless and
until
he is licensed to do so by the casino operator. In my view, the section
itself negatives any legitimate expectation which a member
of the public might
otherwise have had to enter the Casino and remain there. The section does not
oblige the casino operator to grant
a licence but leaves it to the discretion of
the operator as the owner or occupier of the Casino. The only persons who have
the right
to enter and remain in the Casino is the inspector referred to in s
77(2) and a police officer pursuant to the powers of entry referred
to in s
78(2). Neither of those persons require a licence to enter a casino from the
casino operator. Everyone else does. And it
is only if they obtain such a
licence that they may enter and remain in the Casino. A similar approach has
been taken in New Zealand
with respect to its casino legislation: see below.
- Furthermore,
the terms of entry, of which Mr Hinkley was apparently aware, make it clear that
Star City asserted that it had the right
to refuse entry to any person and the
right to withdraw any person's admission to remain in the Casino without reason.
(b) The consequences of the exercise of the right
- Another
difficulty which Mr Hinkley's submissions do not attempt to overcome involves
the quite significantly different consequences
between the exercise by the
casino operator of its common law proprietary right to refuse entry to the
Casino on the one hand and
its making of an exclusion order pursuant to s 79(1)
on the other. With respect to the former, a person who has been refused entry
but who enters nonetheless is merely committing a trespass. This gives rise to a
civil remedy, although the damages may well be nominal
in a case such as the
present.
- It
is possible that such a person might be prosecuted pursuant to s 4(1) of
Inclosed Lands Protection Act 1901 (NSW) which provides that a person
who, without lawful excuse, enters into inclosed lands without the consent of
the owner or occupier
and who remains on those lands after being requested by
the owner or occupier to leave those lands, is liable to a penalty not
exceeding,
relevantly, five penalty units (or $550). In this respect, it is
probable that the casino complex constitutes inclosed lands: see
Director of
Public Prosecutions (NSW) v Strang [2011] NSWSC 259 where Johnson J held
that a Best and Less store within a large multistorey shopping complex was
capable of falling within the statutory
definition of "inclosed lands" .
On the other hand, a person the subject of an exclusion order who enters or
remains in a casino to which the order relates is subject
to a maximum penalty
equivalent to $5500 or imprisonment for 12 months or both: see s 84(1) of the
Act. Furthermore, such a person
may well be excluded from other casinos in
Australia as a consequence of the provisions of ss 81 and 81A of the Act. No
such consequences
attend the exercise by Star City of its common law proprietary
right to exclude persons from the Casino.
- In
the foregoing circumstances it seems to me, as was suggested during the course
of argument, that s 79 is a freestanding statutory
power which operates
independently of the casino operator's common law proprietary rights with
respect to the casino in respect of
which it holds a casino licence.
(c) Adoption of Gibbs J's analysis of Mahoney JA in Forbes
- I
now turn to the appellant's submission respecting the adoption of Gibbs J's
analysis of Mahoney JA's reasons in Forbes. Mr Hinkley submitted that the
effect of what Mahoney JA said in the Court of Appeal and Gibbs J's endorsement
of his Honour's approach
was that Star City's common law proprietary right to
refuse to grant Mr Hinkley a licence to enter the Casino would not be exercised
other than in accordance with the restrictions which applied to the exercise of
an exclusion order under s 79(1). With respect, that
is not how I perceive Gibbs
J to have understood what Mahoney JA said in the Court of Appeal.
- It
is true that in Forbes, Aickin J said that Mahoney JA (in dissent in this
Court) had taken the view that the existence of the power to warn off under the
Rules operated to exclude any other right, as such r 28 was inconsistent with
the retention by the controlling body (the Club) of
the power to otherwise
prohibit entry to its courses. However, of the four majority justices in
Forbes , only Gibbs J purported to adopt what Mahoney JA had said in this
Court and then described his Honour's finding in somewhat different
terms to how
it had been expressed in his reasons in the Court of Appeal.
- With
respect, I regard Mahoney JA as holding that the effect of r 28 of the Rules was
that, in relation to relevant persons, a power
to prohibit entry of the kind
which constituted a warning-off could not be exercised in any manner other than
in accordance with
that rule; the effect of the rule was to impose restrictions
upon the manner in which the Club might otherwise exercise its proprietary
rights. As I understand his Honour's approach, it was based on an abrogation of
the common law power as being inconsistent with the
power to "warn off" under
the Rules. However in oral argument Mr Hinkley did not contend that the power to
make an exclusion order
under s 79 abrogated the common law right of the casino
operator to refuse entry of persons to the Casino or to revoke their licence
to
remain on the premises. His submission was simply that before that right was
exercised, Mr Hinkley was entitled to be afforded
procedural fairness.
- In
this respect Mr Hinkley's oral submissions on the appeal revealed some
inconsistency. At Appeal Transcript 18, senior counsel for
Mr Hinkley was asked
whether he was asserting that the proprietary right to exclude could be
exercised only in accordance with the
statutory right to exclude. His response
was that the proprietary right to exclude permanently could not be exercised in
a manner
so as to circumvent the implied requirement of the Act (presumably s
79) and natural justice has to be applied to such a decision,
a proposition
which, he accepted, he garnered from Mahoney JA's judgment in Forbes. On
the other hand, senior counsel expressly eschewed any submission to the effect
that any proprietary right which might otherwise
have been exercised to exclude
a person from entering the Casino could no longer be exercised given the power
to exclude under s
79(1).
- However,
part the confusion that occurred during the course of argument was that Mr
Hinkley submitted that the obligation to afford
procedural fairness only applied
where a common law proprietary right to refuse entry to the Casino was exercised
on an indefinite
or permanent basis as distinct from an "on the spot" basis. In
this respect the primary judge found, and it was not challenged, that
an
ordinary member of the public approaching the Casino on a day in which it was in
operation had an implied licence to approach
its entrance and seek to be
admitted. If that person was admitted, then he or she was licensed to enter and
remain within the Casino
until that licence was revoked. It is difficult to see
how this right, which is exercised on a day to day basis, could either be
abrogated by the more draconian power contained in s 79(1) or be subject to an
obligation to afford procedural fairness each time
before a person was refused
entry.
(d) Should Murphy J's approach in Forbes be adopted?
- In
any event, and with respect, I would not be prepared to apply the approach of
Murphy J in Forbes which appears to be based upon his Honour's perception
of public policy which, in a case such as the present, would ignore the express
provisions of the Act. It may well be that the obiter remarks of his
Honour can be confined, and in fact should be confined, to the exercise of a
power to exclude a person indefinitely
from a public racecourse. However, to the
extent to which it is sought by analogy to apply his Honour's approach to a
casino, in
my view that approach is far too widely stated and, subject to the
position in New Zealand, is yet to be authoritatively adopted
in any other
jurisdiction. As Murphy J's dictum, accepting that it was " seriously
considered ", did not command a majority of the High Court, this Court is
not bound to apply it: Farah Constructions v Say-Dee Pty Limited [2007]
HCA 22; (2007) 230 CLR 89 at [134]; Franklins Pty Ltd v Metcash Trading Ltd
[2009] NSWCA 407; (2009) 76 NSWLR 603 at [311] per Campbell JA.
- Of
course, one of the difficulties is determining what his Honour meant by the
exercise of a " public power ". Mr Hinkley submitted that it was the
right or privilege of Star City to operate the only casino in the State. On the
following
page of the Appeal Transcript, he submitted that the power of Star
City, as casino operator, to make a decision in respect of whether
to include or
exclude persons from an activity that would otherwise be illegal constituted a
public power. However, such a definition
or explanation of the phrase "
public power " does not accord with the final sentence of Murphy J's
reasons in Forbes (see [85] above) where he said that it was the exercise
of the power to exclude a person indefinitely from a public racecourse which
should be treated as a public power subject to due process. It is important to
note that his Honour did not seek to limit the approach
that he adopted to
trotting or horseracing activities or to an activity such as the casino in the
present case, of which there is
only one in the State. His approach was much
more broadly stated than that.
- Furthermore,
his Honour's approach only applied where " rights are so aggregated that
their exercise affects members of the public to a significant degree ". Such
rights are said to be properly described as public rights and their exercise
that of a public power. However, in the present
case the Court was not favoured
with submissions as to which rights or powers of Star City were so aggregated
because their exercise
would affect members of the public to a significant
degree. This may be due to the fact that there was no aggregation of rights or
powers vested by the Act in Star City. Apart from its power to make an exclusion
order under s 79(1), it only had one common law
power, namely, to grant or
refuse a licence to enter the Casino or to revoke such a licence.
- Murphy
J's reasoning in Forbes has not been referred to in any other case which
I have been able to find. Forbes itself was referred to by Spigelman CJ
in Minister for Local Government v South Sydney City Council [2002] NSWCA
288; (2002) 55 NSWLR 381 at [7] where he said:
"In my opinion, the common law basis for the duty to accord procedural
fairness is reflected in the cases which extend the duty to
the exercise of
prerogative powers...It is also the basis for the extension of the principles of
judicial review to private bodies
which make decisions of a public character.
(See e.g. Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242;
R v Panel on Take-overs and Mergers; Ex parte Datafin [1986] EWCA Civ 8; [1987] QB 815.)"
- However,
the reference by the Chief Justice to Forbes in the passage recorded
above does not constitute an adoption by his Honour of the approach of Murphy J
in that case. Rather, it adopts
the view of the majority in Forbes that
judicial review applied to a decision of the Club in respect of which it was
found, on conventional grounds, that there was a
requirement to afford
procedural fairness which had been breached. Nevertheless, there is some
judicial support for Murphy J's view
to which I now turn.
(e) The doctrine of prime necessity
- An
attempt was made independently of, and without reference to, Murphy J's dictum
in Forbes , to apply a similar, but not necessarily identical, approach
to the exclusion of a member of the public from the Auckland casino
of Sky City
Auckland Limited (SCA) in Sky City Auckland Ltd v Wu [2002] 3 NZLR 621.
- The
facts, taken from the headnote, were as follows. SCA served a trespass notice on
Mr Wu forbidding him from entering any part of
the Sky City casino in Auckland
for a period of two years. Mr Wu complained that SCA had acted unreasonably in
banning him. He contended
that he was banned because he was a successful gambler
and that he had raised with SCA an issue about discrepancies in pay-outs from
slot machines in the casino. SCA alleged that Mr Wu was ejected after
threatening a staff member and argued that in any event, under
the general law
and under s 67 of the Casino Control Act 1990 (NZ) (the NZ Act), it was
entitled to exclude people without giving any reasons.
- In
the High Court Mr Wu obtained from Chambers J an interlocutory injunction
restraining SCA from enforcing the trespass notice. His
Honour concluded that
SCA owed " a special duty to the public ". He said that when property
owners open their premises to the general public in pursuit of their own
property interests, they must
not exclude people unreasonably. They have a duty
not to act in an arbitrary or discriminatory manner towards people who come onto
their premises. This was but a development of the old law of common callings.
- SCA
appealed to the New Zealand Court of Appeal. In delivering the judgment of
himself and Anderson J, Blanchard J regarded the case
as turning on the
interpretation of s 67(1) of the NZ Act. It provided as follows:
" 67. Entry to and exclusion of entry from casino - (1) The fact that
a casino is licensed under this Act shall not entitle any person to enter or to
remain on the casino premises as
against the holder of the casino premises
licence or the casino operator's licence; and, subject to any right conferred by
or under
any other Act, every person shall leave the casino premises when
required to do so by or on behalf of the holder of the licence."
- It
was submitted on behalf of Mr Wu that at common law the right of a property
owner or occupier to require persons to leave the property
or to refuse them
entry has been qualified where the owner or occupier is using the property to
conduct a business affected by the
public interest. A casino operator, by virtue
of a licence from the state, is in the position of having a " virtual
monopoly " and, therefore, has such a business. Because of the status of the
business the casino operator cannot exclude a member of the public
from access
to it without good reason.
- At
[17] Blanchard J recorded Mr Wu's submission that the New Zealand Court of
Appeal in Vector Ltd v Transpower New Zealand Ltd [1999] 3 NZLR 646 had
traced the common law doctrine of prime necessity back to a treatise of Sir
Matthew Hale written in 1670 but not published until
1787 and had accepted that,
where a relevant monopoly exists, property becomes affected by the public
interest and subjected to the
asserted common law obligations. The modern form
of the doctrine, it was submitted, had developed by analogy and resembled the
American
law relating to public utilities. The concern was with the abuse of
monopoly power. It was contended that the point had been reached
in New Zealand
where the various doctrines had merged into one which had several aspects,
namely, businesses affected with a public
interest are bound to supply goods and
services to the public equally, without discrimination and unreasonable
exclusion, and at
a reasonable price.
- At
[22] of his reasons, Blanchard J observed:
"The idea that a business invested with "the monopoly of a public privilege"
must, in the absence of good reason in a particular case
or situation, such as a
lack of capacity to provide goods or services, make its facilities available to
all, and at a reasonable
price, is soundly based both in New Zealand law and in
economic good sense."
- His
Honour then noted that the Court of Appeal in Vector had referred to
Allnutt v Inglis [1810] EngR 359; (1810) 12 East 527; 104 ER 206 where the London Dock
Company had a monopoly bond store facility (for the deposit of wine pending the
payment of duties) but had
refused to store the plaintiff's wine because they
would not pay the company's notified charges. It was held that there was such
a
monopoly and public interest attaching to the company's bond store that it was
bound by law to receive the plaintiff's wine into
its warehouses for a
reasonable hire and reward. Lord Ellenborough CJ, in the leading judgment, while
recognising a general principle
that "every man may fix what price he pleases
upon his own property or the use of it", said (at 538) that:
"if, for a particular purpose, the public have a right to resort to his
premises and make use of them, and he have a monopoly in them
for that purpose,
if he will take the benefit of that monopoly, he must as an equivalent perform
the duty attached to it on reasonable
terms"
- The
Chief Justice continued that the company's warehouses had been:
"invested with the monopoly of a public privilege, and therefore they must by
law confine themselves to take reasonable rates for
the use of them for that
purpose".
- At
[24] Blanchard J observed:
"[24] The same principle, deriving from Hale, was accepted by the Supreme
Court of the United States to be part of the common law
in that country in
Munn v Illinois [1876] USSC 149; 94 US 113 (1876). Waite CJ, delivering the opinion of the
Court, said at p 126:
"Property does become clothed with a public interest when used in a manner to
make it of public consequence, and affect the community
at large. When,
therefore, one devotes his property to a use in which the public has an
interest, he, in effect, grants to the public
an interest in that use, and must
submit to be controlled by the public for the common good, to the extent of the
interest he has
thus created. He may withdraw his grant by discontinuing the
use; but, so long as he maintains the use he must submit to the control."
A subsequent reference to Hale makes it clear that the Court was
contemplating a situation in which the person concerned had an effective
monopoly.
[25] Vector confirms the reception of the principle into New Zealand
law and refers to a considerable body of authority in this country. The label
given to it in that case - the doctrine of prime necessity - is a term
appropriate to cases which concern the supply of electricity
or water by a
utility company but we think that Mr Taggart is correct in his submission that
that doctrine is a strand of the broader
principle which, as Vector
recognised, is adaptable to meet new legal and social situations.
[26] This Court viewed the doctrine of prime necessity as a "backstop common
law remedy", to be applied in the absence of other remedies
and where there are
no statutory contra-indications to its use, such as were found in that case in
the Commerce Act 1986, reinforced by the State-Owned Enterprises Act
1986. As Thomas J said in his concurring judgment in Vector at para
[77], without such a remedy the law would be deficient. Thomas J spoke of the
law's objective of curbing the exploitation
of monopoly power in the supply of
essential services (para [80])."
- After
noting (at [27]) that in the United States it was not yet settled whether, and
to what extent, licensed gambling facilities
were properly to be regarded as
businesses affected by the public interest, his Honour then discussed a number
of American authorities
relating to racecourses and concluded:
"[34] Although we do not find it necessary to express a concluded view ...
based in part on the foregoing authorities, that the common
law of New Zealand
will now recognise a casino or other licensed gambling facility as a business
affected by the public interest
in circumstances where the operator enjoys a
monopoly; and that in such a case, subject to any statutory provision to the
contrary,
the operator's right to exclude members of the public may be qualified
by an obligation to do so only for an articulated good reason.
[35] We do not, however, express a firm conclusion on this point because,
even if that is assumed to be the law and the Sky City casino
is further assumed
to be operating in monopoly conditions, in our view s 67 expresses a legislative
contra-indication, namely that
the fact that the casino is licensed does not
make it necessary for the licence holder to have a good reason for excluding
someone
from the premises."
- His
Honour then set out s 67 of the NZ Act, and observed:
"[37] It can be seen that it is directed to the effect of the licensing of
the casino under the Act. That fact is not to entitle any
person to enter or
remain on the premises and, subject to any right conferred by or under any other
Act - such as the Human Rights Act - every person is to leave the casino
premises when required to do so by or on behalf of a holder of the licence. ...
It seems to
us that the very purpose of the section is to negate the doctrine
upon which the respondent is relying - to negate any suggestion
that because the
casino is licensed, and in its particular situation therefore may operate as a
monopoly created by the licence,
patrons must not be excluded without good
reason. ...
...
[39] We have therefore concluded that the purpose of s 67 is to make it clear
that the holders of licences pertaining to casinos under
the Act are entitled to
exclude members of the public without assigning a reason so long as they do not
commit any breach of the
Human Rights Act or other relevant legislation,
..."
- McGrath
J delivered a separate judgment agreeing with Blanchard and Anderson JJ with
respect to the effect of s 67. After referring
to the structure of the NZ Act
his Honour stated (at [44]) that its
"overall effect is that licence holders, while precluded from charging for
entry or the right to play any game, are otherwise free
to choose which members
of the public they will admit to or exclude from the casino premises in the
exercise of their private rights
of ownership of the business and their
ownership or occupation of the premises."
- His
Honour concluded his analysis of s 67 in the following terms
"[45] Such a meaning of s 67 is consistent with the statutory scheme whereby
the holder of, in particular, the casino operator's licence
is responsible for
the proper operation of the casino. This responsibility is reflected, first, in
the mandatory considerations addressed
by the Casino Control Authority at the
time casino licences are granted, under Part II of the Act and, secondly, in the
provisions
for "Supervision and Disciplining" of licensees under Part VII of the
Act. In this wider statutory context s 67 can be seen as a
provision with the
purpose of facilitating the orderly conduct of casino businesses. The ability to
control who may enter and remain
on the premises is to be seen as an important
part of the means by which Parliament envisaged licensees would discharge their
responsibility
for ensuring the proper conduct of the casino in terms of the
statutory requirements. The nature of a casino business is clearly
regarded by
the legislature as requiring the giving of that unusual degree of operator
control over public access to the licensed
facility."
- McGrath
J then turned to consider the scope of the underlying common law principle of
prime necessity which was central to Mr Wu's
argument in that case and, in
effect, to Mr Hinkley's submissions in the present case. Like the other two
members of the Court, he
did not wish to express a concluded view on the issue
but nevertheless, given what had been said by those judges, considered it
appropriate
to express his own tentative views on the scope of prime necessity
in New Zealand.
- After
referring to Vector and some earlier New Zealand cases in which the term
" prime necessity " was considered in relation to utilities supplying
water for domestic and sanitary purposes, his Honour noted (at [51]) that the
element of a necessary service or commodity appeared constant in those cases
including Vector . Thus reference was made to one case involving the
collection of refuse at post offices as being a matter of necessity in the
interests
of public health and to another involving a water supply authority
where it was held that the supply of water was a matter of prime
necessity.
- His
Honour also made reference to Wairoa Electric-power Board v Wairoa Borough
[1937] NZLR 211, a case involving an electricity supply utility, where
Ostler J stated the principle as being that a statutory body having " a
practical monopoly of the supply of a commodity of prime necessity ... is under
a legal liability to supply that commodity at a
reasonable price ... "
- McGrath
J concluded his consideration of the authorities and Mr Wu's submissions in the
following terms:
"[53] The effect of the submission to which the majority is attracted, would
be to remove from the principle the requirement of the
element of "public
necessity". Only by doing that will there be a basis for applying it to restrain
the operators of casinos, or
other licensed gambling facilities, from excluding
people from their premises without giving good reason. Given the rather
anachronistic
nature of the doctrine and its limited relevance in the modern
political economy as Vector Ltd demonstrates, it would be strange for the
Courts to attempt to broaden the scope of its traditional application in New
Zealand."
- A
year later a five member bench of the Court of Appeal was asked to reconsider
Wu in Jones v Sky City Auckland Ltd [2004] 1 NZLR 192. In that
case Mr Jones, a successful patron of the casino, had been served with a notice
forbidding him from entering the premises
without assigning a reason therefor.
The bench included Blanchard and Anderson JJ but not McGrath J. In an unanimous
judgment delivered
by Keith J, the Court confirmed its decision in Wu
with respect to the effect of s 67(1) of the NZ Act. In so concluding, the
Court considered (at [25]) that s 67 left no possible room
for an argument that
the casino had the character of a prime necessity, a common calling or a
business affected with the public interest
which would qualify the common law
powers of the owner or occupier. Their Honours (at [27]) declined to express a
view as to whether
a casino could be so characterised.
- In
my opinion there is no relevant difference in substance or effect between s
77(1) of the Act and s 67(1) of the NZ Act. True, the
latter is more detailed in
its terms but for the reasons I have articulated at [104] above, I do not regard
that factor as creating
a different outcome. Accordingly, even if the so-called
doctrine of prime necessity was otherwise applicable, its effect is abrogated
by
s 77(1) of the Act.
- That
is not to say that there are no limitations on Sky City's common law power to
refuse entry of a member of the public to the Casino.
It would, for instance, be
acting unlawfully if it denied entry in breach of the provisions of the
Anti-Discrimination Act 1977 (NSW): see paragraph (f) in the definition
of " services " in s 4(1) of that Act which would bring a casino within
that legislation's reach.
- Finally,
I would express the view that a casino, whether or not having a monopoly status,
cannot be fairly categorised as having an
element of " public or prime
necessity " when compared to those essential commodities or services that
have been held to so qualify such as water and electricity supply
and sewerage
and garbage collection services. I therefore prefer the reasoning on this issue
of McGrath J to that of Blanchard and
Anderson JJ. In particular, I do not, with
respect, adopt the broad proposition of their Honours articulated at [22] of
their reasons
and which I have recorded at [125] above.
- There
are two further observations which I would make with respect to this issue. The
first is that the application of the proposition
accepted by the majority in
Wu to the Casino would be antipathetic to the objects of the Act set out
in s 4A(1): see [10] above. It would also be inconsistent with
the
considerations referred to at [14] and [97] above.
- The
second is that the prime necessity doctrine or its wider application to a
business invested with " the monopoly of a public privilege " or a
business " affected by the public interest " appears only to require, at
its highest, the provision of that business's goods and services at a reasonable
price and that those
goods and services not be denied to members of the public "
without good reason ". Neither the New Zealand cases nor the English and
United States authorities to which they refer suggest that any such denial and
exclusion attracts the rules of natural justice or, as Murphy J described it in
Forbes , " due process ".
- Mr
Hinkley's complaint was that his implied license to enter and remain in the
Casino had been withdrawn without him first being afforded
procedural fairness.
The expanded New Zealand doctrine of prime necessity does not appear to assist
him in that respect. Be that
as it may, I do not consider that that doctrine is
as yet part of Australian common law and, even if it is, it has no application
to a casino or a casino operator regulated by the Act.
(e) Conclusion
- For
the foregoing reasons, in my opinion Mr Hinkley's submissions to the effect that
it was not open to Star City to issue him with
the Notice without first
affording him procedural fairness should be rejected. Given the terms of the Act
and, in particular, s 77(1),
the present case is governed by the principle
adumbrated by Aickin J in Heatley at 506 (recorded at [52] above).
Miscellaneous matters
- One
of the issues that arose before the primary judge and to a limited extent on the
appeal, was whether the decision of Star City
to issue the Notice was subject to
judicial review. Reliance was placed on a decision of the English Court of
Appeal in R v Panel on Take-overs and Mergers; Ex parte Datafin PLC
[1986] EWCA Civ 8; [1987] QB 815. In that case the Panel on Take-overs and Mergers was an
industry body which lacked legal recognition. Its determinations were, however,
of undoubted commercial and public significance in the operation of the London
Stock Exchange and the enforcement of the non-statutory
City Code on Takeovers
and Mergers. The Court of Appeal held at [74] that although a private body, it
was amenable to judicial review
because it was exercising " regulatory
functions of government" .
- Whether
or not Datafin applies in New South Wales was the subject of extensive
analysis by Basten JA, with whom Spigelman CJ agreed, in Chase Oyster Bar Pty
Limited v Hamo Industries Pty Limited [2010] NSWCA 190; (2010) 272 ALR 750
at [74]- [81]. It has been held to apply in Victoria: Ceca Institute Pty
Limited v Australian Council for Private Education and Training [2010] VSC
552; (2010) 245 FLR 86 per Kyrou J. It is unnecessary on the facts of the
present case to revisit the issue as to whether Datafin applies in New
South Wales if only for the reason that the factual context in Datafin is
entirely different to that in the present case. In particular, Star City was not
exercising " regulatory functions of government " . To the extent
to which any regulatory functions were being exercised with respect to the
Casino, they were being exercised by the
Authority and not by Star City as the
casino operator. Accordingly, in my view Datafin and the authorities that
have referred to it have no application to the present case.
- I
should add, as Basten JA observed in Chase Oyster at [79], that the duty
to accord procedural fairness is not co-extensive with the availability of the
prerogative writs such as certiorari
for breach of that duty. Breach of
procedural fairness, his Honour noted, was a form of jurisdictional error in
respect of which
declaratory relief could be obtained rather than judicial
review. In fact, the summons in the present case does not seek judicial
review
but a declaration of invalidity with respect to the Notice on the ground that
there was a failure to accord procedural fairness.
- The
second matter that does not require consideration arises out of alleged errors
of the primary judge which are the subject of the
respondents' amended notice of
contention. In view of my opinion that her Honour was correct in finding that
Star City was not obliged
to accord procedural fairness to Mr Hinkley before it
issued him with the Notice, it is unnecessary to consider whether Casino
Properties
was entitled to exclude Mr Hinkley from the non-casino premises.
- Finally,
it is also unnecessary to determine whether Star City, as the casino operator,
was required to afford procedural fairness
in the making of an exclusion order
pursuant to s 79(1) of the Act. This issue, as I indicated at [87] above, was
not argued before
the primary judge but it was raised during the course of oral
argument on the appeal given the reliance by Mr Hinkley on s 79 as
restricting
Star City's common law proprietary right to refuse to grant Mr Hinkley a licence
to enter the Casino. This limitation
or restriction was assumed to be a
requirement to afford procedural fairness when Star City as the casino operator
proposed to make
an exclusion order pursuant to s 79(1). If that was not the
case, then the foundation of Mr Hinkley's argument falls away.
- Accordingly,
Star City made submissions during the course of the appeal to the effect that as
a matter of construction of the Act,
the common law duty to afford procedural
fairness where it proposed to make an exclusion order pursuant to s 79(1), had
been excluded
by necessary implication. It was submitted that the application of
procedural fairness to the exercise by the casino operator of
its power to
exclude under s 79(1) would be inconsistent with the operation of the relevant
statutory provisions and, in particular,
would be contrary to the objectives of
the Act set out in s 4A(1) to which Star City was required by s 4A(2) to have
regard when
exercising its powers under s 79(1).
- As
this was a new matter raised during the course of the argument, Mr Hinkley
sought leave to provide supplementary submissions with
respect to the issue.
Those submissions did no more than refer to passages from three decisions of the
High Court and one of the
Federal Court together with a reference to Aronson,
Dyer and Groves Judicial Review of Administrative Action , 4 th ed.
Lawbook Co. 2009.
- One
of the difficulties in acceding to Star City's submissions with respect to s 79
is that s 141(4) expressly provides that in the
exercise of its functions under
the Act the Authority is not required to observe the rules of natural justice
except to the extent
that it is specifically required to do so by the Act. There
is no equivalent provision applying to the casino operator. Therefore,
so the
argument runs, the legislature did not intend to exclude the rules of natural
justice from the exercise by the casino operator
of its power to make an
exclusion order pursuant to s 79(1).
- In
my view, the issue so raised is one of some difficulty and the answer is not
entirely clear-cut. Although in oral submissions Star
City took the Court to
various provisions of the Act which, so it submitted, by necessary implication
excluded the common law duty
to afford procedural fairness in the exercise by
the casino operator of its power to make an exclusion order pursuant to s 79(1),
we were not taken to any of the relevant authorities. My own reading of the text
of Aronson, Dyer and Groves at 477-503 illustrates
the difficulties to which I
have referred.
- However,
I do note that s 79(1) is the only provision of the Act which vests a power in
the casino operator which is capable of attracting
a requirement to afford
procedural fairness. On the other hand, there are a plethora of functions (as
defined in s 4(2)) vested in
the Authority which, but for s 141(4), would
attract that requirement. I can see no logical reason to exclude the Authority
but not
the casino operator from that obligation. Although there is a right of
review to the Authority pursuant to s 80 with respect to an
exclusion order made
by the casino operator, the Authority is not required to provide the applicant
with procedural fairness in conducting
that review. According to Aronson et al,
ibid at [7.300]-[7.305], this militates against the proposition that that right
of review
excludes by necessary implication the requirement to afford procedural
fairness when the casino operator exercises its s 79(1) power.
On the other
hand, to require the application of procedural fairness to the exercise of such
power, given the objects of the Act
set forth in s 4A(1), may well be
inconsistent with the operation of s 79 in achieving those objects: Aronson et
al, ibid at [7.240].
My tentative view is that that is the case.
- In
the absence of full argument on this important question, it would be
inappropriate to express any final view thereon, and I do
not do so. However, it
is a matter to which the legislature's attention should be directed in order
that the issue be put beyond
doubt. However, since writing this judgment I have
had the benefit of reading in draft the reasons of Giles JA which deal directly
with this issue. I acknowledge the force of his Honour's conclusion and his
cogent reasons in support of it which accord with my
own tentative view on the
issue.
The result
- The
primary judge held that in issuing the Notice, Star City was not bound to afford
Mr Hinkley procedural fairness. In my view, her
Honour's decision was correct.
The submissions of Mr Hinkley, founded as they are upon dicta of Gibbs J and
Murphy J in Forbes , should be rejected.
- I
would therefore propose the following orders:
(1) Leave to
appeal granted.
(2) Appeal dismissed with costs.
**********
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