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Hinkley v Star City Pty Ltd

Hinkley v Star City Pty Ltd

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CITATION: Hinkley v Star City Pty Ltd [2010] NSWSC 1389

HEARING DATE(S): 21 October and 26 November 2010

JUDGMENT DATE :
2 December 2010

JURISDICTION: Equity

JUDGMENT OF: Ward J

DECISION: Summons dismissed with costs

CATCHWORDS: ADMINISTRATIVE LAW - whether plaintiff entitled to natural justice in the making of a decision by the first and second defendants (as casino operator and lessee of casino premises respectively) to withdraw any license to enter the casino complex - whether legislation confers a statutory license on members of the public to enter the casino premises - whether, if plaintiff is invalidly excluded by casino operator, the second defendant as lessee could nevertheless lawfully refuse access to him as an invitee of the casino operator - whether contractual entitlement to natural justice - HELD - s 77 of the Casino Control Act 1992 does not provide a statutory codification for the rights of entry of the general public to the casino - any right by a member of the public to enter the casino is pursuant to an implied common law license - first defendant is not obliged in the exercise of its common law proprietary rights to afford natural justice when withdrawing a patron’s license to enter the casino or refusing to grant a license to enter the casino - no contractual entitlement to enter or to be afforded natural justice - REAL PROPERTY - degree of possession required to maintain an action in trespass - whether implied easement granted by second defendant in favour of first defendant and its invitees in order to permit them to traverse the non-casino premises - HELD - both defendants had sufficient degree of possession or rights to possession to maintain action in trespass - doctrine of non-derogation from grant applies only to grant of proprietary interests

LEGISLATION CITED: Casino Control Act 1992 (NSW)
Casino Control Bill, Second Reading Speech, Ms Anne Cohen, 5 March 1992

CASES CITED: Aldridge v Wright [1929] 2 KB 117
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
Baker v The Queen [1975] 1 AC 774
BBB Constructions Pty Limited v Burn [2008] NSWSC 1356
Bocardo SA v Star Energy UK Onshore Ltd [2009] EWCA Civ 579; [2009] 3 WLR 1010; [2010] Ch 100
Brunner v Greenslade [1971] Ch 993
Bundagen Co-Operative v Battle [2010] NSWSC 160
Chief Executive Officer of Customs v Tony Longo Pty Limited (2001) 52 NSWLR 458
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605
Craftsman Homes Australia Pty Limited & 3 Ors v TCN Channel Nine Pty Limited & 2 Ors [2006] NSWSC 519
Crowe v Mercy Health and Aged Care Central Queensland Ltd [2001] QSC 384
CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1
Eleftheriou v Water Board [1991] NSWCA 91
Evans & Anor v New South Wales [2008]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 1389
Decision Date: 2 December 2010

CaseChat Overview and Summary

In the case of Hinkley v Star City Pty Ltd, the plaintiff sought to challenge a decision made by the first and second defendants, who operated and leased a casino, respectively, to withdraw any license to enter the casino complex. The plaintiff argued that the defendants were required to adhere to principles of natural justice when making such a decision, particularly given that the Casino Control Act 1992 might confer a statutory license on members of the public to enter the casino premises. The plaintiff also questioned whether, if he were invalidly excluded by the casino operator, the lessee could still lawfully refuse him access as an invitee of the casino operator, and whether there existed a contractual entitlement to natural justice.

The court considered whether the Casino Control Act 1992 provided a statutory codification for the rights of entry of the general public to the casino, concluding that it did not. Any right held by a member of the public to enter the casino was pursuant to an implied common law license. The court found that the first defendant was not obliged in the exercise of its common law proprietary rights to afford natural justice when withdrawing a patron’s license to enter the casino or refusing to grant a license to enter the casino. The court further determined that there was no contractual entitlement to enter or to be afforded natural justice.

In addition, the court examined the degree of possession required to maintain an action in trespass, as well as whether an implied easement had been granted by the second defendant in favour of the first defendant and its invitees to permit them to traverse the non-casino premises. The court held that both defendants had sufficient degree of possession or rights to possession to maintain an action in trespass, and that the doctrine of non-derogation from grant applied only to the grant of proprietary interests.

The court ordered that the plaintiff's claims were dismissed, and that the defendants were not required to adhere to principles of natural justice in their decision-making process regarding entry to the casino complex. Furthermore, the court found that both defendants had sufficient degree of possession or rights to possession to maintain an action in trespass.

Orders