Court of Appeal
New South Wales
Case Title: Hinkley v Star City Pty Ltd & Anor Medium Neutral Citation: [2011] NSWCA 299 Hearing Date(s): 25 May 2011 Decision Date: 22 September 2011 Jurisdiction: Before: Giles JA at [1], Young JA at [28], Tobias AJA at [37]
Decision: (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.]Catchwords: 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.
Legislation Cited: Casino Control Act 1992
Casino, Liquor and Gaming Control Act 2007Cases Cited: Allnutt v Inglis (1810) 12 East 527; 104 ER 206;
Annetts v McCann (1990) 170 CLR 596;
Ceca Institute Pty Limited v Australian Council for Private Education and Training [2010] VSC 552; (2010) 245 FLR 86;
Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited [2010] NSWCA 190; (2010) 272 ALR 750;
Commissioner of Police v Tanos (1958) 98 CLR 383;
Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605;
Director of Public Prosecutions (NSW) v Strang [2011] NSWSC 259;
Farah Constructions v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89;
Forbes v New South Wales Trotting Club Limited (1978) 143 CLR 242;
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603;
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487;
Jones v Sky City Auckland Ltd [2004] 1 NZLR 192;
Kioa v West (1985) 159 CLR 550;
Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531;
re Minister for Immigration and Cultural Affairs, ex parte Miah [2001] HCA 57; (2001) 206 CLR 57;
Minister of Justice for the Dominion of Canada v City of Levis [1919] AC 505;
Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381;
Pacifica Shipping Ltd v Centreport Ltd [2003] 1 NZLR 433;
R v Panel on Take-overs and Mergers, ex parte Datafin plc (1987) 1 QB 815;
Sky City Auckland Ltd v Wu [2002] 3 NZLR 621;
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- Case
- [2011] NSWCA 299
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Star City Pty Ltd, as the operator of the casino, was under a legal obligation to provide natural justice to Mr. Hinkley prior to excluding him from the casino premises. This involved determining whether the exclusion was an exercise of a private right by the occupier of the premises or an exercise of statutory power that would attract procedural fairness obligations.
The Court of Appeal held that Star City Pty Ltd was not obliged to afford natural justice to Mr. Hinkley. The court reasoned that the casino operator, in its capacity as the occupier of the casino premises, had a right to control entry and exclude individuals. The court found that the exclusion was an exercise of this private right as occupier, rather than an exercise of statutory power that would necessitate adherence to the principles of natural justice. Even if the exclusion were considered an exercise of statutory power, the court found that the relevant provisions of the *Casino Control Act 1992* (NSW) did not impose such an obligation in this context.
Consequently, the Court of Appeal granted leave to appeal but dismissed the appeal, ordering Mr. Hinkley to pay Star City Pty Ltd's costs.
Orders
Orders of the court
(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.]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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: Section 78 is headed " Police powers of entry to casino ". Relevantly, s 78(2) provides as follows: Also of significance with respect to the submissions advanced on the appeal are ss 79 and 80 which, relevantly, are in the following terms: 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: 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: 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.