Hinkley v Star City Pty Ltd - [2010] NSWSC 1389

No judgment structure available for this case.

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] FCAFC 130; (2008) 168 FCR 576
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; (1979) 25 ALR 1; (1979) 53 ALJR 536
Foroughi v Star City Pty Limited [2007] FCA 1503
Georgeski v Owners Corporation SP49833 (2005) 62 NSWLR 534
Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269
Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 133 CLR 487
Jones v Swansea City Council [1989] 3 All ER 162
Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
M61/2010E (and M69/2010) v Commonwealth of Australia [2010] HCA 41
Manchester Airport plc v Dutton [2000] 1 QB 133
Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737
McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759
McGrath & Anor v Campbell & Anor [2006] NSWCA 180; 68 NSWLR 229
Newington v Windeyer (1985) 3 NSWLR 555; (1985) 58 LGRA 289; [1986] ANZ ConvR 436
Peter Harrison v Sophie Carswell [1976] 2 S.C.R. 200; [1976] 2 RCS 200
Peters v The Queen (1971) 17 D.L.R. (3d) 128
Pwllbach Colliery Co v Woodman [1915] AC 634
R v Warner (1661) 1 Keb 66
R v Wear Valley District Council [1985] 2 All ER 699
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Rose v Boxing NSW Inc (2007) NSWSC 20
South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378
Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144
Star Energy Weald Basin Limited and Anor v Bocardo SA [2010] UKSC 35
Studman v DPP (Cth) [2007] NSWCA 285
Traderight Pty Limited v Bank of Queensland; Bank of Queensland v Traderight Pty Limited; Jude Financial Services Pty Limited v Bank of Queensland; Rossmick No 1 Pty Limited v Bank of Queensland; Bank of Queensland v SME Business Assist Pty Limited; Geraghty & Palmer Pty Limited v Bank of Queensland [2010] NSWSC 139; (2010) 266 ALR 503; (2010) 238 FLR 358
Tryam Pty Ltd and Anor v Grainco Australia Ltd and Ors [2003] NSWSC 812
Wheeldon v Burrows (1879) 12 Ch D 31
Wilcox v Richardson (1997) 43 NSWLR 4
Wuta-Ofei v Danquah [1961] 1 W.L.R. 1238; [1961] 3 All E.R. 596; (1961) 105 S.J. 806
Ying v Song [2009] NSWSC 1344

TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th edn), Lawbook Company, 2009
Heydon D., ‘Limits to the Powers of Ultimate Appellate Courts’ (2006) 122 LQR 399
Mason A., ‘The Importance of Judicial Review of Administrative Actions as a Safeguard of Individual Rights’ (1994) 1 Aust J of Human Rights 3
Warren I., ‘An air of uncertainty: private security regulation in Victoria’ (1997) 2(2) Deakin Law Review 223
Wonnacott, ‘Flawed judgment’ [1999] Estates Gazette 165

PARTIES: Andrew Shane Hinkley (Plaintiff)
Star City Pty Ltd (First Defendant)
Sydney Harbour Casino Properties Pty Ltd (Second Defendant)

FILE NUMBER(S): SC 10/334935

COUNSEL: M Ashhurst SC with M Gunning (Plaintiff)
R McHugh SC with K Richardson (Defendants)

SOLICITORS: APL Lawyers Pty Ltd (Plaintiff)
Mallesons Stephen Jaques (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

WARD J

THURSDAY 2 DECEMBER 2010

10/334935 ANDREW SHANE HINKLEY V STAR CITY PTY LTD & ANOR

JUDGMENT

1 HER HONOUR: This application arises out of the issue (jointly by the casino operator of the Star City Casino and the lessee of the property on which the casino is located), on 10 September 2010, of a letter giving notice to Mr Hinkley (“the Notice”) that any express or implied licence that he might have to enter upon any part of the Star City premises was withdrawn. Mr Hinkley, who describes himself in his affidavit as a businessman, was a regular gambler at the Star City Casino from September 2004 to April 2010.

2 Star City Pty Ltd (“Star City”) is the holder of a casino licence under the Casino Control Act 1992 (NSW) (“the Act”) and the casino operator of the Star City Casino as defined in that Act. Sydney Harbour Casino Properties Pty Ltd (“Casino Properties”) is the lessee of the whole of the Star City Casino complex (under a lease from the registered proprietor of the site, the Casino Liquor and Gaming Authority) on part of which the Star City Casino (defined in s 19 of the Act) is located. (As the distinction between casino and non-casino premises assumes some relevance in determining at least one of the questions before me, to avoid confusion where I refer collectively to both parts of the overall leased premises I will use the expression “casino complex”.)

3 By an Occupational Licence Agreement dated 14 December 1994, Casino Properties granted a non-exclusive licence to Star City to occupy the whole of the lots the subject of the lease held by Casino Properties over the casino complex (other than one lot situated outside the main Star City complex site which is the subject of a light rail easement). 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 licensed premises.

4 The casino itself is located within the boundary of the overall casino complex and is accessible only via ‘non-casino’ land. This means that, to enter the casino, a patron must first pass through some part of land that is leased to Casino Properties (and licensed to Star City) but is not the subject of the casino premises themselves and therefore not an area governed by the provisions of the Act.

5 It is common ground, and the hearing of the application proceeded on this basis, that Star City is in actual possession of the casino premises (though the nature of its occupation of the non-casino premises was less clear), in the sense of Star City having not merely physical occupation but actual control or dominion over the area in question. As far as the non-casino premises are concerned, the defendants conceded, through their Senior Counsel (Mr McHugh SC) at T 5.42/T 6.7, that the occupier of the non-casino premises (over which it is necessary to traverse in order to have access to the casino premises) is Star City, though Mr McHugh noted that Casino Properties, as the lessee of the non-casino premises, was able to (and it is said from time to time did) to license persons to enter the non-casino premises for various purposes. Although the example postulated of the circumstances in which that might occur was “to run a restaurant or another business of that kind” (T 6.4), the evidence given by Mr Graeme Stevens (the Regulatory Affairs Manager for Star City), in paragraph 13 of his affidavit of 18 October 2010, as to the nature of the areas over which a casino patron must cross in order to have access to the casino did not include a restaurant as such. On Mr Stevens’ evidence, I would conclude that even if parts of the non-casino premises are operated as a restaurant (access by third party operators to which is permitted by Casino Properties, given its residual rights as lessor having given only a non-exclusive licence), there is no direct access through those areas to the casino. The only access points to the casino premises are the 17 entrances marked on the plans tendered in evidence before me.

6 Mr McHugh, in supplementary submissions on 26 November 2010, emphasised that there was no evidence (and that no concession had been made by the defendants) that any person other than Casino Properties had actual possession of any such non-casino area (ie any non-casino area through which access could be gained to the casino).

7 Senior Counsel for Mr Hinkley (Mr Ashhurst SC) nevertheless contends that the casino premises cannot be seen as an ‘island’, on the basis of what he says is an implied easement taken to be granted by Casino Properties to the patrons or invitees of Star City to have access to the casino through the non-casino premises. As I understand it, Mr Ashhurst contends that it is Star City that has power lawfully to exclude patrons from the non-casino premises (and hence the fact that Casino Properties has purported to do so cannot avail the defendants in any way). For the defendants it is said that the universe of rights to exclude Mr Hinkley rests collectively in them and that, wherever the power lies, Mr Hinkley has been effectively excluded from both the casino and non-casino premises.

8 Before turning to the terms of the Notice itself, I should add that although, for convenience, I refer to the letter of 10 September 2010 as “the Notice”, I do not by that appellation suggest that it has any more formal status than that appearing on its face, namely as a letter notifying Mr Hinkley of the withdrawal of any licence Mr Hinkley might have to enter or to remain upon the premises to which it relates (and informing him of various matters in relation to the withdrawal of the licence). Mr McHugh described the Notice, in effect, as notification that Mr Hinkley was not welcome on the premises (in other words, as an intimation in advance of the intention of the defendants, when next Mr Hinkley might choose to visit the premises, not to grant Mr Hinkley a licence to enter the premises and to treat him as a trespasser if he were then to enter the premises without permission). Mr McHugh, therefore, says that questions of the validity of the Notice having regard to notions of procedural justice (or of the severance or construction of the Notice), turning on its issue jointly by Star City and Casino Properties in relation to the respective casino/non-casino parts of the premises (over which they have different entitlements), do not arise. In that regard, as I understand it, the defendants maintain that the Notice operates as notification by each of them as to the respective parts of the premises over which each has a common law proprietary right to grant (or revoke) licences and each could stand independently of the other (so that if one does not have force for any reason that does not preclude the other from operating in accordance with its terms. )

9 The Notice, having regard to the definitions adopted in the first paragraph, was given by each of the defendants. In its terms, it appears to cover the whole of the casino complex, referring to the withdrawal of a licence to enter “any part of the Star City premises, located at 80 Pyrmont Street, Pyrmont” and the defendants contend it so operates (T16.7). There was a suggestion, during the course of argument by Mr Ashhurst that the notice covered only the casino premises – T 15.31; but that if it had a wider operation then the casino premises should include an implied easement over the non-casino premises – T 12.33. (In passing I note that there may also have been an issue as to how the Notice might apply to any areas of the non-casino premises licensed to third parties if entrance to the casino could be obtained directly through those areas but, as noted above, there was no evidence that led me to conclude that there were any such areas, particularly having regard to Mr Stevens’ affidavit, and the issue was not argued before me.)

10 The Notice must, I think, be read as being a notice by the respective defendants in respect of any area over which each individually has authority to permit (or refuse) access.

11 Mr Hinkley contends that the Notice (and similarly the decision to issue the Notice) is invalid, ultra vires and of no effect on the ground that he was denied natural justice in relation to the making by one or both of the defendants of the decision to withdraw any licence he had to enter the premises and the issue of the Notice.

12 In paragraph 20 of Mr Hinkley’s affidavit sworn 8 October 2010, Mr Hinkley asserts that if he is prevented from attending the casino (and in particular, the Sovereign Room at the casino - a room above the main gaming floor to which access is available only upon application and which is described as a room “allocated to patrons participating in high limit gambling”) he will be prevented from deriving “part” of his income from gambling and the benefits that he has enjoyed over the past 6 years (though he produced no tax returns and only made that assertion in very general terms). (I have read that part of Mr Hinkley’s affidavit simply as a submission or assertion by Mr Hinkley and I accept the force of Mr McHugh’s submission that this effectively goes no further than to say that from time to time Mr Hinkley won money from gambling at the casino.)

13 The principal basis on which it was initially contended for Mr Hinkley that the defendants had an obligation to afford him procedural fairness relied on what was said respectively by Gibbs J and by Murphy J in Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; (1979) 25 ALR 1; (1979) 53 ALJR 536). It was contended that, by reason of the public nature of the entertainment facility operated by the defendants or on premises owned or occupied by them (as the case may be) and (though this factor could only strictly apply in the case of Star City) can exercise a statutory right of exclusion under section 79 of the Act, the defendants must exercise their proprietary rights (whether as licensee or lessee of the premises) to exclude individuals from those premises in a manner which is consistent with the exercise of the statutory right of exclusion in s 79 (Forbes, at 269, per Gibbs J, as his Honour then was) and/or that the defendants’ 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 (Forbes, at 274-75 per Murphy J; Jones v Swansea City Council [1989] 3 All ER 162, at 175). It was further submitted that, Star City having already purported to exercise a statutory right under section 79 of the Act to exclude Mr Hinkley from the casino premises, the defendants could not then seek to circumvent their obligations to provide procedural fairness by giving that act another name.

14 Relevantly, the initial submissions for Mr Hinkley were predicated on the existence of a common law right (to grant or withdraw a licence to enter the casino) that the defendants were said (for various reasons) to be obliged to exercise in accordance with the rules of natural justice.

15 The alternative basis for the contention that the defendants were bound to observe the rules of natural justice (as initially put) was that of a legitimate expectation said to arise from Mr Hinkley’s status as a so-called “member” of the Sovereign Room (relying upon what was said in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 133 CLR 487, at 507-511). While said not to be the principal basis for the claimed entitlement to natural justice (that principal basis being said to arise from “the legitimate expectation that any member of the public would have to enter such entertainment areas such as casinos and [Star City’s] statutory entitlement to terminate that right”), it was submitted for Mr Hinkley that the decision to issue the Notice was not merely the exercise of a private proprietary right; it was the exercise of a power to prevent a “member” of the Sovereign Room attending that Room. (As I understand it, Mr Hinkley further contends that the arrangements pursuant to which he applied for access to the Sovereign Room and was issued a Sovereign Room card have contractual force.) Again, that submission assumed the existence of a common law right to exclude ‘members’ (or to refuse them permission to enter the casino).

16 When the matter came back before me on 26 November 2010 (on my instigation, in the circumstances I relate later in these reasons) for further submissions, Mr Hinkley’s principal claim to an entitlement to natural justice seemed to be put on a different basis, namely that Star City has no common law right to grant a licence to enter the casino (and thus no common law right to exclude patrons from the casino). Hence, it was put not as a question whether it had an obligation to exercise such a right in a particular manner – rather, it was said that that common law right had been abrogated.

17 Mr Ashhurst submits that s 77 of the Act operates to codify the right of Star City as the casino operator to regulate entry into the casino. (In fairness, on my review of the transcript, he had previously submitted that there was a “statutory code which now describes the entitlement of a member of the public to enter the casino” T 9.1) but had disavowed the proposition that the licence Mr Hinkley had to enter the casino was a statutory licence (T 18.11). As I understand it, the distinction between the position adopted initially and that when the matter was before me most recently, is that whereas it was initially said that the statutory ‘code’ made the cancellation of the licence in effect the carrying out of a public right, (thus focussing on the public nature of the power to terminate the licence), what is now put is that the effect of s 77 is that the only entitlement to enter onto the casino premises is a statutory entitlement. Hence it is said that the only right to enter is pursuant to a statutory licence (albeit, it would seem, one that the statute recognises is or is to be granted by the casino operator). Therefore, it is said that whatever the steps that have been taken to terminate a common law licence is irrelevant (since entry to the casino could not be dependent on such an entitlement).

18 It is not disputed that Casino Properties (which is the lessee of, and has licensed to Star City, both the casino and non-casino premises) has no statutory powers in relation to the operation of the casino. Thus, in issuing the Notice, Casino Properties could only have been exercising a private proprietary right.

19 Although, as noted above, Mr Hinkley has asserted that part of his income was derived from gambling at the casino, I was informed by Mr Ashhurst during the hearing of the application on 21 October 2010 (at T 29.22) that Mr Hinkley did not press a claim to procedural fairness on the basis that his livelihood depended upon the express or implied licence to enter or remain upon the Casino Premises and to derive an income therefrom (an argument that had been foreshadowed in submissions relying upon R v Wear Valley District Council [1985] 2 All ER 699 and Forbes, at 264 and [274]). (That said, Mr Ashhurst nevertheless pointed to what was said in Wear Valley (at 702(e)-(j), 703(h)-(j) and 704(e)) for the proposition that if there is a “public law element” (there, in the decision whether to permit the person to trade) then procedural fairness must be applied. It is said that the Exclusion Order, followed by the issuance of the Notice clearly had the necessary “public law element”. On this point, Mr McHugh noted that in Wear Valley the relevant decision was one of a statutory authority, thus permitting it to be distinguished from the present case.)

20 Mr Hinkley seeks declaratory and other relief, including orders that the decision to issue the Notice, and the Notice itself, be set aside. He does not seek any damages for breach of a contractual obligation to permit him entry to the Sovereign Room or the casino generally.

21 While it is not conceded by the defendants that, if (which they deny) there were an obligation on their part to afford Mr Hinkley procedural fairness in relation to the issue of the Notice, they had failed to do so, the case was conducted before me broadly on the basis of the defendants’ denial that any such obligation had arisen in relation to the decisions made by each of them to withdraw any licence Mr Hinkley may have or have had or in relation to the issue of the Notice itself. (It was not suggested, for example, that Mr Hinkley had been given an opportunity to be heard by Star City in relation to the grounds for withdrawal of any licence to enter the premises nor that he had been informed as to what those grounds were.)

22 It is said that each of the defendants, when issuing the Notice, was exercising a common law proprietary right not susceptible to judicial review (and that Mr Hinkley had no contractual entitlement to access to the Sovereign Room or to natural justice in relation to a decision to exclude him from the casino or the Sovereign Room itself).

23 The defendants further submit that even if Mr Hinkley could establish a juridical basis for the court's intervention in this case (which the defendants say he cannot), there is no utility in the relief sought on the basis that, in the absence of a free-standing implied licence (or, I might add, a statutory licence of the kind now claimed) to enter and remain on the premises, Star City has the right to refuse Mr Hinkley entry to the casino every time he approaches an entrance to the casino. During the course of argument I also canvassed whether the relief sought would be futile if (irrespective of the position of Star City) it was open to Casino Properties to deny access to the non-casino premises and hence effectively frustrate Mr Hinkley’s ability to reach the point at which he might physically be able to gain access to the casino. This gave rise to debate as to the significance of the notice being a joint notice (Mr Ashurst submitting in effect that if any part of the Notice was invalid for failing to observe natural justice, then the Notice would fail as a whole) and as to the ability of Casino Properties to exclude an invitee of Star City, which I address in due course in these reasons.

24 In summary, Mr Ashhurst’s response to the question of what flows from the joint issuance of the Notice is multi-faceted (see T 5.33-6.34; 26/11/2010). As I understand it, Mr Ashhurst contends that if Star City was obliged to afford, and had denied, Mr Hinkley natural justice, then the Notice must fail as against Star City and that, viz a viz, Casino Properties there is no basis for it to exclude Mr Hinkley - first, because there was an implied easement granted to permit invitees of Star City to enter the non-casino premises and Casino Properties could not derogate from that grant; secondly, on the basis that Casino Properties itself has no common law right to exclude patrons from access (actual possession having been conceded to lie in Star City, at the least by the implied grant of an easement over its land in favour of the casino premises and therefore Casino Properties does not have actual exclusive control of any part of the premises); and, thirdly, issue was taken with the fact that the Notice was not limited to the non-casino areas (and hence if the Notice in relation to the casino premises failed, the whole Notice would fail), though little if any weight was put on this last issue.

25 The matter came before me on an ex parte basis in the duty judge list on 12 October 2010, on which occasion I gave leave for short service of the summons. The summons was made returnable before me on 14 October 2010 on Mr Hinkley’s application for interlocutory relief. On that occasion, rather than proceeding to hear the interlocutory application, the parties agreed to proceed by way of an early final hearing of the substantive application and directions were made accordingly. I heard the matter on 21 October 2010 (unfortunately with some interruption to accommodate urgent matters in the duty list) and reserved my judgment.

26 I subsequently invited further submissions from the parties on an issue which had not been the subject of particular focus, at least by me, during the debate before me but that I considered could be said to be raised by some of the authorities on which reliance had been placed on other issues in the proceedings – that being a question as to whether, if Star City, as a licensee, had no standing at common law to eject persons from the casino, any notice purporting to have that effect would necessarily need to be predicated on a power under s 79 of the Act. (I saw this as an issue potentially going to the construction to be placed on the Notice.)

27 As I understood the way in which the issues had then been framed in these proceedings, the parties had assumed that Star City did have a common law proprietary right to exclude (or perhaps more precisely, not to admit) persons from (or to) the casino and thus the issue was as to whether, in issuing the Notice, Star City was exercising a statutory power of exclusion or right of a public nature, on the one hand, or was exercising a common law proprietary right on the other hand (and, if the latter, whether such right was one which must be exercised in accordance with its statutory powers of exclusion or is otherwise a public power such that the obligation to afford procedural fairness would arise). In that context, a distinction was, as I understood it, being drawn between a statutory power of exclusion and a common law proprietary right to exclude patrons or to revoke any implied licence pursuant to which patrons had access to the casino. To the extent that reference had been made in a general context to Star City’s “occupation” of the premises, it seemed to me that the extent of Star City’s power as licensee to exclude patrons from the casino might have a bearing on the construction of the Notice that it had in fact issued. Hence, as a matter of procedural fairness I considered that the parties should be given the opportunity to address the matter directly.

28 Further written submissions were served by the parties and addressed orally in court on 26 November 2010. On that occasion both parties confirmed that it was common ground that Star City had actual possession of the casino premises (T 4.12-.18) in the sense of exercising control or dominion over those premises (and hence would, subject to the statutory licence argument now raised, have had the right at common law to revoke any licence Mr Hinkley had in respect of, and to exclude Mr Hinkley from, the casino premises – T 4.27), though the position in relation to the non-casino premises was not so much a matter of common ground.

29 However, the complexion of the case changed somewhat at that point as it was only then that Mr Hinkley’s (now principal) contention as to the codifying effect of the relevant statutory provision was clearly articulated with focus on the alleged statutory codification of a right to enter the casino. Submissions on that point were then made. Mr Ashhurst accepted, nevertheless, that if the common law right (to grant and/or revoke a licence to enter the casino premises) had not been abrogated by statute, then the answer to the question I had posed as to the construction of the Notice would not arise (T 4.33-.43).

Issues

30 The first (or anterior as it was so-called) question ultimately posed for determination is whether Star City has a separate independent common law right to grant and/or refuse access to the casino (or, in other words, whether Mr Hinkley, when entering onto the casino premises, does so pursuant to a common law licence or a statutory licence).

31 Once that issue is determined, the central question is then whether one or both of the defendants owed an obligation (whether arising from the nature of the power being exercised when the Notice was issued or as a matter of contract) to afford Mr Hinkley procedural fairness when withdrawing the licence (be that a statutory licence or an implied common law licence) that he had as a member of the public (and/or any statutory or express or implied common law licence that he had as a ‘member’ of the Sovereign Room) to enter the Star City premises (both casino and non-casino land) (or notifying of any intention not to grant any future such licence), which has had the practical effect of excluding him from access to the casino.

32 The defendants approached that question by asking whether Mr Hinkley is entitled to invoke the court’s powers of judicial review in relation to the decisions made by one or both of the defendants. Mr McHugh thus pointed at the outset to the need for Mr Hinkley to identify the juridical basis for any such review – such a basis being only, it is said, where there is an exercise of statutory or prerogative power or where there is the exercise of a contractual right which imports such a duty (though, in the latter case, any failure to afford natural justice would give no right of judicial review as such, but would simply provide a basis on which a claim for breach of contract might lie). Mr Ashhurst’s position on that point, as I understand it, is that a juridical basis for judicial review also arises where the power being exercised is a ‘public’ power but in any event he now primarily rests the application for judicial review on the power in question being a power to revoke or terminate a statutory licence.

33 After pointing to the statement by Mason J (as his Honour then was) in Kioa v West (1985) 159 CLR 550, at 584, and his Honour’s comments in South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378, at 386 to the effect that the obligation to accord natural justice or procedural fairness stems from the common law and is not something which is in the gift of statute law (and referring to his Honour’s extra-curial comments to that effect in ‘The Importance of Judicial Review of Administrative Actions as a Safeguard of Individual Rights’ (1994) 1 Aust J of Human Rights 3, at 4), Mr Ashhurst, submitted that Mr McHugh’s formulation of the issues for determination in the above manner obscured the following critical sub-issues:

[Mr Ashhurst has consistently said that this question should be answered in the negative but now says further that Star City has no private property rights capable of being exercised in this regard.]

(ii) if Star City was exercising a private property right when it issued the Notice, was it nevertheless required to exercise that right in accordance with the provisions of the Act and to afford Mr Hinkley procedural fairness? [This arises only if the statutory codification point is determined against Mr Hinkley.]

(iii) if Star City was exercising a private property right and was not required to exercise that right in accordance with the provisions of the Act, was Mr Hinkley nevertheless entitled to procedural fairness on the basis of his “membership” of the Sovereign Room? [Again, this arises only if the statutory codification point is determined against Mr Hinkley. I note also in this context that it is no longer said that such an entitlement arose because the decision could impact on his income from gambling] ; and

34 When the matter came back before me last week, Mr Ashhurst reformulated the issues for determination in three propositions, which I understood to be as follows: first, whether the right to enter the casino is a statutory right under s 77 of the Act; secondly, if it is not, then whether Star City is nevertheless obliged to exercise the common law proprietary right (that on that hypothesis it is conceded it would have) to grant a licence to enter the casino or to withdraw or decide not to grant a licence to enter the casino 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 right 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 legally to prevent him from having access to the casino premises.

35 As to the last of those propositions, it was accepted by Mr Ashhurst that what this last issue goes to is the question of futility of the relief sought – T 18.2; 26/10/2010. It was accepted by both parties that if Star City has not legally terminated a licence that Mr Hinkley has to enter the casino premises then, whatever the position as between Casino Properties and Star City, the relevant question is whether Casino Properties could bring an action in trespass against an invitee of its licensee (though not surprisingly they proffer different answers to that question).

Summary

36 In summary, for the reasons set out below, I am of the view that s 77 does not provide a statutory codification for the rights of entry of the general public to the casino and hence the principal basis on which Mr Hinkley now contends he is entitled to natural justice fails.

37 In answering the propositions as reformulated by Mr Ashhurst, I am of the opinion that:

first , 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;

secondly , 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 a licence to enter the casino) 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 of exclusion under s 79 of the Act); and

thirdly

State of New South Wales v Koumdjiev

Koumdjiev

38 For completeness, although the following will to some extent be bound up in the conclusions expressed already, I answer the sub-issues identified by Mr Ashhurst when the case was first before me as follows:

(i) Star City (and also, for that matter, Casino Properties) was exercising a private property right when it issued Mr Hinkley with the Notice;

(ii) Star City was not required, in the exercise of that right, to afford Mr Hinkley procedural fairness (as it might, though this is not conceded, have been had it issued an Exclusion Order under s 79 of the Act) (and nor was Casino Properties, as was conceded by Mr Ashhurst T 18.15; 26/11/2010);

(iii) Mr Hinkley was not entitled, by reason of his status as a (Diamond) Sovereign Room cardholder to procedural fairness in the making of a decision to withdraw any implied licence he had to enter the casino exclude him from access to the Sovereign Room; and

non-casino

39 While I acknowledge the dicta of Murphy J to the contrary in Forbes, I think the weight of dicta in the High Court is against the proposition that there is an obligation on a party in the position of Star City to afford natural justice in relation to the exercise of its common law proprietary rights. I find that there is no basis for judicial review of the decision by Star City and Casino Properties to issue the Notice and no contractual or other obligation on either of the defendants to afford Mr Hinkley procedural fairness. The Summons should therefore be dismissed with costs.

Casino/Sovereign Room location

40 I have referred above to the physical location of the casino within the Star City casino complex and to the fact that it is accessible only through the non-casino premises. Mr Stevens deposed that there are 17 entrances to the casino, each of which is located on non-casino land and at each of which there is a notice setting out the terms of entry to the casino (the “Terms of Entry notice”). Mr Stevens further deposed that at each of these entrances (including the only three from which access to the Sovereign Room can be gained) there is at least one Star City employee in attendance at all times when the entrance is open. The Terms of Entry notice includes the following statements, which draw the patron’s attention to the discretionary (and revocable) nature of the right to enter and remain on the casino premises:

Star City has the right to refuse entry to any person, including those considered to be improperly dressed or behaving in an inappropriate manner.

41 On the floor above the main gaming floor is the private gambling area known as The Sovereign Room (but formerly known as the Endeavour Room). This is a private gaming room catering to “high-end customers”. Access to the Sovereign Room is available only to those who complete an application form. In paragraph 28 of Mr Stevens’ affidavit (that I have read solely as to his understanding of Star City policy, with which, given his employment history and responsibilities, I would infer he should be familiar) is that it is Star City policy that a staff member must in certain circumstances refuse entry to the Sovereign Room of a person who has a Sovereign customer card. Thus it would seem that, even after completion and acceptance (by the issuance of a card) of an application in relation to access to the Sovereign Room, Star City reserves to itself a discretion whether to permit or to refuse entry to the Sovereign Room (each patron or customer being required to show identification whenever arriving at the reception area outside the Sovereign Room). (Whether Star City policy goes so far as to permit arbitrary refusal of entry to the Sovereign Room of Sovereign cardholders was not a matter explained in Mr Stevens’ affidavit.)

Mr Hinkley’s patronage of the Casino/Sovereign Room

42 Mr Hinkley, in his affidavit, has deposed to the circumstances in which he commenced attending the casino in September 2004 (moving from Melbourne to Sydney about one month later) and his application for ‘membership’ of the Sovereign Room (on which, as I understand it, he relies both for the assertion that he has a contractual right of entry and for the expectation that he would be afforded natural justice and/or had a right to natural justice in relation to any decision to refuse him access to the Sovereign Room within the casino).

43 Insofar as Mr Hinkley has referred to his “membership” of the Sovereign Room, and has described himself as a “member” of that Room, objection was taken to this being read other than as Mr Hinkley’s understanding of the position (and I only read it on that basis). Mr Hinkley did depose to a conversation with a Star City receptionist in which he says the word “member” was used but I doubt that much weight can be placed on what seems to have been a casual conversation in which attention to the precise words being used might not be expected. I would place more weight on the formal documentation by which the alleged “membership” was acquired.

44 It is said by the defendants, and this is supported by the documents before me, that all Mr Hinkley could be said to be a “member” of is the Star City customer loyalty or patron rewards programme (the Total Star Rewards Programme), the terms and conditions of which do not confer any licence to enter the casino (or the non-casino) premises, and that he is not a “member” of the Sovereign Room nor is there any “membership” of the Room as such. Any contractual right of entry to the Sovereign Room is denied.

45 The terms and conditions of the Total Star Rewards programme, in force at the time of Mr Hinkley’s application to join the programme, were exhibited at tab 8 of the exhibits to Mr Stevens’ affidavit. Mr Hinkley participated in the programme from January 2004. The rewards available under that programme were based on usage of slot machines and/or table games, according to the application form that Mr Hinkley signed.

46 The terms and conditions of the programme included the following:

1.12 [the benefits, entitlements and rewards] are a courtesy extended to Members at the sole discretion of Star City and not an automatic entitlement.

6.1 If …

has had their licence to enter or remain in the casino withdrawn or been excluded

Star City reserves the right in its sole and absolute discretion to immediately terminate [sic] and/or suspend (at Star City’s option) the relevant Member’s membership of Total Star Rewards. (my emphasis)

47 The rewards programme terms and conditions therefore draw a distinction between withdrawal of a licence to enter or remain in the casino and exclusion from the casino.

48 Mr Hinkley applied, on 5 August 2004, for access to the Sovereign Room (then known as the Endeavour Room). Mr Hinkley’s affidavit deposed to his understanding as to “membership” of the Sovereign Room and that it conferred benefits (apparently based on the member’s level of gambling or patronage of the casino) such as discounted or complimentary services within the casino, airfare reimbursements and free hotel accommodation. (On the basis of the material exhibited to Mr Stevens’ affidavit it would seem that those benefits are in fact obtained through the patron rewards programme and not directly as a result of access to the Sovereign Room, at least insofar as can be discerned from a comparison of the respective terms and conditions of each.)

49 Exhibited at tab 9 of the exhibits to Mr Stevens’ affidavit is a copy of Mr Hinkley’s application for Endeavour Room Access. This is relied on by Mr Ashhurst as the primary evidence of the terms of the alleged contract. That application form states:

pre-requisite for access

Completion of this application is not to be taken as a guarantee of access

50 The use of the word “pre-requisite” seems to me to imply that this is a condition of access but does not mean that access will necessarily be granted on any occasion or at all (hence the express acknowledgment that the satisfaction of this pre-requisite is not a “guarantee” of access). In other words, whatever other conditions might apply to entry in respect of the Sovereign Room, completion of the form (and, presumably, its acceptance by Star City) is an essential first step.

51 The form also states that “it is a condition of this application that you acknowledge and understand the Terms and Conditions of Endeavour Room access”. (I interpose here to note that it is solely the giving of this acknowledgement that is relied upon as being the relevant consideration to support the alleged contract between Mr Hinkley and Star City. No fee is payable in connection with the application. Nor is there any express covenant on the part of the person signing the application form to observe the terms and conditions of access to the Sovereign Room.)

52 The Terms and Conditions applying to access to the Room included the following:

53 Mr Ashhurst points to clause 6 as an implicit acknowledgement that there is a right of access (ie, by cardholders, to use the neutral term) to the room (on the basis that the Terms expressly reserve a right to ask a patron (or guest) to leave but do not expressly reserve the right to exclude entry). It is submitted that there must be an implied right of access because, if that were not the case, there would be ‘nothing to lose’ and hence no need to reserve the right to ask Sovereign Room cardholders to leave. It is thus submitted that this clause implicitly creates the legitimate expectation that there is a right of access.

54 I do not consider that the reservation by Star City of a right to require Sovereign cardholders or their guests to leave the Sovereign Room implies any entitlement to enter the Room (particularly when there is a Terms of Entry notice outside the Sovereign Room which seems itself to reserve a discretion in relation to entry and which would not be necessary if all Sovereign Room cardholders already had a right of entry). I read clause 6 as no more than drawing to the attention of the person applying for the Sovereign Room card that if access (ie an implied licence to enter) is granted on any particular occasion, then it remains revocable in the discretion of Star City. Furthermore, any expectation engendered by the issue of a Sovereign card would arguably be no more than that if access is permitted to the casino proper (and the usual requirements in terms of dress, behaviour or the like are met) then there would be admission to the Sovereign Room – ie it seems to me that the issue of the card does not engender any expectation as to admission to the casino premises as a whole).

55 (I interpose also to note that if Mr Ashhurst’s further submission is correct, and there is a statutory licence or statutory right of access to the casino, then at most the expectation to which he contends the Sovereign Room cardholder status gives rise can only be one referable to the Sovereign Room itself, since there would already be a statutory licence to enter the casino proper.)

56 Mr Hinkley’s application for Endeavour Room access was accepted, at least in the sense that he was issued a Sovereign card. He was subsequently permitted access on what appear (at least from the records of his gambling produced by the defendants for the 2009 year) to have been several occasions to the Sovereign Room. Mr Hinkley says he became a “member” from October 2004. In evidence (Exhibit 4) was Mr Hinkley’s Sovereign Diamond card (which I note contains no description of Mr Hinkley as member). In his affidavit Mr Hinkley deposed to the fact that his “membership” of the Sovereign Room was successively upgraded (this being based, according to Mr Stevens, on the level and frequency of the customer’s play) to the highest (Diamond) level at the date of its issue (so that as at April 2010 he held a Diamond Sovereign Card). Mr Stevens’ affidavit on the other hand refers to patrons of the Room as “customers” and says that the Diamond Sovereign Card is the second highest type of Sovereign customer card. (Nothing, however, turns on the relative status of Mr Hinkley’s customer card.)

57 Mr Ashhurst relies on Mr Hinkley’s “membership” of the Sovereign Room (irrespective of whether this was pursuant to a contract) as giving rise to a legitimate expectation of access to the casino/Sovereign Room and says that the defendants cannot rely on the Terms of Entry notices as removing any such expectation. (Insofar as, in supplementary submissions, it was suggested that the defendants were relying on the Terms of Entry notices as establishing that there was no implied common law licence, I had understood (and Mr McHugh confirmed) the defendants’ submission to be no more than that the Terms of Entry notice meant that someone in Mr Hinkley’s position (or, indeed, any member of the public) would not have any legitimate expectation that he or she would be permitted entry to the casino premises on any particular occasion and hence that there could not have been understood to be any free-standing licence to enter the casino.)

58 The defendants contend that the Diamond Sovereign Room card issued to Mr Hinkley did not confer any right (contractual or otherwise) to enter the casino or the Sovereign Room and did not give rise to any expectation of access thereto.

Status of entry to the casino

59 Leaving aside for the moment the question whether Mr Hinkley’s completion of the application for access to the Sovereign Room (and Star City’s apparent acceptance or approval of that application by the issue of a Sovereign Room card) gave rise to any contractual right of access to the Sovereign Room or to the casino in general, it was not initially disputed that entrance by a member of the public to the casino premises involved the exercise of an implied common law licence to enter onto the non-casino premises (that implied licence arising from the fact that this area is open to the public) (though with the proviso noted by Mr McHugh that the entry not be made in order to commit a criminal offence or tort against the occupier). As I understand the analysis now put forward for Mr Hinkley, it is that, at the point of entry to the non-casino premises, what the patron is exercising is a right under an implied easement taken to have been granted by Casino Properties to cross the non-casino premises in order to exercise his or her statutory entitlement to enter the casino.

60 What is then disputed is the characterisation of what next happens when a person enters the casino. The defendants contend that when a patron traverses the non-casino premises and (if access is not refused by the Star City staff in attendance at the particular casino entrance) enters the casino premises, then there is the grant of a revocable common law licence to enter and remain in the casino for the duration of the particular visit (and that the same legal analysis applies when a patron is permitted access to the Sovereign Room at the casino). On Mr Ashhurst’s analysis, however, at the point of entry to the casino premises a member of the public is exercising a statutory licence to enter the casino. (Logically, it would seem on Mr Hinkley’s case that at this point any decision to exclude or not to permit access to a member of the public is one to which the obligations of natural justice apply, since the patron already has a statutory licence to enter thus it would apply to any on the spot decision.)

61 Mr McHugh emphasises that each time a member of the public (including Mr Hinkley) visits the non-casino or casino premises (including the Sovereign Room), and is permitted entry, there is the grant of a new licence. (It seems to me that that must be the case unless s 77 operates to confer a statutory licence on members of the public.) It is submitted by the defendants that Mr Hinkley has never had any free-standing or ongoing licence to enter into or remain in the casino (and, as I understand it, that there cannot be any legitimate expectation that he would on any occasion be permitted to do so, 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). The revocable nature of the implied licence, and the contention that there is a fresh licence each time a patron arrives at and is admitted entry to the casino, are matters relied upon by the defendants to gainsay the suggestion that Mr Hinkley (or presumably anyone in his position) could have or have had any legitimate expectation to be permitted access to the casino on any particular occasion.

62 Initially, Mr Ashhurst submitted that the defendants’ analysis of the common law implied revocable notice (pursuant to which members of the public are permitted to enter the casino) was irrelevant to the issues at hand - on the basis that the relevant issue is not whether entry to the casino depends upon the grant of an implied licence but upon whether any such licence was withdrawn in conformity with the rules of natural justice. As I understand the later contentions put for Mr Hinkley, what is now submitted is that there is no common law implied licence pursuant to which anyone obtains entry to the casino – rather, in all cases, entry is pursuant to a statutory licence derived from s 77 of the Act (in which case, presumably, the relevant expectation arising from that licence could only be an expectation that such a licence would be honoured by the casino operator or, perhaps, that it not be withdrawn otherwise than in accordance with the statutory procedure for exclusion).

Statutory provisions

63 Section 77 of the Act, headed “Right of entry to casino”, provides that:

,

64 Sub-section 77(2) and s 78 of the Act in their terms restrict the ability of the casino operator, in certain circumstances, to refuse access to or remove from the casino particular persons (namely inspectors and police officers), by providing a right of entry to those persons as follows:

77(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. (my emphasis)

65 Section 79 of the Act then deals with the right of Star City, as casino operator, to prohibit a person from entering or remaining in the casino by the giving of an order referred to in s 80 as an “exclusion order”. (There is no similar right on the part of Casino Properties as lessee.)

66 As Mr McHugh points out, there are a number of serious consequences which flow from the issue of such an order. Section 84 of the Act makes it a criminal offence for a person the subject of a non-voluntary exclusion order to enter or remain in the casino. It is also a criminal offence for the person for the time being in charge of the casino, an agent of the casino operator or a casino employee to fail to remove a person the subject of an exclusion order including a voluntary exclusion order as soon as practicable after that excluded person’s presence becomes known to the said casino person (s 85(2) of the Act). There are statutory obligations on the casino operator in relation to matters such as notification to the Authority of those persons the subject of the exclusion order (s 83). The Authority has the power to review the making of an order (unless it was given by the Authority or at the direction of the Commissioner of Police) (s 80). In the exercise of such a power the Authority is not required to observe the rules of natural justice (s 141(4)).

67 In terms of the broad consequences of an exclusion order, Mr McHugh also points to the fact that the issue of an exclusion order under s 79 of the Act in New South Wales may have ramifications in relation to the right of an excluded person to enter a casino in another state in Australia (referring by way of example to ss 78AA and 78AB of the Casino Control Act 1991 (Vic)) and that s 85 of the Act operates to provide some statutory immunity in relation to the removal (in good faith) from the casino of persons the subject of an exclusion order.

Steps to exclude Mr Hinkley and/or withdraw his licence to enter and remain upon the casino

68 I turn then to the steps that were taken in the present case first to exclude Mr Hinkley from the casino and then to withdraw any (common law) licence he has or had to enter and remain on the casino premises.

69 On 23 April 2010, Star City issued an Exclusion Order in relation to Mr Hinkley pursuant to s 79 of the Act. The notice was served on Mr Hinkley under cover of a letter dated 27 April 2010.

70 The Exclusion Order was couched as a formal document, headed as such and identified on its face as being issued pursuant to s 79 of the Act, including the allocation of a specified Exclusion Number (7215). In its terms it prohibited Mr Hinkley from “entering or remaining on the premises of Star City (The Casino)” while the Order remained in force. It was signed by someone designated as an authorised person under a specific licence number and witnessed by another person with a specific licence number. It specified not only the date but time of issue. (I was taken through the provisions requiring official notification and record keeping in relation to the making of such orders.) The letter, under cover of which the Order was served, was signed by the Security Manager of the Star City Security Department (some 4 days after the making of the Order, though the delay in this regard was not explained).

71 No reasons were provided for the issue of the Exclusion Order in respect of Mr Hinkley, other than the statement made in the covering letter that it was issued “in respect to your conduct relating to illegal and undesirable activity on the 23^rd April January 2010 [sic]”. There is no suggestion that Mr Hinkley was given an opportunity to be heard in relation to its issue.

72 The Exclusion Order drew Mr Hinkley’s attention to his right under s 80 of the Act to apply in writing for a review of the Order and noted the potential criminal consequences of non-compliance with the Order (conviction of a criminal offence with a maximum penalty under s 84 of the Act of $5,500 or prison for 12 months or both).

73 By letter dated 18 May 2010 from Mr Hinkley’s solicitors, a review by the Authority of the decision to issue the Exclusion Order was requested. The attention of the Authority was drawn to the fact that the conduct and allegations referred to in the Exclusion Order had not been brought to Mr Hinkley’s attention and it was asserted that the casino had not followed due process and had not observed the rules of natural justice.

74 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 defendants 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 that regard I note, however, that Mr Ashhurst submitted that, although Rose v Boxing NSW Inc (2007) NSWSC 20 was authority for the proposition that if there was a right of review then there would not be an obligation to provide procedural fairness, this was only the case if the reviewing authority had such an obligation and that in the instant case the reviewing authority did not.)

75 In the course of its review of the decision to issue the Exclusion Order, the Authority sought Mr Hinkley’s response to various questions relating to conduct involving the ‘cashing’ of a named casino cocktail waitress’ tips in the form of casino gaming chips. Mr Hinkley’s response, via his lawyers, among other things admitted that he had cashed chips for the named cocktail waitress on three or four occasions. (Whether or not one could infer from this that the reason for Star City’s decision to exclude Mr Hinkley related at least in part to alleged conduct of that kind is moot since the defendants, though they did not concede the point, did not contend before me that, if natural justice was required to be observed, they had afforded it.)

76 By letter dated 29 July 2010, the Director, Casino and Authority Operations advised that the Authority had given careful consideration to the submissions made for Mr Hinkley and that the Authority had decided to let the Exclusion Order stand (though noting that it remained open to the casino operator to review the order).

77 Mr Hinkley then requested that Star City revoke the Exclusion Order. By letter of 23 September 2010, Star City in fact did so (noting that the exercise of the statutory power of revocation was independent of any exercise by the defendants of their proprietary right to withdraw any licence that Mr Hinkley might have to enter or remain upon the Star City premises and that this letter was not an invitation for Mr Hinkley to enter the premises).

78 By then, however, Star City and Casino Properties had jointly given the Notice the subject of these proceedings.

79 The Notice, issued on 10 September 2010, was expressed in its terms to be an “exercise of the proprietary rights” of the two issuing entities and very clearly disavowed the exercise of the statutory power of Star City. It was very different in form and content from the Exclusion Order.

80 The Notice was in the form of a letter (served under cover of a letter from the defendants’ lawyers, presumably because Mr Hinkley was by then represented by lawyers who had contested the validity of the Exclusion Order). It ascribed no Exclusion Number as such and was not precise as to the time of issue. The signatory was identified by name and position (he being the General Counsel of one or both of the defendants), not by licence number, and there was no witness to his signature. The Notice did not speak in terms of ‘Exclusion’ or refer to “Excluded Persons” and, significantly, the Notice itself referred to the then subsisting Exclusion Order (and thus seemingly was seen as having a separate, albeit perhaps overlapping, operation).

81 In its terms, the Notice said:

Dear Mr Hinkley

Re: 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.

Casino Control Act 1992

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.

Yours sincerely

General Counsel

82 The covering letter from the defendants’ solicitors, under which the Notice was sent, asserted that the rights exercised in the issue of the Notice were independent of the power under s 79 and denied any obligation to observe the principles of natural justice. Further, the letter expressly adverted to the possibility of legal proceedings in relation to the Exclusion Order and opined that they would be futile given the withdrawal of the licence. The letter stated that Star City did not concede that it had any obligation to observe the principles of natural justice in relation to the issue of an Exclusion Order or that it had failed to observe those principles in issuing the Exclusion Order 7215.

83 The Notice was not couched in terms of a ‘prohibition’ on entry, although it was noted that the effect of it was that Mr Hinkley must not enter the premises and that if he did so he would be trespassing.

84 The defendants’ position is that Mr Hinkley had no free-standing licence to enter the casino and that Star City reserved the right not to grant Mr Hinkley (or any other casino patron) a licence and to refuse him entry for any reason every time he approached an entrance to the casino. The effect of the Notice, it was said, was simply to prevent any licence from coming into existence by implication when Mr Hinkley next sought to enter the casino or non-casino premises.

85 When the matter was first argued, Mr Ashhurst accepted that the Notice would be effective to revoke any express or implied licence granted by Star City but submitted that the issue was not whether Mr Hinkley had been effectively excluded from the casino but, rather, whether Mr Hinkley was denied procedural fairness in that regard. (The later submissions for Mr Hinkley seem to resile somewhat from that position and suggest, instead, that there was nothing in existence for the Notice to revoke – since Mr Hinkley did not have a common law licence at all but rather a statutory licence revocable only through the s 79 exclusion procedure.)

Issues

(a) Does s 77 operate as a statutory codification of the grant of licences?

86 Section 77 of the Act, as set out above, is the critical provision on which Mr Ashhurst relies for the proposition now put that members of the public (including Mr Hinkley) have a statutory licence to enter the casino. Initially, any such suggestion was expressly disavowed (T 18.11) and the argument focussed on the nature of the power to revoke or withdraw what seemed to be acknowledged to be a common law licence (if not, as per the alternative contention, a contractual licence arising out of the Sovereign Room cardholder status).

87 What is, however, now said is that the right of Mr Hinkley to enter onto the casino derives only from s 77 of the Act. It is said that this is a statutory right not a common law right (para 5, Plaintiff’s Further Submissions dated 26 November 2010). Mr Ashhurst acknowledges that, in the absence of s 77, Mr Hinkley would have had the common law implied right to enter onto the casino as described in Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, at 6-7 and that Star City would have been at liberty to cancel that implied licence and to eject him (subject only, as I apprehend it, to the argument based on what was said by Murphy J in Forbes or any contractual limitation on that right). However, it is said that the Act has removed that implied licence and that Star City thus cannot revoke an implied common law licence to enter the casino that no longer exists.

88 Mr Ashhurst contends that the intent of the Act is to codify the entry and exclusion of persons from the casino and that this construction is confirmed by s 78, which provides an exception to s 77 for the police, and s79, which dictates who may exclude persons from the casino and by what means. It is said that there is a clear statutory intention exhibited in s 77 to abrogate any common law right that Mr Hinkley or Star City may otherwise have had in respect of the casino premises.

89 Pausing there, as a matter of statutory construction, if s 77(1) had itself conferred a general statutory licence or right of entry in relation to the casino premises, then there would seem to me to have been no need separately to have dealt in s 77(2) with a right of entry for inspectors. They would, on Mr Ashhurst’s construction of the section, already have a statutory licence to enter and the only question to deal with would be what separate provision was to apply for the revocation of that licence in their particular case. (I accept that s 78(2) is somewhat different insofar as this, in its terms, authorises entry onto areas of the casino “to which the public does not have access”.) Thus, insofar as s 77(2) appears directly to confer on inspectors a statutory licence to inspectors to enter and remain on the casino premises, this seems inconsistent with s 77(1) conferring a general statutory licence. Further, as Mr McHugh points out, the wording of ss 77(2) and 78(2) in which a statutory licence does appear to be granted, is markedly different from that employed in s 77(1). The passive voice in the latter, when contrasted with the active voice in the former two provisions, supports the construction of s 77(1) as not conferring any right of access but simply being a statutory recognition of the basis on which the casino operator may permit access to the casino premises (or, as Mr McHugh submits, being a limitation on the nature of the right of entry that the casino operator may, or may not, choose to grant).

90 Mr Ashhurst submits that s 77 should be read as providing that a person’s right to enter is only pursuant to a statutory licence granted by the casino operator. One difficulty with such a construction is that the section does not speak in terms of a licence being granted under the Act nor does it refer to the licence as a statutory licence. There is no express conferral of a ‘statutory’ licence to members of the public. Had Parliament wished to confer a statutory licence on persons to enter the casino there would have been no need for the interposition of the casino operator as the entity to grant such a licence. The legislation could simply have provided that, unless excluded by the casino operator pursuant to s 79, a person may enter and remain in a casino.

91 This seems to me to be reinforced by the fact that there is no provision in the Act dealing with the manner in which any such licence is to be granted by the casino operator (or the terms on which it might be granted) or as to the discretion, if any, that the casino operator may have in relation to the grant of the statutory licence (as opposed to its revocation).

92 Mr McHugh submits that if, as Mr Hinkley now contends, s 77 is a codification of Star City’s right to allow persons to enter or remain upon the casino premises, then it does so in a section (s 77) (wholly independent of the power to issue exclusion orders (in s 79)) which permits the refusal to grant the (on this hypothesis) statutory licence in the first place and to do so without any machinery provisions (such as in relation to applications for such a licence, the factors to be taken into account and the persons authorised to exercise a power to grant such an application).

93 In this regard, it is noted that s 79 does not, in its terms refer to the rescission of a licence or statutory licence granted under s 77, as Mr McHugh submits might have been expected had s 77 effected the grant of a statutory licence in the first place.

94 Mr McHugh further submits that if s 77 was intended to confer a statutory permission for entry to the casino, then the section could have been more simply framed by reference to “use” of the premises without reference to a licence as such. He notes that the concept of a ‘licence’ is well known and commonly understood in the context of common law property rights and that it cannot be assumed that the legislature, when using that term, meant a ‘statutory’ licence as opposed to a common law licence. It is submitted by Mr McHugh that there is nothing in the legislation to suggest that the reference, in s 77, to the right of entry only being by way of licence granted by the casino operator was intended to be a reference to anything other than the common law licence which the owner or occupier of land is in a position to grant.

95 Mr McHugh submits, and I agree, that the wording of s 77 simply assumes the existence of a common law licence and evidences no intent to codify or exclude common law rights in relation to the grant of licences to enter the casino. I read s 77 as being no more than a statutory recognition that the only basis on which a person may enter and remain in the casino is pursuant to a licence granted by the casino operator (and an implied limitation on a casino operator’s right to grant anything other than a licence to persons for entry into the casino) but without itself conferring any licence and without imposing any obligation on the casino operator to grant such a licence in any particular case to a particular person (which would be the effect of reading this section as the source or grant of a statutory licence).

96 If Mr Ashhurst is correct, then it must follow that Star City has no power to refuse entry even on a one-off basis (say, for drunkenness or inappropriate attire) other than by invoking the exclusion mechanism in s 79. Such a result surely could not have been intended (and would appear to be inconsistent with the objective of the legislation being to control the potential of a casino to cause harm to the public interest). In that regard, I note that, in reviewing the operation of the part of the Act dealing with Exclusion Orders, Jacobson J in Foroughi v Star City Pty Limited [2007] FCA 1503 (at [70]) recognised that one of the primary objects of the Act is to contain and control the potential of a casino to cause harm to the public interest and to individuals and families (there referring in particular to s 4A(1)(c)) (in the context of a case in which his Honour found there was no breaches of a duty of care nor other statutory duties on the part of Star City by reason of its failure to detect and prohibit the attendance of a person at the casino after the making of a voluntary exclusion order under s 79(3)). An unwieldy process for refusing on-the-spot admission to the casino (rather than leaving this in the casino operator’s discretion) seems inconsistent with such an objective.

97 I accept the defendants’ submission that, other than in respect of the persons to whom a statutory licence is granted (in s 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 a common law right as an occupier (with acknowledged actual possession of the casino premises) to refuse to grant (or to revoke once granted) a licence to enter the casino premises.

98 Mr McHugh submits that an abrogation of common law rights cannot be inferred in the absence of irresistibly clear and express words, referring to the authorities summarised in Evans & Anor v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576, at 593:

Potter v Minahan

On the Interpretation of Statutes,

99 Mr Ashhurst’s response to this was that the presumption (if it still exists) that a statute does not interfere with or intend to abolish common law rights is now regarded as weak and having negligible effect (referring to Harrison v Melham (2008) 72 NSWLR 380; [2008] NSWCA 67; per Spigelman CJ, at 382-383 and Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269, at 284 per McHugh J). In Harrison, however, as Mr McHugh points out, Spigelman CJ acknowledged (at [6] –[7]) that “the principle still operates with force with respect to legislation which abrogates fundamental rights, immunities and freedoms” and the defendants submit that the right to sue in trespass to vindicate rights flowing from actual possession (and the right to permit the use of property or to grant rights in relation to property) is a fundamental common law property right.

100 Reliance was placed on what was said by McClellan CJ at CL (with whom Spigelman CJ and Handley AJA agreed) in Studman v DPP (Cth) [2007] NSWCA 285, at [35] to the effect that provisions of a statute that provides for the confiscation or derogation from property rights must be strictly construed. It is submitted that it would be a surprising result if s 77 were to be construed as having abrogated the right of Star City to bring an action for damages in trespass without having expressly so provided and that there is nothing that could give rise to a necessary implication to that effect. It seems to me that this is correct.

101 Mr Ashhurst submits that the vesting of statutory power solely in Star City (and the Authority), to the exclusion of Casino Properties, to regulate the attendance of and to exclude persons from the casino premises is consistent with the objects of the Act set out in s 4A and with the function of the Authority in s 141(2)(c) of the Act (to “keep under constant review all matters connected with casinos and the activities of casino operators, persons associated with casino operators, and persons associated with casino operators who are in a position to exercise direct or indirect control over the casino operators or persons associated with casino operators”.)

227 This might suggest that, in the absence of conclusive evidence as to the extent of control by Casino Properties (as opposed to Star City) over the non-casino premises, it might nevertheless be deemed to be in possession as a function of the holding of its leasehold estate or interest in the land.

228 In Wuta-Ofei v Danquah [1961] 1 W.L.R. 1238; [1961] 3 All E.R. 596; (1961) 105 S.J. 806, the Privy Council held that the slightest degree of evidence may amount to possession sufficient enough to allow an owner to land to maintain a claim in trespass where a claim is made against someone who otherwise has no title to the land (in that case the facts sufficient to prove possession of what was otherwise considered to be vacant unenclosed land was that the plaintiff’s mother “kept watch” on the land, where there was otherwise an absence of positive evidence indicating an abandonment of possession) but this was not a case where there was another party in occupation (and likely to have sufficient control over the site to be able to maintain it own claim in trespass). Lord Guest there said:

229 It is therefore in my view by no means unlikely that (notwithstanding that Star City may have actual possession of the whole of the casino complex) Casino Properties would be said to have retained a degree of control sufficient to maintain an action in trespass against a wrongdoer or person who otherwise has no right to enter the non-casino premises, in circumstances where the terms of the licence expressly state that it is non-exclusive and thus implicitly at least preserve the right of Casino Properties to enter the land and to license others to do so.

230 Ultimately, however, even if (as I think it does) Casino Properties has standing (by reason of its right to possession of the non-casino premises over which it had granted no more than a non-exclusive licence) to maintain a claim in trespass against a member of the public, such as Mr Hinkley, to whom it has decided to refuse access to the non-casino premises, this will be a moot point if Mr Hinkley could rely in his defence on an entitlement to have access to the premises derived from a licence granted by Star City (statutory or otherwise); hence the efficacy of Star City’s withdrawal of a licence to enter the casino premises would seem to me to determine the outcome of such a claim.

231 This brings me to the second basis on which Mr Ashhurst maintains that Casino Properties is not able lawfully to maintain a claim in trespass against Mr Hinkley (and therefore could not separately maintain the validity of the Notice if it did not operate as a notice validly issued by Star City).

Implied Easement to cross non-casino premises?

232 Mr Ashhurst relied upon the decision of Wilcox v Richardson (1997) 43 NSWLR 4 for the proposition that Casino Properties is taken to have granted an implied easement in favour of Star City and its invitees in order to permit them to traverse the non-casino premises. In Wilcox it was held that those rights of access or other proprietary rights which are seen as being reasonably necessary for the enjoyment of the property granted will be included in the primary grant of the proprietary interest. Such an implication as to inclusion of certain rights is based jurisprudentially upon the common intention of the parties (see the decision of Tobias JA in McGrath & Anor v Campbell & Anor [2006] NSWCA 180; 68 NSWLR 229, at [65] for consideration of the jurisprudential basis of such an implication and whether it is the common intention of the parties inferred as the actual common intention of the parties or as their presumed or imputed intention.)

233 In Aldridge v Wright [1929] 2 KB 117, Scrutton LJ (at 125) referred to the following passage from Lord Parker’s speech in Pwllbach Colliery Co v Woodman [1915] AC 634, at 646-647, where his Lordship said:

234 In Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144, Lord Edmund-Davies noted (at 715):

Wheeldon v . Burrows

235 His Lordship went on to state that the basis of the proposition so stated was, as Lord Parker stressed in Pwllbach Colliery Co, at 646, that:

to a grant of real property

236 After discussing earlier cases, in Wilcox v Richardson, Handley JA said (at 14-15):

The rule in Wheeldon v Burrows illustrates the relevance of surrounding circumstances to the implication of terms and reflects the working out of the general principle ‘that a grantor shall not derogate from this grant’ (at 49). As Lord Wilberforce said in Sovmots Ltd v Environment Secretary [1979] AC 144 at 168: ‘The rule is a rule of intention, based on the proposition that a man may not derogate from his grant’.

Ad hoc implied terms, as explained in Codelfa (at 353), give effect to the presumed intention of the parties, but the leading cases referred to in Codelfa , and Codelfa itself, concerned contracts where the principle of non-derogation was not relevant. Horsfall v Braye (1908) 7 CLR 629 at 668, 645-648, cited in Codelfa , involved a grant of land, and the two lines of authority were there brought together.

… the rule in Wheeldon v Burrows is not a special rule of the law of conveyancing, but is only an illustration, in particular circumstances, of the operation of the ordinary rules governing implications in contracts: see Nelson v Walker (1910) 10 CLR 560 at 586-587; Sovmots Ltd v Environment Secretary … [1979] AC 144 at 175.”

The true test, implicit in the general authorities, and explicit in Wheeldon v Burrows , is the more liberal test of whether the implied rights were ‘necessary to the reasonable enjoyment of the property granted’. The difference is significant, because rights which are not necessary for the operation of a business may be necessary for its reasonable operation and hence for the reasonable enjoyment of land leased for that business. Expressed in other words, such rights may be needed "to give such business efficacy to the transaction as must have been intended at all events by both parties who are business men": The Moorcock (1889) 14 PD 64 at 68.

It is clear from the judgment of Thesiger LJ that the test of what is necessary for the purpose of the rule in Wheeldon v Burrows is not the strict test relevant for the implication of an easement of necessity: see also Wheeler v J J Saunders Ltd [1996] Ch 19 at 31, per Peter Gibson LJ. What is necessary for this rule is what ‘conduces to the reasonable enjoyment of property’ (ibid).

Moreover in Schwann v Cotton [1916] 2 Ch 459 at 469, Lord Cozens-Hardy MR said: ‘The word necessary must not be taken in a rigid sense. The better phrase is that which is used by Lord Campbell ... “convenient and comfortable enjoyment of the property” ....’

Thus the expression means needed or required for the reasonable enjoyment of the property granted.”

237 Reference was also made to Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633 in which Palmer J referred to the rule in Wheeldon v Burrows (1879) 12 Ch D 31 and emphasised (at [9] that:

… the determination of what is “necessary for the reasonable enjoyment” of demised premises in this context does not require the application of “the strict test relevant for the implication of an easement of necessity” : see also Wheeler v J J Saunders Ltd [1996] Ch 19 at 31, per Peter Gibson LJ. What is necessary for this rule is what ‘conduces to the reasonable enjoyment of property’ (ibid). Moreover in Schwann v Cotton [1916] 2 Ch 459 at 469, Lord Cozens-Hardy MR said: “The word necessary must not be taken in a rigid sense. The better phrase is that which is used by Lord Campbell … ‘convenient and comfortable enjoyment of the property’.” : Wilcox at p.15 per Handley JA.

238 However, the principle expressed in the above cases concerning the imputation of a common intention on the part of the parties to confer such property rights as are reasonably necessary to the enjoyment of and additional upon the main grant, is one that relates to the grant of property, and not to a grant of contractual rights to occupy and remain on property or to use property for a particular purpose.

239 I was not referred to any authority for the proposition that the principle applies in the context of cases where there is a contractual right of occupation granted to a licensee (be that an exclusive or non-exclusive licence). It does not seem to me that this is surprising. An implied grant of an easement (creating a proprietary right) would seem inconsistent with the express term in the parties’ licence agreement (as here) that it was to confer no proprietary estate or interest in the land. I have difficulty with the proposition that one would imply into the parties’ agreement a term which directly contradicts an express term of that agreement.

240 I note that in Star Energy, to which I was referred by Mr McHugh on a different point, there was a suggestion that the doctrine of non-derogation from grant could apply in favour of licensee (as opposed to a lessee or recipient of a proprietary interest in land). In Star Energy, an issue arose as to whether a party granted exploration and extraction rights in relation to an oil field under a statutory licence was able to enforce such rights against a private third party who owned the land below which the oil field lay. Having determined that the third party’s ownership of land extended below the surface of the soil to include the oil field and that (as the ‘paper’ owner of the land, absent any other party claiming exclusive possession), it could be assumed that the third party was in possession of the land and thus able to sue in trespass, consideration was given to whether the principle of non-derogation from grant provided Star Energy with a defence to an action in trespass. There it was said that where the licence was not granted by the owner seeking to bring the claim in trespass (but rather was a licence arising by way of statute) then the principle of non-derogation from grant (which it was said would otherwise been applicable, had the licence been granted by the owner) did not provide a defence to trespass. Lord Hope said (at [32]):

The principle of non-derogation from grant would prevent the appellant from doing anything that would hamper the respondents' use of the strata for the purpose that both parties contemplated at the time of the grant

241 The passage of Aikens LJ in Bocardo SA v Star Energy UK Onshore Ltd [2009] EWCA Civ 579; [2009] 3 WLR 1010; [2010] Ch 100, to which reference and approval was made by Lord Hope in the above extract, is (at [74]);

242 There again, however, the observation was made by Aikens LJ in the context of assuming a sale or lease of property. Therefore, the comments of Lord Hope might perhaps best be understood on the basis that the statutory licence there was akin to the grant of a licence coupled with a profit a prendre, since the licence in question seemed to confer rights in relation to the petroleum itself (the terms of the licence being that for and on behalf of Her Majesty ” grants to the licensee the “… exclusive licence and liberty during the continuance of this Licence and subject to the provisions thereof to search and bore for, and get, petroleum in the area of 247.5 square kilometres more particularly described in Schedule 1 hereto – see [32] of Bocardo SA v Star Energy UK Onshore Ltd and [6] of Star Energy v Bocardo). This might explain their Lordships’ apparent readiness to consider the application of the doctrine of non-derogation from the grant from cases where the grant is of a proprietary interest to those where the grant is of a contractual interest. (See for example the reference in Halsbury’s Laws of Australia, Online edn, at [245-240] to the situation “where a licence is coupled with the grant of an interest in a corporeal hereditament to ensure that there is no derogation from that grant, the manner of dealing with the licence is altered”).

243 Relevantly, the doctrine of non-derogation from grant applies where a grant of property has been made (so that there is no derogation from that grant of property). A licence may itself be implied where that licence is necessary to give effect to such a grant. It does not, however, seem to be the case that the grant of a licence will itself support the implication of the grant of a proprietary right. Mahon J stated in Mayfield Holdings Limited v Moana Reef Limited [1973] 1 NZLR 309 (from 314):

"A dispensation or licence properly passeth no interest . . . but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a mans park, to come into his house, are only actions, which without licence, had been unlawful.

For my part, I cannot see any justification for extending the "grant" or "interest" beyond the traditional definition of proprietary interests in land or chattels.

244 In considering the issue whether a party granting a non-exclusive licence could refuse access to an invitee of its licensee, it seems to me that assistance may be derived from the somewhat similar (though of course not directly analogous) position of co-owners of property. In that context, consideration has been given to the question whether one co-owner can lawfully terminate a licence given by another co-owner (in Koumdjiev).

245 In Koumdjiev, it was implicitly accepted that one co-owner may terminate a licence given by another co-owner (each owner seemingly having the concurrent right to sue in trespass) but whether such a termination would be effective turned upon whether the licence so granted went beyond those rights that the licensor/co-owner itself would have and thus be able to license. In Koumdjiev the Court of Appeal seemed to proceed on the basis that if a licence is granted by one co-owner that is in excess of what is reasonable and incidental to that co-owner’s possession, use and enjoyment of the property and which prejudices the other co-owner’s common possession, use and enjoyment of the property, then such a licence will be terminable by another co-owner (at [41]). (I note that special leave to appeal to the High Court refused; State of New South Wales v Kouumdjiev [2006] HCATrans 7.) (See also Pitt v Baxter [2007] WASC 104).

246 In Koumdjiev, it was found that a tenant in common of property, although able to transfer or lease its interest to a stranger, cannot (short of such transfer or lease) grant a licence to a stranger which is irrevocable by other tenants in common if that licence is of a kind which goes beyond what is reasonable or incidental to the grantor's possession and use and enjoyment of the property, enjoyment in common with the other tenants in common, and which interferes with the possession and use and enjoyment of the property by other tenants in common. Hodgson JA (with whom Beazley JA and Hislop J agreed) noted (at [31]) that:

247 His Honour referred to Robson-Paul v Farrugia (1969) 20 FCR 820; Annen v Rattee [1984] 1 EGLR 136; and Hong v Choo [2004] HKEC 64, and then at [40] – [41] said:

Choo

In my opinion, that gives too little weight to an incident of possession, namely the right or power to grant or withhold permission to others to enter property

Otherwise, in my opinion, there can be no reasonable reconciliation of the rights of both tenants in common to have possession and use and enjoyment of the property

248 His Honour then (from [45]) considered an example not dissimilar to one posed by Mr Ashhurst in argument on this issue:

Applying this approach [the approach his Honour discerned from the result in Choo , namely that a licence that was reasonably incidental to one tenant in common’s right to possession and use and enjoyment of the property was not terminable by other tenants in common] to the entrance foyer of an apartment block, and subject to any bylaws of a relevant strata scheme, this would mean that, if one unit owner gives a licence to an acquaintance to enter the common property in order to visit the unit owner’s unit, that licence could not be revoked by another unit owner.

On the other hand, one unit owner could not give a licence, irrevocable by another unit owner, to a person who sought entry in order to harass the other unit owner at the internal front door of the latter’s unit. That licence would not be reasonable and incidental to the right of the grantor to possession and use and enjoyment of the common property. The grant of such a licence could not trump the right of the person who would be harassed to exclude the harasser, as an incident of that person’s right to possession and use and enjoyment of the common property.

249 The rationale for this was later explained in White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd and 2 Ors [2007] NSWSC 1210 by Brereton J as (at [25]):

The rationale for the different position in respect of a licence and a lease is that the lease of one tenant-in-common’s share effectively substitute’s the lessee’s rights for those of the lessor, so that the burden is not increased, and the lessee has a right of possession to the exclusion of the lessor but together with the other tenants-in-common, whereas in the case of a licence the licensee’s right of occupation is not exclusive of that of the licensor and does not carry a right to possession, so that the total burden is increased, as is illustrated by the example given by Hodgson JA in Koumdjiev, in the passage cited above, at [41].

Although the proposition was doubted by the Court of Appeal in Robson-Paul v Farrugia (1969) 20 P & CR 820, the predominant view is that one of several tenants in common can grant a licence to enter on to the property [Bull v Bull [1955] 1 QB 334 at 237; Hong v Choo [2004] HKCFI 24; affirmed [2005] HKEC 1156; New South Wales v Koumdjiev].

250 Applying the above reasoning to the situation here, it seems to me that there is an argument that even if (as I think is the case) both Star City and Casino Properties have rights of possession over the non-casino premises and could maintain an action in trespass in respect of a patron whose licence to enter the casino complex (or that part of it under their respective control) had been withdrawn or refused, nevertheless Casino Properties’ ability to evict or refuse access to the non-casino premises to an invitee of Star City (where such access was an incident to the right to use and enjoy the casino premises) would depend upon whether the access so sought was other than consistent with the reasonable use of the casino premises by Star City under its licence.

251 In my view it is not necessary to go as far as the implication of an implied easement in favour of invitees of Star City (even if it were possible to do so in light of the express provision in the licence disavowing the intention to create any proprietary rights in relation to the land).

252 I also note that while there would be a reasonable argument for the implication of a term into the licence agreement (necessary to give business efficacy to that agreement) that Casino Properties would permit invites of Star City to traverse the non-casino premises if additional rights of access were necessary to give effect to the purpose contemplated by the parties for the grant of the licence, (Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337) the difficulty for Mr Hinkley in such an analysis, however, is that any such contractual right lies in Star City, albeit ultimately perhaps for the benefit of its invitees, and a breach by Casino Properties would simply sound in a claim for damages by Star City. (There might potentially be a basis on which a party who, as against Star City, has a right of entry to the casino could compel Star City to enforce as against Casino Properties any rights of access it had impliedly promised to give across the non-casino premises, but no such claim was raised here and the issue was not the subject of argument before me.)

253 In summary, on this issue and noting that it does not strictly arise having regard to my findings on the earlier issues, I am of the view that, as against Mr Hinkley, (assuming for this purpose that he remains an invitee of Star City – either because he has the benefit of a statutory licence not validly excluded or because Star City has not validly withdrawn a freestanding common law licence), while Casino Properties is likely to have had sufficient title to bring an action in trespass (even though Star City would also appear to have standing to do so by reference to its actual possession of the premises), the question would then be whether Mr Hinkley could set up a defence based on the licence derived from Star City.

254 I do not consider that Mr Hinkley can maintain an entitlement to the benefit of an implied easement based on the doctrine of non-derogation from the grant. (Such a proprietary right would be inconsistent with the terms of the licence and as Mr McHugh pointed out, the purpose of non-derogation from grant relates to the party making the grant – and, here, it is not suggested that Casino Properties has granted anything to Mr Hinkley.) While I think it likely that Casino Properties would have an implied obligation, as a matter of contract, to afford access to Star City’s invitees, that obligation is owed to Star City and though a breach of that obligation would potentially sound in damages viz a viz Star City it does not necessarily lead to the conclusion that Mr Hinkley could enforce as against Casino Properties rights under a licence from Star City.

255 However, by analogy with an analysis of the kind in Koumdjiev, it seems to me, in this case is that, having granted a non-exclusive licence to Star City for the purpose of enabling casino patrons (and other members of the public) to have access to the casino complex, Casino Properties cannot in effect terminate (or set up its own right to possession against) an invitee to whom Star City has granted a licence to enter the casino complex (unless that licence or the use made of that licence is for a purpose inconsistent with the reasonable use and enjoyment of the premises contemplated by the grant of the licence to Star City). The answer to this issue, in favour of Mr Hinkley, is therefore in the negative.

Futility

256 As to the remaining discretionary question (namely whether there would be any utility in granting the relief sought if Star City could simply refuse to grant a fresh licence the next time Mr Hinkley attended the casino), this does not arise on the findings I have made. If it had arisen, and insofar as it is not already addressed above, I note that Mr Ashhurst submitted that there is no evidence that Star City intends to act capriciously and refuse entry to Mr Hinkley on every occasion that he attends at the casino and says that, if it did, any such arbitrary behaviour would itself be a denial of natural justice.

257 Had I been of the view that there had been an obligation to afford, and a denial of, natural justice on the part of Star City, then I would have considered the appropriate relief was to set aside the Notice. On the hypothesis that the claim for such relief was sustained, there is no evidence before me to suggest what would be the outcome of a re-consideration of the decision to exclude Mr Hinkley either in accordance with the procedures under s 79 of the Act or consistently with the manner of exercise of those statutory powers. (I have addressed above the question whether it would still have been open to Casino Properties to exclude Mr Hinkley irrespective of the position viz a viz Star City.)

Orders

258 In view of the above findings, the appropriate order is that the Summons should be dismissed with costs and I so order.

**********

Actions

Download as PDF Download as Word Document

Citations

Hinkley v Star City Pty Ltd [2010] NSWSC 1389

Most Recent Citation

Garry Charles Sleeman v SPI Electricity Pty Ltd [2014] VSCA 243

Cases Citing This Decision

5

Hinkley v Star City Pty Ltd [2011] NSWCA 299

PESCOTT And INSPECTOR-GENERAL IN BANKRUPTCY [2013] AATA 680

Cases Cited

53

Statutory Material Cited

2

Forbes v New South Wales Trotting Club Ltd [1979] HCA 27

Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39

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] FCAFC 130; (2008) 168 FCR 576 FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; (1979) 25 ALR 1; (1979) 53 ALJR 536 Foroughi v Star City Pty Limited [2007] FCA 1503 Georgeski v Owners Corporation SP49833 (2005) 62 NSWLR 534 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 133 CLR 487 Jones v Swansea City Council [1989] 3 All ER 162 Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 M61/2010E (and M69/2010) v Commonwealth of Australia [2010] HCA 41 Manchester Airport plc v Dutton [2000] 1 QB 133 Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759 McGrath & Anor v Campbell & Anor [2006] NSWCA 180; 68 NSWLR 229 Newington v Windeyer (1985) 3 NSWLR 555; (1985) 58 LGRA 289; [1986] ANZ ConvR 436 Peter Harrison v Sophie Carswell [1976] 2 S.C.R. 200; [1976] 2 RCS 200 Peters v The Queen (1971) 17 D.L.R. (3d) 128 Pwllbach Colliery Co v Woodman [1915] AC 634 R v Warner (1661) 1 Keb 66 R v Wear Valley District Council [1985] 2 All ER 699 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Rose v Boxing NSW Inc (2007) NSWSC 20 South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378 Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 Star Energy Weald Basin Limited and Anor v Bocardo SA [2010] UKSC 35 Studman v DPP (Cth) [2007] NSWCA 285 Traderight Pty Limited v Bank of Queensland; Bank of Queensland v Traderight Pty Limited; Jude Financial Services Pty Limited v Bank of Queensland; Rossmick No 1 Pty Limited v Bank of Queensland; Bank of Queensland v SME Business Assist Pty Limited; Geraghty & Palmer Pty Limited v Bank of Queensland [2010] NSWSC 139; (2010) 266 ALR 503; (2010) 238 FLR 358 Tryam Pty Ltd and Anor v Grainco Australia Ltd and Ors [2003] NSWSC 812 Wheeldon v Burrows (1879) 12 Ch D 31 Wilcox v Richardson (1997) 43 NSWLR 4 Wuta-Ofei v Danquah [1961] 1 W.L.R. 1238; [1961] 3 All E.R. 596; (1961) 105 S.J. 806 Ying v Song [2009] NSWSC 1344
TEXTS CITED:	Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th edn), Lawbook Company, 2009 Heydon D., ‘Limits to the Powers of Ultimate Appellate Courts’ (2006) 122 LQR 399 Mason A., ‘The Importance of Judicial Review of Administrative Actions as a Safeguard of Individual Rights’ (1994) 1 Aust J of Human Rights 3 Warren I., ‘An air of uncertainty: private security regulation in Victoria’ (1997) 2(2) Deakin Law Review 223 Wonnacott, ‘Flawed judgment’ [1999] Estates Gazette 165
PARTIES:	Andrew Shane Hinkley (Plaintiff) Star City Pty Ltd (First Defendant) Sydney Harbour Casino Properties Pty Ltd (Second Defendant)
FILE NUMBER(S):	SC 10/334935
COUNSEL:	M Ashhurst SC with M Gunning (Plaintiff) R McHugh SC with K Richardson (Defendants)
SOLICITORS:	APL Lawyers Pty Ltd (Plaintiff) Mallesons Stephen Jaques (Defendants)