BARTHOLOMEUSZ AND ACT GAMBLING & RACING COMMISSION
[2007] ACTAAT 17
•13 August 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:BARTHOLOMEUSZ AND ACT GAMBLING & RACING COMMISSION [2007] ACTAAT 17 (13 AUGUST 2007)
AT06/79
Catchwords: Casino employee licence – appeal against decision to suspend for 4 weeks – allowing excluded person to enter casino – defence of no reasonable grounds to believe person was excluded – criteria relevant to disciplinary action.
Administrative Appeals Tribunal Act 1989, s 37
Casino Control Act 2006, ss 56, 57, 58, 59, 85, 137
First Home Owner Grant Act 2000, s 47
Calcaro v Commissioner for State Revenue [2004] NSWADT 158
Taskovski and Commissioner for ACT Revenue [2007] ACTAAT 11 (25 May 2007)
Principled Regulation: Federal and Civil Administrative Penalties in Australia (2002) ALRC 95
Tribunal:Mr M H Peedom, President
Date:13 August 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/79
GENERAL DIVISION )
RE: MELVIN
BARTHOLOMEUSZ
Applicant
AND: ACT GAMBLING AND
RACING COMMISSION
Respondent
ORDER PURSUANT TO SECTION 180(2) OF THE LEGISLATION ACT 2001
Tribunal : Mr M H Peedom, President
Date : 14 August 2007
Order :
Pursuant to section 180(2) of the Legislation Act 2001, the Tribunal orders that the decision dated 13 August 2007 be amended by adding the following words after the word “week” on the second line:
“with such suspension to commence from 10 September 2007”.
………………………….
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/79
GENERAL DIVISION )
RE: MELVIN
BARTHOLOMEUSZ
Applicant
AND: ACT GAMBLING AND
RACING COMMISSION
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 13 August 2007
Decision :
The decision under review is set aside and substituted by a decision that the applicant’s casino employee licence is suspended for a period of one week.
……………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/79
GENERAL DIVISION )
RE: MELVIN
BARTHOLOMEUSZ
Applicant
AND: ACT GAMBLING AND
RACING COMMISSION
Respondent
REASONS FOR DECISION
13 August 2007 Mr M H Peedom, President
Background
On 11 July 2006 Mr D Baldev attended the Canberra Casino (“the casino”) for a pre-arranged meeting with its general manager, the applicant. At the time of the meeting Mr Baldev was an “excluded person” within the meaning of the Casino Control Act 2006 (“the Act”) and not permitted to enter or to remain in the casino.
2. On 18 October 2006 the respondent made a decision that the applicant had contravened section 85(1) of the Act by allowing Mr Baldev to enter the casino and suspended the casino employee licence held by him for a period of 4 weeks from 16 November 2006 to 13 December 2006. The decision, made pursuant to section 59 of the Act, is the subject of the application for review of decision in this case.
3. Provision for an application to be made to review such a decision is contained in section 137, Table 137, Item 16 of the Act.
4. By order dated 27 October 2006 the Tribunal stayed the decision under review pending a decision on the ultimate hearing of the application for review of decision by the Tribunal or further order.
The T documents
5. The events which gave rise to Mr Baldev being excluded from the casino, his attendance at the casino on 11 July 2006 and the disciplinary action taken against the applicant are described in documents provided to and generated by the respondent in the course of its investigation of the matter. Those documents include the evidence on which the respondent based its findings on material questions of fact and were part of the material lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 (“the T documents”). The T documents record the following events.
6. At about 11.20pm on 24 December 2005, Ms L Bryant, a dealer in the gaming department at the casino observed Mr Baldev doing up the fly of his trousers after apparently having urinated under a gaming table. She reported the incident to other staff at the casino and made a report about the incident shortly afterwards. Mr Baldev was directed to leave the premises by Mr M Tankey, an acting security supervisor. Mr M Baker, the gaming shift manager, requested a security shift manager, Mr D Rusinski, to prepare a permanent exclusion notice to be issued to Mr Baldev when he next entered the casino.
7. On 31 December 2005 Mr Baldev was observed in the casino by a staff member. A security shift manager, Mr M Nayler, explained to Mr Baldev that he was being excluded permanently from the casino due to the incident on 24 December 2005. An exclusion notice in relation to Mr Baldev, dated 31 December 2005, was expressed to be effective immediately and to remain permanently in force. Mr Baldev acknowledged the exclusion but refused to provide any identification and to sign or accept the notice. He was then escorted from the casino.
8. An exclusion profile containing identifying physical features of Mr Baldev, a photograph of him, details of the reason for his exclusion, the period of its effect and other details, was generated and kept in the electronic and printed records of the casino.
9. Mr Baldev attended the casino on 11 July 2006. In a written statement dated 11 July 2006 Mr Tankey reported that Mr Baldev had entered the main foyer of the casino and advised him that he had a meeting with the applicant. He directed Mr Baldev to the guest services area. He observed the applicant arrive at the foyer and then proceed with Mr Baldev towards the entrance of the casino. He reported further that he informed the applicant that Mr Baldev “was permanently excluded” from the casino. The applicant replied “I have a meeting with the man”. The applicant and Mr Baldev then entered the casino restaurant. Mr Tankey advised surveillance, the security manager and his security shift supervisor of the situation.
10. Mr M Hines is an Assistant Manager, Compliance and Investigations with the respondent. According to a file note recorded by him on 12 July 2006 Mr A McGrath, the security and surveillance manager of the casino, met with him and discussed the incident at the casino on the previous day. Mr McGrath said that he had informed the applicant that he would notify the respondent of the matter and seek further advice. Mr McGrath had told him that a number of staff of the casino were not happy because of the appearance of a cover-up by management but there was no intention to cover the matter up. There was further discussion about the possible need for an area within the casino premises to be excluded from the area designated for the purpose of its licence so as to permit excluded persons to meet with casino staff.
11. Later, on 12 July 2006 Mr McGrath sent an email to a number of the respondent’s officers. In the email he reported that on the previous day an excluded person, Mr Baldev, went into the casino restaurant to conduct a meeting with the applicant. This, he said, had followed several approaches by Mr Baldev to speak with the applicant after an earlier meeting and phone conversation. After he was advised of Mr Baldev’s presence in the casino, Mr McGrath said that he contacted the applicant by mobile phone and advised him that, due to Mr Baldev still being excluded, he should not be on the premises. Mr Baldev then left the premises and Mr McGrath explained to the applicant why he believed Mr Baldev should not be in the casino. He further stated that there was no official incident report, log or entry in the exclusion register, other than the email, due to the odd nature of the breach. He said that the purpose of the meeting was to hear what Mr Baldev had to say about the incident and to see exactly what he was looking for.
12. By letter dated 14 July 2006 the respondent’s chief executive, Mr G Jones, requested the applicant to provide a written outline of the circumstances of the incident on 11 July 2006, including an explanation as to why Mr Baldev was permitted to enter the casino.
13. On 17 July 2006 the applicant attended the respondent’s offices and met with Mr Jones. There was no record kept of the meeting apart from a brief entry in Mr Jones’ diary and there was disputed evidence given at the hearing, referred to below, as to what was said but it is agreed that Mr Jones again requested the applicant to provide a written explanation regarding the incident on 11 July 2006.
14. On 27 July 2006, before any response had been received, the respondent resolved to issue a letter to the applicant requesting him to “show cause” in relation to the incident and advising him that the respondent was considering issuing a reprimand to him for breaching the Act.
15. A further letter dated 4 August 2006 sent by Mr Jones to the applicant expressed an understanding that Mr Tankey had advised the applicant that Mr Baldev was an excluded person, however, the applicant had escorted Mr Baldev into the casino for a meeting to discuss his exclusion. The letter noted that there had been no reply to Mr Jones’ letter of 14 July 2006 and that the respondent was considering the imposition of a reprimand pursuant to section 57(a) of the Act in respect of the applicant’s contravention of section 85 of the Act. He was requested to respond within 3 weeks of the date of the letter.
16. In a letter dated 4 August 2006 to Mr Jones in response to Mr Jones’ letter dated 14 July 2006, the applicant advised that he had first been contacted by Mr Baldev by telephone some time in March 2006 and he had suggested that Mr Baldev “call me after 6 months in June”. Mr Baldev had later phoned and said that “the 6 months were now up” and asked for a meeting to explain and apologise for his behaviour. The letter stated that Mr Baldev’s remarks had caused the applicant to believe, erroneously, that Mr Baldev had only been excluded for 6 months. When he was advised by Mr McGrath that Mr Baldev’s exclusion was permanent, the meeting terminated immediately and Mr Baldev was escorted from the casino. The letter said that there was nowhere in the casino for excluded persons to state their case and this unfairly disadvantaged patrons and denied them natural justice. He asked to discuss the possible de-designation of part of the casino premises to allow important, sensitive discussions to take place.
17. According to a file note prepared by Mr Hines, at a meeting attended by Mr Hines, another of the respondent’s officers, Mr Tankey and Mr McGrath on 11 August 2006, Mr Tankey said, inter alia, that on the night of the incident he had told the applicant that “Mr Baldev was permanently excluded” and the applicant replied that he had a meeting with Mr Baldev. He had considered physically stopping Mr Baldev but had decided this was not appropriate.
18. On 21 August 2006 the applicant wrote to Mr Jones in response to the latter’s letter dated 4 August 2006. He said that his initial letter to Mr Jones dated 4 August 2006 apparently had not been received by Mr Jones before Mr Jones wrote the letter to him dated 4 August 2006.
19. In the letter to Mr Jones dated 21 August 2006 the applicant stated that he misheard Mr Tankey’s comment and believed that Mr Tankey had told him that Mr Baldev was “previously” excluded. When the matter was explained to him he had immediately terminated the interview with Mr Baldev. He said that he felt he had an ethical and professional duty to hear Mr Baldev out. He had made an erroneous assumption about Mr Baldev’s status and he regretted his inadvertent slip. He accepted that he should have checked the facts and gave a commitment to be more cautious in the future.
20. At their meeting on 31 August 2006 the respondent’s members resolved to send a revised “show cause” notice to the applicant advising that the respondent was considering suspending the applicant’s employee’s licence for a period of 4 weeks.
21. In a letter to the applicant dated 18 September 2006 advising that the respondent had revised its position and was now considering suspension of the applicant’s licence Mr Jones said that the respondent had a number of concerns about the applicant’s responses to the requests for an explanation of his conduct. In particular, the letter challenged the accuracy of his explanation that he believed that Mr Baldev was only excluded from the casino for 6 months; noted his failure to refer in his letter dated 4 August 2006 to his conversation with Mr Tankey on the day of the incident; challenged the consistency of his explanations; and expressed significant concern that the normal reporting and recording procedures of the incident were not undertaken. The letter invited a response.
22. In a written response dated 9 October 2006 the applicant accepted that he should have been aware Mr Baldev was excluded and should not have been permitted in the casino. He said that approximately 458 persons had been excluded from the casino and he did not have knowledge of them all. Mr Baldev had been excluded while he was on leave and the only information he had about the incident was an email message. After reviewing the email correspondence he now recalled a phone conversation with Mr Baldev about an alcohol-fuelled incident that had led to his exclusion. He did not call for the file in relation to the matter but accepted that he should have done so. He considered, however, that he probably would have asked for the file on “Mr Bedi” and would have been advised that there was none. He believed that a 6 month exclusion would have been consistent with the approach of the casino to dealing with alcohol related incidents. He had believed that Mr Baldev wanted to apologise for his behaviour. He had been advised by Mr McGrath that Mr McGrath would report the incident to the respondent and he gave no instruction not to report the matter in the usual way or in the method of any communication of it. He said that the imposition of the suggested penalty would be harsh and unreasonable. He had not previously been the subject of disciplinary action and he provided a summary of his career and two character references from officers of a casino operating company with whom he formerly worked.
23. The applicant also provided a statement from Mr McGrath who said that, after Mr Baldev had left the casino on 11 July 2006, the surveillance shift manager, Mr C Hammerschmid, asked if Mr McGrath wanted him to report the incident in the surveillance duty log. Mr McGrath had replied “It’s OK mate I will take care of it”. He had then met with the applicant to discuss the matter and advised the applicant that he would inform the respondent of the matter by email which he did on the following day.
24. On 18 October 2006 the respondent resolved to suspend the applicant’s employee’s licence for a specified period of 4 weeks.
The hearing
25. The applicant was represented at the hearing of the appeal by Mr J Purnell SC. The respondent was represented by Mr K Archer, of counsel. Evidence was given by the applicant and, on his behalf, by Mr Tankey, Mr McGrath and Mr D Lee. Evidence was given on behalf of the respondent by Mr Jones, Mr Hines and Ms A Notaras. A number of documents was tendered in evidence.
26. A written statement dated 5 March 2007 signed by Mr Tankey was tendered in evidence. In the statement Mr Tankey said that when Mr Baldev had attended the casino on 11 July 2006 he directed him to the guest services desk. When the applicant had arrived to meet Mr Baldev in the casino foyer Mr Tankey said to him “Melvyn, this man is excluded”. The applicant replied that he had a meeting with Mr Baldev and then walked in to the casino restaurant with Mr Baldev. Mr Tankey wrote an account of the matter in his security notebook and advised his supervisors of the incident.
27. In his evidence given at the hearing, Mr Tankey said that when the applicant had met Mr Baldev in the foyer of the casino he had said to the applicant that “this guy was excluded”. He had then typed out the statement set out at paragraph 9 above. Upon re-reading the statement, he did not say to the applicant that Mr Baldev was “permanently” excluded. His notebook correctly recorded the conversation. Mr Tankey’s notebook, which was tendered in evidence, recorded that “I informed the GM that the male was excluded and the GM said that he was taking him in for a meeting”.
28. Mr Tankey said that he had known the applicant since he became manager of the casino and regarded him as a stickler for the rules and that he followed procedures to the letter of the law.
29. In cross-examination, Mr Tankey agreed that Mr Hines and another of the respondent’s officers, Mr Waugh, recorded in a file note of his discussion with them on 11 August 2006 that he had told the applicant that Mr Baldev was permanently excluded from the casino. He did not recall the exact words that he had used. He may have used the word “permanently” but the word “excluded” was definitely used.
30. In a written statement tendered in evidence Mr McGrath said that, after he had confirmed on 11 July 2006 that Mr Baldev was in the casino, he contacted the applicant by mobile phone and advised him that Mr Baldev was currently excluded from the casino and should not be on the premises. He had told another member of the casino staff that he would take care of recording the incident. He had then met the applicant who told him that he thought that Mr Baldev’s exclusion had expired. The applicant said that he did not hear Mr Tankey clearly when they had met in the foyer and that he had told Mr Tankey that he had a meeting with Mr Baldev. He said that he told the applicant that it was an unusual incident and that he would inform the respondent of the incident by email.
31. At the hearing of the appeal Mr McGrath gave evidence that, in his experience at the casino, the applicant had been very concerned to ensure that staff understood what was going on and that he had a low tolerance of errors. Mr McGrath had never been requested by the respondent to put in an official report about the incident on 11 July 2006. He agreed that, at the meeting he attended with Mr Hines and Mr Waugh on 12 July 2006, that he had told them that when he contacted the applicant on his mobile phone on 11 July 2006 he had told the applicant that Mr Baldev was permanently excluded from the casino and should not be on the premises. He said that the normal way of dealing with a breach of an exclusion notice was to prepare an incident report and to make an entry in an exclusion register. This practice had not been followed in relation to the incident on 11 July 2006 because Mr Baldev had been invited into the casino by the applicant and would have thought he was allowed to be there. When he sent the email to the respondent on 12 July 2006 he was seeking their advice about how to deal with the matter. He accepted that he had never explained the matter clearly. When he told Mr Hines and Mr Waugh that he informed the applicant that Mr Baldev was permanently excluded he was relying on a conversation he had had with Mr Tankey.
32. In cross-examination, Mr McGrath agreed that it would only take a matter of seconds to undertake a search of the excluded persons database to obtain information regarding Mr Baldev’s status as an excluded person. He agreed that a long time before 11 July 2006 the applicant had spoken to him about contact he had had with Mr Baldev. The applicant told him that he had told Mr Baldev that he would not meet with him until his exclusion had expired. The applicant had also told him that the applicant had met with Mr Baldev on another occasion before 11 July 2006. He did not think that he had drawn the applicant’s attention to matters in the exclusion report regarding Mr Baldev but he agreed that the applicant may have asked him what he knew about Mr Baldev and that he may have provided the applicant with a copy of the profile regarding Mr Baldev a long time before 11 July 2006. Given the nature of the incident he was fairly sure that “most of us” knew about the incident. He agreed that it would have been a natural thing for him to provide the applicant with information about the person he was proposing to be dealing with. He believed that the meeting that the applicant had had with Mr Baldev before 11 July 2006 had taken place in the Crowne Plaza Hotel. In his experience, it had not been the practice of the applicant to meet with excluded persons.
33. The applicant gave oral evidence at the hearing. He said that he had first met Mr Baldev in March 2006 in the foyer of the casino. He had no forewarning of the meeting. Mr Baldev said that he wanted to talk about an alcohol related incident at the casino that happened in December 2005. The applicant explained to Mr Baldev that he could not speak with him then as he was on his way to attend an appointment. The applicant gave Mr Baldev his telephone number and suggested that he phone him. Ordinarily, if a person was behaving badly as the result of alcohol consumption, the person would be excluded from the casino for a period of 6 months or some time shorter. Mr Baldev telephoned the applicant about a week later in March. He said that he wanted to speak to him about an incident that occurred in December. The applicant told Mr Baldev to call him in about 6 months from the date of the incident. He received another call from Mr Baldev in July 2006. Mr Baldev told him that he wanted to apologise for his behaviour. The applicant arranged for Mr Baldev to call and see him at about 6 o’clock on 11 July.
34. On 11 July 2006 he was notified by the counter staff that Mr Baldev had arrived to see him. He went to meet Mr Baldev in the foyer. Mr Tankey was present at the doorway. Mr Tankey said to him that Mr Baldev was a “previously” excluded person. He told Mr Tankey not to worry about it as Mr Baldev was under his supervision and had come to apologise about his behaviour on a previous occasion. He then went with Mr Baldev to the restaurant of the casino. He had regarded Mr Tankey’s remarks as a warning to him to be careful because Mr Baldev had created trouble in the past. After a short while he received a phone call from Mr McGrath who said to him that he was meeting with an excluded person and that he must terminate the meeting. The applicant said to Mr Baldev that he was permanently excluded and Mr Baldev responded that he did not know. The applicant then terminated the meeting. After Mr Baldev left the casino Mr McGrath came into the applicant’s office. Mr McGrath asked him if he did not know that Mr Baldev was excluded and he responded “No”. He said that when Mr Baldev arrived at the casino he heard Mr Tankey say that Mr Baldev had been previously excluded. He would not have met with Mr Baldev if he had known that he was permanently excluded. He had failed to check on Mr Baldev’s status before the meeting and he regretted that he had not done so.
35. At the meeting the applicant had with Mr McGrath immediately after the incident on 11 July 2006, Mr McGrath said that he would send an email report to the respondent. The applicant had said “Yes it will have to be reported”. He thought Mr McGrath also said that he would make telephone contact with someone at the respondent’s office. The applicant left it to Mr McGrath to determine how the reporting should be done.
36. The applicant said that he had logged onto a computer to find out more information about Mr Baldev shortly before he met in his office with Mr McGrath. He received a hard copy of the information on the computer about two days after the incident.
37. After he received Mr Jones’ letter dated 14 July 2006 he contacted Mr Jones by telephone on 17 July 2006 to arrange to meet to discuss the matter. He said that he met with Mr Jones, Mr Hines and Ms Notaras at the respondent’s offices on 17 July 2006. He took Mr Lee, the casino financial director, with him. Mr Hines took notes at the meeting. The applicant said that he described the incidents leading up to his meeting with Mr Baldev including that he had been told by Mr Tankey that Mr Baldev had been previously excluded. He was not aware that Mr Baldev was permanently excluded. They had also discussed difficulties in conducting meetings such as his meeting with Mr Baldev as the entire area of the casino was designated as a casino area and the options to overcome these difficulties. Mr Jones had asked him to give his explanation about the incident in writing. He received the letter dated 4 August 2006 to him from Mr Jones after he had sent his letter dated 4 August 2006, which the casino’s in-house legal counsel assisted him to draft, to Mr Jones. He did not say anything about his conversation with Mr Tankey in his letter to Mr Jones dated 4 August 2006 because he felt the matter was alcohol related and with a 6 month exclusion. He did not think it was important because had been told by Mr Tankey that Mr Baldev had been previously excluded and he had told the meeting on 17 July of his conversation with Mr Tankey.
38. The applicant said that he had not given Mr McGrath any direction as to how he should perform his duties in reporting the incident to the respondent. He had assumed that if the respondent wanted there to be any reporting additionally to the normal log book record that it would have written to the casino asking that that be done. The kind of information recorded by Mr McGrath in the email was very similar to the kind of information or the detail of it that would be included in an incident report. An exclusion log would simply record the fact of the exclusion of a particular person.
39. The applicant said that in all his experience in the casino industry he had never seen a penalty as harsh as that had been imposed on him by the respondent. The financial effect on him of a 4 week suspension would result in a financial loss to him of approximately $12,500.
40. In cross-examination, the applicant said that he appreciated when he wrote the letter dated 4 August 2006 to the respondent that it was important for him to give a full account of the events leading up to his meeting with Mr Baldev. He had given all of the information to the casino’s in-house counsel who had drafted the letter for him to sign. He considered that he had given a full and fair account of his dealings with Mr Baldev in his letter dated 4 August 2006 and in his meeting with Mr Jones on 17 July 2006.
41. The applicant said that he was on leave at the time of the incident involving Mr Baldev in December 2005 and that when he returned to work he received a copy of all reports of incidents that occurred in his absence. He read them and had any necessary follow-up discussions with staff including Mr McGrath. As at 4 August 2006 the information regarding Mr Baldev was still on his computer screen. He only looked at the incident report again on the night of the incident. He said that when he met Mr Baldev in the foyer of the casino in March 2006 Mr Baldev had said that he wanted to discuss with him an alcohol-fuelled incident. He was embarrassed and had wanted to apologise for his behaviour. The applicant had said that if it was an alcohol-related issue, it normally takes about 6 months for the matter to be cleared up and he should phone in June. He had not mentioned the meeting with Mr Baldev in his letter to the respondent dated 4 August 2006 because, he said, he had explained that at the meeting with Mr Jones on 17 July 2006. He had mentioned the contact he had had with Mr Baldev to Mr McGrath on the day of the incident. He had read the email report of the incident involving Mr Baldev in December 2005 on his return from leave. He had asked Mr McGrath whether he knew anything about Mr Baldev. Mr McGrath had said that nothing serious that he should mention. He did not ask Mr McGrath to look into the matter further. He agreed that when he met Mr Baldev in the casino in March 2006 he knew Mr Baldev was an excluded person. He could have readily obtained information to show whether Mr Baldev was an excluded person and, if so, the reasons for that from the casino’s records. Mr Baldev did not ask for permission to come to see him in the casino on 11 July 2006. If he was not then an excluded person he was entitled to be there. He understood that Mr Baldev had wanted to come to give an apology for his behaviour. He had assumed that the 6 month period had expired because he had told Mr Baldev to phone him after 6 months had expired and he thought it appropriate to trust the customer. He had formed the opinion from his meeting with Mr Baldev in March 2006 that he was a decent person in the business community because he was dressed in a suit. He had gone into the restaurant to meet with Mr Baldev because it was not crowded and it could be monitored by camera coverage. He agreed that in none of the material lodged by him or on his behalf was there any reference to Mr Hines and Ms Notaras attending the meeting at the respondent’s offices on 17 July 2006. He said that at the meeting he gave a complete account of his meetings with Mr Baldev including the contact he had had with him in March 2006. He rejected the suggestion put to him that he had made no reference at the meeting to his conversation with Mr Tankey when Mr Baldev had entered the casino on 11 July 2006.
42. In re-examination he said that he had not become aware that there was a conflict between his evidence and that of Mr Tankey until he received the letter from the respondent dated 18 September 2006.
43. Mr Lee is the Director of Finance at the casino. In a written statement dated 15 February 2007 tendered in evidence he said that he had accompanied the applicant to the meeting with Mr Jones on 17 July 2006. The applicant explained to the meeting his understanding was that Mr Baldev had been excluded for unacceptable behaviour approximately six months previously and had been contacting the applicant to discuss the exclusion. The applicant had said that Mr Baldev had talked to him in about March and again in early July. Mr Lee’s recollection was that the applicant agreed to meet Mr Baldev. The applicant had also said that he believed Mr Baldev wanted to see him to apologise for the behaviour which led to his exclusion. The applicant told the meeting that the reason he had allowed Mr Baldev into the casino was that he believed Mr Baldev, at the time of the meeting on 11 July 2006, to be a previously excluded patron. He did not believe that any reference had been made to Mr Tankey at the meeting but he was not certain. Mr Lee has known the applicant for approximately 12 years and during this time has found him to be a man of honesty and integrity. He had stressed to staff of the casino on a number of occasions that compliance with the requirements of the Act was of paramount importance.
44. When asked in cross-examination whether matters other than those of which he had given evidence had been discussed, Mr Lee said that he did not recall other matters. When it was suggested to him that there had been discussion about the designation of the area he agreed that this had been discussed but he did not agree that it was the dominant item of the discussion. Mr Lee agreed that he had made no notes of the meeting on 17 July 2006 and that he had attended a number of meetings with officers of the respondent at which Mr Hines and Ms Notaras had also been present and that he had not made reference in his statement to them being present at the meeting on 17 July 2006. He said that, to the best of his recollection, Mr Hines and Ms Notaras were present at the meeting.
45. Mr Jones gave evidence on behalf of the respondent. He said that the meeting on 17 July 2006 had been arranged at the request of the applicant. The only persons who attended the meeting were the applicant, Mr Lee and himself. He said that he was not informed at that meeting that the applicant had been told by Mr Tankey, when Mr Baldev entered the casino on 11 July 2006, that Mr Baldev had been “previously excluded” nor had the applicant made any reference to having had contact with Mr Baldev in March 2006. He first became aware of the applicant’s explanation that he understood that Mr Baldev had been “previously excluded” when he read his letter dated 21 August 2006. He had attended a number of other meetings with the applicant during 2006 at which Mr Hines and Ms Notaras had sometimes been present. He said that the applicant referred only briefly to the incident on 11 July 2006 and then went on to discuss the difficulty that existed due to the absence of any suitable part of the casino being de-designated so as to enable persons who had been excluded from the casino to talk to staff of the casino. Mr Jones had outlined a number of options that existed to address that issue.
46. Mr Jones’ diary entry for 17 July 2006 was admitted in evidence. It recorded an appointment to meet at his office with the applicant at 11.00am “re: exclusion incident”. The diary also noted that the applicant was required to provide a written response to Mr Jones’ letter dated 14 July 2006; changing Regulations (to accommodate the applicant’s request to de-designate part of the casino) would be difficult and time consuming; and that the (Crowne Plaza) hotel or a restaurant were suggested (as locations for sensitive meetings).
47. In cross-examination Mr Jones agreed that the entries in his diary other than details of the time, place and purpose of the appointment, were recorded after the meeting concluded. The diary did not record the names of persons present at the meeting. He said that it was his expectation that when the applicant requested the meeting scheduled for 17 July 2006 he would give an outline of how the incident on 11 July 2006 had occurred, what happened and what would be done to prevent a recurrence. He had not arranged for someone to be present to record the meeting because he anticipated that only he and the applicant would be present. In response to a question as to what matters were discussed at the meeting, he said that there was discussion about how the casino staff could meet excluded persons in acceptable circumstances. The options identified were conducting meetings in the Crowne Plaza Hotel next door to the casino or amending the legislation to de-designate an area of the casino. There were no other topics discussed. He had made an oral report of the meeting on 11 July 2006 to the respondent but had not prepared any written report. He denied that there had been any discussion of the incident on 11 July 2006 at the meeting. The only mention the applicant had made to the incident on 11 July 2006 was in relation to the context of finding a place for the casino to meet excluded persons. He did not make notes of the meeting because he had always intended that the applicant provide a written explanation of the incident and because there was nothing said by the applicant at the meeting that assisted the investigation.
48. Mr Hines is an Assistant Manager of the respondent’s Compliance and Investigations Unit. In a written statement tendered in evidence he said that he attended a meeting with the applicant on 11 August 2006. The meeting was also attended by Mr Lee, Mr Jones and Ms Notaras. He contemporaneously made notes of the meeting which recorded the identity of the persons present and the topics of discussion. He said that he was aware that Mr Jones was proposing to meet the applicant and Mr Lee on 17 July but he did not attend that meeting. He attended other meetings on that date and recorded details of them as was his ordinary practice.
49. In cross-examination Mr Hines said that he had spoken to Mr Jones after his meeting with the applicant on 17 July 2006. Mr Jones had told him that Mr Lee had also been present and that the meeting predominantly discussed the possibility of de-designating an area of the casino.
50. Ms Notaras is an employee of the respondent. In a written statement tendered in evidence, she said that she had attended a number of meetings at which the applicant had been present. The meetings related to changes that had been made to the Act. She attended a meeting on 11 August 2006 at which the applicant, Mr Lee, Mr Jones and Mr Hines had been present. The meeting had discussed control procedures at the casino, a breach by the casino in its conduct of the game “Pontoon” and the manning levels of the casino’s surveillance department. There had been no discussion regarding the incident on 11 July 2006. She produced her notes of the meeting.
51. In evidence given at the hearing Ms Notaras said that she did not attend a meeting with the applicant and Mr Lee on 17 July 2006. She had been on approved recreation leave on that date. She produced a copy of her leave form for that date certified by her and her supervisor.
52. In cross-examination she denied that she had attended any meetings between 11 July 2006 and 11 August 2006 with the applicant and Mr Lee or that she attended a meeting with them on 17 July 2006.
The law to be applied
53. Section 56 of the Act specifies the grounds for taking disciplinary action against a casino employee. Relevantly to the circumstances of this case, paragraph (1)(d) of section 56 makes a contravention of the Act by a casino employee a ground for taking disciplinary action.
54. The disciplinary action that is able to be taken against a casino employee is set out in section 57 of the Act. It provides:
57 Disciplinary action against casino employee
Each of the following is a disciplinary action when taken against a casino employee:
(a) reprimanding the casino employee;
(b)putting conditions on, or amending the conditions of, the casino employee’s licence;
(c)amending the casino employee’s licence to change the prescribed functions the casino employee may perform in relation to the casino;
(d) suspending the casino employee’s licence;
(e) cancelling the casino employee’s licence.
55. Section 58 of the Act provides:
58 Criteria for disciplinary action against casino employee
(1)In deciding whether to take disciplinary action, or what disciplinary action to take, against a casino employee, the commission must consider the following:
(a)whether action has previously been taken against the casino employee;
(b) the seriousness of any contravention of this Act;
(c)the likelihood of further disciplinary action needing to be taken against the casino employee.
(2) The commission may also consider any other relevant matter.
56. Section 59 of the Act requires that before disciplinary action is taken, notice of the grounds for taking that action is required to be given to the casino employee and that he/she be given opportunity to respond. Subclause (3) of section 59 provides:
(3)If, after considering any responses given within the 3-week period, the commission is satisfied that a ground for disciplinary action exists in relation to the casino employee, the commission may take disciplinary action against the casino employee.
57. The provision of the Act alleged by the respondent to have been contravened by the applicant is section 85. It provides:
85 Casino official not to allow excluded person to enter casino
(1) A casino official commits an offence if the official allows an excluded person to enter or remain in the casino.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability offence.
(3)It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had no reasonable grounds to believe that the person was an excluded person.
Reasons for decision
58. The offence created by section 85 of the Act is an offence of strict liability and does not require proof of fault on the part of the person charged. It makes available, however, a defence that the official who allowed the excluded person entry to the casino had no reasonable grounds to believe that that person was an excluded person. The defence is required to be proved by the official charged with the offence.
59. The evidence before the Tribunal establishes that the incident which gave rise to Mr Baldev’s exclusion from the casino occurred at a time when the applicant was absent from the casino on leave but that he was provided with and read an emailed report of the occurrence and the action taken to address it on his return. He conceded in his letter to the respondent dated 9 October 2006 that Mr Baldev had informed him that as the result of an incident he had been excluded from the casino. He was, therefore, specifically put on notice prior to the incident on 11 July 2006 that Mr Baldev was a person affected by an exclusion order. According to his own evidence the applicant received a telephone call and had a meeting with Mr Baldev in March 2006 and received a further telephone call from him in July, a few days prior to the incident on 11 July 2006 in which reference was made to his status as having been made an excluded person. Significantly, while the applicant gave a version of his communications with Mr Baldev which he said caused him to make an assumption that Mr Baldev had been excluded from the casino for a period of about 6 months, he does not attribute any specific claim or statement made by Mr Baldev that the period of his exclusion had expired by the date on which he met with him in the casino.
60. The applicant’s explanation of his omission to confirm Mr Baldev’s status by reference to records of the casino is not supported by the evidence of Mr McGrath that, despite not having a present recollection of having done so, it would have been a natural thing for him to have provided the applicant with the profile of information held by the casino in relation to Mr Baldev when he was advised by the applicant that he intended to meet with him. The applicant’s explanation is inconsistent with the competence of a person of his experience, particularly given the evidence presented on his behalf that he is a person who insisted upon strict compliance with legal requirements affecting the casino’s operations.
61. A defence of the kind raised by the applicant may have gained acceptance in circumstances where, for example, a search of the records of the casino failed to confirm Mr Baldev’s status as an excluded person at the relevant time. Given the information that had been provided to the applicant about Mr Baldev, however, the defence is not, even accepting the explanation given by him, capable of being established by him choosing to ignore the records of the casino kept by it under his management and control and which he conceded would have been a readily accessed source of information to accurately reveal the status of Mr Baldev on the date he permitted his entry to the casino.
62. In the circumstances, I do not accept that the applicant has discharged the onus of proving that he had no reasonable grounds to believe that on 11 July 2006 Mr Baldev was an excluded person.
63. It was further submitted on behalf of the applicant that, irrespective as to the grounds for any belief that he may have had in relation to Mr Baldev’s status, the evidence showed that he did, in fact, believe that Mr Baldev was no longer an excluded person when he met with him in the casino and that when he learned of his mistake he took prompt action to make a full and frank disclosure about it to the respondent’s chief executive officer at the earliest opportunity following the incident.
64. The submission made on behalf of the applicant in relation to his actual belief of Mr Baldev’s status relied upon the applicant’s evidence that he had drawn inferences about that matter from a reference made by Mr Baldev in conversation with him to the fact that he had been involved in an “alcohol-fuelled” incident and that he heard Mr Tankey tell him that Mr Baldev was a “previously excluded” person rather than that Mr Baldev was “permanently excluded”, as Mr Tankey reported in his written statement prepared and signed on the day of the incident. It was submitted on behalf of the respondent that the applicant’s evidence was unreliable and should not be accepted by the Tribunal.
65. The reference said by the applicant to have been made by Mr Baldev to “an alcohol-fuelled incident” speaks only of the cause of or explanation for his conduct. It says nothing of the nature of the incident or of the conduct of Mr Baldev that led to his exclusion from the casino. Under the casino’s exclusion guidelines, the main determinant of the period of any exclusion is the type of behaviour involved. To the extent to which intoxication or alcohol is made a specific component of any such behaviour the exclusion terms specified range from 24 hours to 12 months. Neither the reference relied upon nor the casino’s guidelines, which the applicant by the terms of his casino employee licence is authorised to supervise, provide a satisfactory basis for the drawing of the claimed inferences.
66. In relation to the submission as to the comments attributed to Mr Tankey, I note that according to the evidence before the Tribunal the applicant met with Mr McGrath soon after the incident on 11 July 2006 and explained to him why Mr Baldev should not be on the premises, advised him that he would report the matter to the respondent and otherwise discussed the matter. Mr McGrath’s discussion with Mr Hines on the day following the incident proceeded on the basis that Mr Tankey had advised the applicant that Mr Baldev was “permanently excluded” from the casino. His emailed report sent to the respondent’s officers on 12 July 2006 contains no reference to the explanation which the applicant invited the Tribunal to accept and which he relied upon as consistent with him making an error because of information incorrectly given to him by a member of his staff. Based upon his involvement in the matter in the days following the incident, there is nothing in Mr McGrath’s reporting of it that is consistent with the applicant’s evidence as to what he had been told by Mr Tankey.
67. In his evidence in chief Mr Tankey did not state that he had used the words “previously excluded”. Such a statement would have been inconsistent with his knowledge of the fact that Mr Baldev had been permanently excluded and with his evidence that he had given consideration to physically intervening to prevent the applicant meeting with Mr Baldev in the casino. If Mr Baldev was not then an excluded person there would have been no occasion for Mr Tankey to take such action. His written statement of evidence that he informed the applicant that “this man is excluded” was modified by his oral evidence to say “this guy was excluded”. I note further that he agreed in cross-examination that he may, in fact, have advised the applicant that Mr Baldev was “permanently excluded” and that he did not dispute the accuracy of Mr Hines’ file note of the meeting he had with Mr Hines and Mr Waugh on 11 August 2006 which recorded that he had told the applicant that Mr Baldev was “permanently excluded”. No version of Mr Tankey’s evidence is consistent with a clear statement that Mr Baldev was a person who was, at the date the words were spoken, a person who had been but had ceased to be a person excluded from the casino. Mr Tankey’s evidence does not support the existence of a basis for the belief which it was submitted the applicant held.
68. In relation to the submission that the applicant made a full and frank explanation of his conduct to the respondent at the earliest opportunity, I note that the applicant’s first written account to the respondent of the incident, his letter to Mr Jones dated 4 August 2006, contained no reference to information having been given to him incorrectly by a member of the casino staff. Rather, he proffered the explanation that his state of belief was based upon discussions he had had with Mr Baldev, from which he apparently drew inferences about Mr Baldev’s status. The submission made on his behalf sought to explain the absence of such reference to the fact that he had already provided that information to Mr Jones at their meeting on 17 July 2006.
69. It is surprising that, in the applicant’s letter dated 4 August 2006, responding to the letter from the respondent which drew the attention of the applicant to the fact that he may have committed an offence against the Act and calling for an explanation, he would fail to make reference to facts upon which he placed such reliance at the hearing of the appeal. Doubt about the reliability of the applicant’s evidence is also cast by the assertion made by him in his letter to Mr Jones dated 9 October 2006 that, had he called for a file relating to a “Mr Bedi”, he would have been told that there was none. That assertion contrasts with his earlier written explanations to the respondent which referred specifically to Mr Baldev and gave no indication that there had at any time been doubt as to his identity and his acceptance in giving evidence before the Tribunal that information regarding Mr Baldev could have been readily accessed by him from the casino’s records.
70. Mr Lee in his evidence in chief did not assert, in specific terms, that the applicant had informed the meeting on 17 July 2006 that he had been incorrectly informed that Mr Baldev was a person who had been “previously excluded” from the casino. According to Mr Lee’s recollection no reference had been made at the meeting to Mr Tankey. It is difficult to accept that any full and frank explanation of the applicant’s conduct on 11 July 2006 could have avoided reference to Mr Tankey if the applicant’s version of that explanation was accurately given.
71. Mr Purnell sought to cast doubt on the reliability of Mr Jones’ evidence that he had not been given the information regarding Mr Tankey’s comments to the applicant at the meeting on 17 July 2006 by drawing attention, inter alia, to the fact that Mr Jones, in his letter dated 4 August 2006, had invited the applicant to discuss the matter of the alleged breach of section 85(1) of the Act and that he noted in his diary that he had recorded the purpose of the meeting as to discuss with the applicant “the exclusion incident”.
72. Mr Jones’ letter does not, in terms, invite a discussion about the incident. It specifically calls for a written response to the allegation that a breach of section 85(1) had occurred and indicates a preparedness to discuss the matter. He explained his recording of the purpose of the meeting in his diary as the expectation he had arising from the request that the applicant had made for the meeting. The account he recorded in his diary of the matters discussed is not inconsistent with that given in his evidence to the Tribunal and with documentary evidence before the Tribunal that indicates the applicant’s concern to explain the apparent breach as connected with the designation of the area of the casino in a manner that left no satisfactory opportunity for discussion about exclusion issues with affected persons. He explained the absence of a more detailed note in his diary, or otherwise, of any discussion which he had with the applicant about the incident on 11 July 2006 as attributable, inter alia, to the fact that there had only been brief reference made by the applicant to it, that he had listened to such explanation as had been given without making comment on it and had reiterated his request that a written explanation be provided to the respondent. I see no reason to not accept his evidence.
73. The evidence of both the applicant and Mr Lee in relation to the meeting on 17 July 2006 calls for acceptance of the applicant’s explanation having been given at a meeting attended by Mr Hines and Ms Notaras at which Mr Hines took notes. I see no reason to not accept the evidence of Mr Jones, Mr Hines and Ms Notaras, supported by the record of Ms Notaras’ leave of absence from employment on 17 July 2006, that neither Mr Hines nor Ms Notaras were present at the meeting. Nor do I find that Mr Hines made a record of such a meeting and has not disclosed it to the Tribunal. I consider that the version of the meeting on 17 July 2007 given by Mr Jones is to be preferred to that of the applicant and Mr Lee.
74. I do not, therefore, accept the submission that the applicant provided a full and frank explanation for his conduct in relation to the incident on 11 July 2006 at the earliest opportunity.
75. I conclude that there was no logical basis upon which the applicant could justify the formation of a belief that Mr Baldev was not an excluded person when he permitted him to enter the casino on 11 July 2006. The evidence establishes, in my view, that the applicant made an assumption, albeit ill-founded, as to Mr Baldev’s status and acted with careless disregard for the requirements of section 85(1) of the Act in doing so.
Penalty
76. Section 58(1) of the Act, as I have noted above, requires that certain specific matters be taken into account by the Tribunal in arriving at a decision as to whether and what disciplinary action is to be taken against a casino employee found to have engaged in conduct that constitutes a ground for disciplinary action. Section 58(2) allows a determination of those matters to take account of any other relevant matter.
77. A list of the useful factors which a court might take into account in determining the amount of a civil penalty was developed by the Australian Law Reform Commission following an analysis of considerations adopted by the courts in imposing civil penalties under the Trade Practices Act and Company Law (See Principled Regulation: Federal and Civil Administrative Penalties in Australia (2002) ALRC 95). Those factors were adopted by the New South Wales Administrative Decisions Tribunal in considering the amount of penalty to be determined under the New South Wales equivalent provision to section 47 of the First Home Owner Grant Act 2000 (see Calcaro v Commissioner for State Revenue [2004] NSWADT 158) and by this Tribunal in proceedings of a similar nature (see Taskovski and Commissioner for ACT Revenue [2007] ACTAAT 11 (25 May 2007)). Those factors, which I accept as also appropriate to be considered in the circumstances of this case, included:
(a) the deterrent effect of the penalty;
(b) the nature and extent of the contravention;
(c)any loss or damage suffered, or gain made, as a result of the contravention;
(d)the circumstances in which the contravention took place including the deliberateness of the conduct and the period over which it extended;
(e)whether professional advice had been obtained in relation to the contravention, prior to the breach;
(f)whether the person has previously been found by a court to have engaged in any related or similar conduct;
(g)the degree of cooperation with the authorities; and
(h)in the case of a natural person, the attitude of the offender.
78. In addressing the various factors identified I note that no action has previously been taken against the applicant and that it is not suggested that there is a likelihood of further disciplinary action needing to be taken against him. The need for any penalty to reflect a deterrent is affected by the fact that the casino and its staff are the only persons to which the Act has direct application, the applicant’s acknowledgement that he made a serious error in not taking appropriate steps to verify Mr Baldev’s status before he met with him in the casino, his assurance that he would take more appropriate precautions in any similar future dealings and the recognition which the evidence shows that other staff of the casino had of their obligations in relation to excluded persons.
79. The nature of the applicant’s contravention of section 85(1) is not, in my view, to be assessed as a matter of graver seriousness. The excluded person was admitted by the applicant to a part of the casino which was subject to camera surveillance where no gambling activities were undertaken and for a very brief period of time. Some account is required to be taken of the fact that the brevity of the presence of the excluded person in the casino was attributable to the fact that the applicant appears to have had impressed upon staff the need to ensure that the requirements of the Act and the control procedures put in place under it were strictly complied with.
80. No suggestion of loss, damage or gain has been made as a consequence of the contravention of the Act. As I have found, the applicant’s conduct was attributable to carelessness, albeit of a serious nature, rather than deliberateness. I have concluded also, however, that by failing to provide a full, frank and prompt explanation of his conduct, the applicant has not shown an appropriate level of co-operation with the relevant authority.
81. I accept Mr Purnell’s submission that account needs to be taken of the penalty provided for by section 85(1) of the Act, that is, 50 penalty units. According to the unchallenged evidence the applicant would suffer a loss of about $12,500 remuneration if suspended for a period of 4 weeks. It would be incongruous for a penalty imposed by the respondent, when “satisfied that a ground for disciplinary action exists” (see section 59(3)), to substantially exceed the penalty able to be imposed by a court required to find the relevant contravention established according to the standard applicable in criminal proceedings.
82. In all the circumstances, I consider that the applicant’s casino employee licence should be suspended for one week.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/79
APPLICANT: MELVIN BARTHOLOMEUSZ
RESPONDENT: ACT GAMBLING & RACING COMMISSION
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR J PURNELL SC
RESPONDENT: MR K ARCHER
PARTY JOINED:
SOLICITORS: APPLICANT: KEN CUSH & ASSOCIATES
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 3 MAY, 4 & 5 JULY 2007 PLACE: CANBERRA
DATE OF DECISION: 13 AUGUST 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
2
0