Nguyen v The Star Pty Limited

[2022] NSWSC 979

Supreme Court

New South Wales

Medium Neutral Citation:

Nguyen v The Star Pty Limited [2022] NSWSC 979

Hearing dates:

7 July 2022

Date of orders:

25 July 2022

Decision date:

25 July 2022

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The proceedings are dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) 13.4(1)(b).

(2) The plaintiff is to pay the defendant’s costs.

Catchwords:

CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1) and 14.28 – Application for dismissal – Whether proceedings frivolous or vexatious – Exclusion order from Casino – Monetary claim – No Loss – No cause of action – proceedings dismissed.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (UCPR) r 13.4, 14.28

Civil Procedure Act 2005 (NSW) s 56, 57, 58, 59, 60, 67

Casino Control Act 1992 (NSW) ss 3, 4A, 77, 78, 79, 80, 81, 82, 84

Cases Cited:

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534.

Category:

Procedural rulings

Parties:

Kim Nguyen (Plaintiff)
The Star Pty Limited (Defendant)

Representation:

Counsel:
J. Hynes with P. Kucharski (Defendant)

Solicitors:
Self-represented (Plaintiff)
Gadens Lawyers (Defendant)

File Number(s):

2022/89816

Publication restriction:

Nil

Judgment

1. HER HONOUR: This matter involves a notice of motion seeking dismissal of proceedings.

2. The plaintiff is Kim Nguyen. She was not legally represented. Her partner, Mr Anderson, with the plaintiff’s, spoke on her behalf. The plaintiff at times gave instructions to Mr Anderson. I granted leave for Mr Anderson to speak on behalf of the plaintiff. The defendant is The Star Pty Limited. Mr Hynes of Counsel appeared for the defendant/applicant. He neither consented nor opposed the grant of leave (T1.44). The parties relied on a Court book (“Ex 1”).

3. By way of notice of motion filed 6 May 2022, the defendant relevantly seeks:

1. Order that the proceeding be dismissed, including pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. In the alternative to (1) above, an order:

1. that the proceeding be permanently stayed, including pursuant to section 67 of the Civil Procedure Act 2005 (NSW); or

2. further and alternatively, that the Statement of Claim be struck out pursuant to rule 14.28 of the UCPR with no leave to replead.

4. At the hearing, the defendant does not press order 2(a) of the notice of motion.

Background

5. The defendant operates The Star Sydney casino (“the Casino”) at Pyrmont in Sydney, New South Wales. Prior to 20 April 2021, the plaintiff attended the Casino from time to time.

6. The Commissioner of Police issued an undated direction to the defendant under s 81 of the Casino Control Act 1992 (NSW) requiring the defendant to give an exclusion order to the plaintiff.

7. The effect of the order was that it was an offence under s 84 of the Casino Control Act for the plaintiff to enter or remain in the Casino.

The pleading in the statement of claim

8. On 29 March 2022, the plaintiff filed her statement of claim in the proceedings. The totality of the pleadings and particulars contained in the Statement of Claim are as follows:

“Defendant employer Andrew McGregor (The Star Casino) investigation manager has banned the plaintiff access to the casino verbally for one year but nothing in written and no explanation why the plaintiff is banned. The plaintiff on a numerous times has been sending texts and calls and emailed about this matter. to the defendant manager Andrew me Gregor plaintiff has received in person and by home mail the same letter regarding a banned letter plaintiff has been banned but no end date and time of banned has taking place but no period of the banned ending Defendant then inform police and police issue a banned notice with no times and dates etc. no valid information provided and the plaintiff gone to the police station to question the documents and no police staff couldn't follow up on this matter as the reference can not read in there system. Plaintiff then question defendant employer Andrew Mc Gregor and again no answer from Andrew Mc Gregor.”

9. The relief claimed in the statement of claim is $950,000.00 (excluding filing and service fees).

10. In the period from 7 April 2022 to 11 May 2022, the defendant’s solicitors (Gadens Lawyers) corresponded with the plaintiff. In this correspondence, it was indicated that the plaintiff’s claims had no reasonable prospects of success, and the plaintiff was encouraged to obtain legal advice on a number of occasions and she was invited to withdraw the claim. The plaintiff did not do so.

11. The plaintiff has served (but not filed) a proposed amended statement of claim (“PASC”).

12. The defendant has set out the pleadings contained in the PASC and why it also does not disclose a reasonable cause of action later in this judgment.

Legal principles

13. The defendant’s primary position is that the proceeding should be wholly dismissed under UCPR 13.4(1)(b) as no reasonable cause of action is disclosed. UCPR 13.4 reads:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

14. The principles to be applied in assessing whether a reasonable cause of action exists are settled and were summarised by the High Court of Australia in the well-known case of General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 (“General Steel”) at 129 per Barwick CJ:

… The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

15. In making the assessment as to whether the plaintiff has a reasonable cause of action, I will take the plaintiff’s case at its highest. That means that I take into account the pleading in the PASC and the documents filed by the plaintiff including Exhibit 1.

16. Further or in the alternative, the defendant submitted that the plaintiff’s Statement of Claim should be struck out pursuant to r 14.28(1)(a) of the UCPR for failure to disclose any reasonable cause of action or other case appropriate to the nature of the pleading.

Statutory framework

17. The Casino control Act 1992 (NSW) provides the relevant statutory framework in these proceedings. The relevant provisions of this act are as follow:

3   Definitions

(1)  In this Act—

Authority means the Independent Liquor and Gaming Authority constituted under the Gaming and Liquor Administration Act 2007.

…

casino operator means a person who is the holder of a casino licence.

…

…

4A   Primary objects of Act

(1)  Among the primary objects of this Act are—

(a)  ensuring that the management and operation of a casino remain free from criminal influence or exploitation, and

(b)  ensuring that gaming in a casino is conducted honestly, and

(c)  containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families.

(2)  All persons having functions under this Act are required to have due regard to the objects referred to in subsection (1) when exercising those functions.

…

77   Right of entry to casino

(1) A person enters and remains in a casino only by licence of the casino operator, except as provided by this section and section 78.

78   Police powers of entry to casino

(1)  For the purpose of the discharge of the duty of a police officer, any part of a casino to which the public has access is to be regarded as a public place.

(2)  A police officer may, on being authorised by the Authority or an inspector to do so, enter any part of a casino to which the public does not have access and may remain there for the purpose of discharging his or her duty as a police officer.

(3)  Such an authorisation may be given in a particular case or generally and may be given so as to operate on a specified occasion or throughout a specified period.

(4)  The Authority or an inspector giving such an authorisation to a police officer is to inform the casino operator or the person for the time being in charge of the casino as soon as practicable.

(5) Nothing in this section or section 77 affects any power a police officer has by law to enter any part of a casino.

79   Exclusion of persons from casino

(1)  The Authority or the casino operator or the person for the time being in charge of the casino may, by order in writing (an exclusion order) given to a person, prohibit the person from entering or remaining in a casino.

…

(4A) It is a condition of a casino licence that the casino operator must, as soon as practicable after an exclusion order is given to a person by the operator following a direction given under section 81, cause notice of the order to be given to the Commissioner of Police.

…

80   Review of exclusion order

(1)    (Repealed)

(1A)  An exclusion order given by the Authority, or at the direction of the Commissioner of Police, may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court or tribunal in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus.

…

81   Commissioner of Police may direct that person be excluded from casino and casino precinct

(1)  The Commissioner of Police may direct that a person be given an exclusion order by giving a direction to both casino operators to give the person or cause the person to be given an exclusion order and it is a condition of each casino licence that the casino operator must comply with the direction.

…

(7A)  A direction given under this section may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court or tribunal in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus.

…

82   Duration and revocation of exclusion orders

(1)  An exclusion order remains in force in respect of a person unless and until it is revoked by the person who gave the order.

Correspondence

18. There are four relevant pieces of correspondence. They are as follows:

1. On 23 April 2021, on a ‘The Star Casino’ letterhead, the defendant sent a letter to the plaintiff at her address. It is titled “Notice of withdrawal of Licence under Common law”. In compliance with the direction, the defendant issued a notice of withdrawal of license under common law and an exclusion order to the plaintiff pursuant to s 79 of the Casino Control Act. The order stated that the plaintiff was “prohibited from entering or remaining on the premises of The Star Casino Sydney, the Treasury Brisbane and The Star Gold Coast, while this order remains in force. This order shall remain in force from Friday, 23 April, 2021 until such time it is revoked by the person who gave this order. The withdrawal of this licence will continue indefinitely.” It was signed by Andrew McGregor (CB 37).

2. On 23 April 2021, the defendant also issued the plaintiff with an exclusion order notice pursuant to s 79 of the Casino Control Act. The exclusion order notice was on a Star Sydney letter head. It reads (CB 38):

“Exclusion order Exclusion Number XXXX

Casino Control Act 1992 (The Act)

Part 5: Section 79

Surname: Nguyen

Given names: Kim Huyen Tran

…

Address: XXX

Date of birth: XXX

…

Star/Endeavour account number: XXX

…

Pursuant to section 79 of the Act you are prohibited from entering or remaining on the premises of The Star casino while this order remains in force.

This order shall remain in force from Friday, 23 April, 2021 until such time it is revoked by the person who gave this order.

…”

The letter was signed by an authorised person and witnessed. [CB 38]

3. The NSW Police Force served a notice to Ms Nguyen regarding her exclusion from the Star and Crown Casinos [CB 36]. It is on NSW Police letterhead. The plaintiff says she was personally served this notice at her home on 31 January 2022. The document is undated. It states that it is for official use only and provided a reference number. It reads:

“Dear Ms Nguyen, Ref: D/2020/XXXX

Exclusion from the Star and Crown Sydney

You are advised that pursuant to a delegation of authority by the Commissioner of Police, I have directed your exclusion from the Star and Crown Sydney, under section 81 of the Casino Control Act 1992.

The Star and Crown Sydney have been advised of my decision, and as a result, an exclusion order has been issued in accordance with section 79 of the Casino Control Act 1992.

This exclusion is to take effect immediately and cannot be appealed.”

The letter head was signed by Stuart Smith APM, Assistant commissioner, Commander.

4. On 28 February 2022, the plaintiff sent an email to Andrew McGregor. It reads:

“Last week, we had a little chat over the phone, where I had discussed with you about how I had received a letter from the Commissioner of Police. Essentially, within that letter it stated information about my ban from The Star casino & Crown Sydney

However, there must have been some miscommunication or message lost in translation, as the letter from the Police states that I am was banned with no times and dates

Seeing this, I decided to call the number provided on the letter from the Commissioner of Police. But, I was not lucky enough to get through to them. I did leave them a message to call me back, unfortunately they did not return said calls either. In addition to this, I physically went out to Fairfield Police Station to ask them about the letter, in which they informed me that they checked through their system, and nothing was present with the reference number as well as no dates or time frame provided from the letter. They told me that the letter either included an invalid reference number, or there are missing terms from the document (which I doubt would be the case, as this is supposedly a legal government document). The Police Officers advised me to contact the person who put affect this ban, as it seems like there has been a miscommunication in the process. They additionally told me, after reading the letter from The Star, that if the document states only a one year ban from 23/4/2021, than there might have been a delay in document processing, and messages were not passed on effectively. I was told, by Police to contact you to discuss this properly. Had your document stated a permanent ban, then fair enough and the Police’s letter is valid. But you only ban me for one year.

In saying this, can you please kindly write up a letter/email confirming that I am banned from The Star for ONE YEAR, effective from 23/04/2021. At the end of the day, I do not want to breach any rules. I respected your decision in my ban, and I do not want to do anything to jeopardise any future interactions at the Casino. In saying this, for the future, I do not want to be at The Star one night (AFTER 23/04/2022) and end up getting into serious conflicts, just because there were some miscommunications in the legal documents.

Below, I have attached the letter sent to me by the Commissioner of Police.

Please let me know if you have any issues accessing the file. In addition to this, if there is something that you are able to advise me on, about this situation please let me know as well.”

The defendant’s submissions

19. This is a case in which the inherently untenable nature of the plaintiff’s claims is apparent at a glance, such that it is manifest “on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”: General Steel Industries at 129.

20. In its present form, the statement of claim borders on incomprehensible. Nonetheless, making all due allowance for the plaintiff not having had the benefit of legal advice and seeking to put her case at its highest, it appears that the plaintiff complains of the following alleged matters.

21. First, that through its employee an investigation officer, Mr McGregor, the defendant banned the plaintiff from the Casino. The plaintiff says that the ban was communicated verbally and was for one year’s duration. No explanation for the ban was provided. The statement of claim does not disclose when these events are alleged to have taken place, but it may be inferred that they occurred in April 2021.

22. Second, that the plaintiff on numerous occasions sought to contact Mr McGregor about the ban. She has received a letter stating that she is banned – with the letter containing no end date for the ban. The statement of claim does not disclose when the plaintiff first attempted to contact Mr McGregor. It may be inferred from the words “Last week, we had a little chat over the phone” in her email to him dated 28 February 2022 that the initial contact occurred in the week 21 to 25 February 2022.

23. The statement of claim also does not particularise what letter is referred to, but it may be inferred that it is the defendant’s notice of withdrawal of license under common law dated 23 April 2021. The plaintiff does not allege she did not receive these documents in April 2021. A letter from the defendant is referenced in her email of 28 February 2022, which also asserts that her one-year ban from the Casino was effective from 23 April 2021 (the same date as the withdrawal of license and exclusion order). Copies of the withdrawal of license and exclusion order were also provided to the plaintiff under cover of a letter from the defendant’s solicitors dated 27 April 2022.

24. Third, that the defendant “then” informed police and the police issued a banning notice to the plaintiff with no end date for the ban. When the plaintiff questioned this document with police, the police were unable to locate the banning notice on their system having regard to the document reference appearing on the notice. It is unclear from the statement of claim when these events are alleged to have taken place relative to the other matters summarised above and what it is that the defendant is said to have informed the police about. The statement of claim also does not provide particulars of the banning notice issued by the police that is referred to, but it may be inferred that it is the undated letter from the NSW Police Force to the plaintiff titled ‘Exclusion from The Star and Crown Sydney’ which the plaintiff attached to her email to Mr McGregor dated 18 February 2022. This letter states that the Commissioner of Police has directed the plaintiff’s exclusion from the Casino under s 81 of the Casino Control Act, that the defendant has been advised of the Commissioner’s decision, that as a result an exclusion order has been issued in accordance with s 79 of the Casino Control Act and that “This exclusion is to take effect immediately and cannot be appealed”.

25. Fourth, that the defendant’s conduct as summarised at (a), (b) and (c) above caused damage to the plaintiff in the amount of $950,000 (excluding filing and service fees). The statement of claim does not provide any particulars of the alleged loss.

26. It is apparent that the allegations of fact relied on by the plaintiff in the statement of claim, even if accepted as true in full, do not and are not capable of giving rise to any actionable claim known to the law. Further, the statement of claim discloses no connection whatsoever between the factual allegations and the loss said to have been suffered. It is unknowable on the face of the statement of claim how the alleged facts, even if established, could have caused the loss claimed. These shortcomings were communicated to the plaintiff by the defendant’s solicitors in correspondence dated 27 April 2022, 6 May 2020 and 11 May 2022.

Proposed Amended Statement of Claim dated 26 May 2022

27. The PASC in no way remedies the position. A number of concessions are made in the PASC that render the plaintiff’s case even more untenable.

28. The following is noted in this respect:

1. Firstly, at paragraph 5 of the PASC, the plaintiff accepts that the defendant issued the notice of withdrawal and exclusion order against her on or about 23 April 2021. The withdrawal of license expressly states: “Unless otherwise advised in writing… this Withdrawal of Licence will continue indefinitely.” The exclusion order expressly states: “…you are prohibited from entering or remaining on the premises of The Star casino while this order remains in force. This order shall remain in force from Friday, 23 April 2021 until such time it is revoked by the person who gave this order.” Therefore, if the plaintiff was labouring under any misapprehension (which is denied), this must have been almost immediately dispelled on receipt of the notice. There could have been no reliance or change of position.

2. Secondly, also at paragraph 5, the plaintiff pleads that she accepted a ban for one year and elected not to take issue with it. This makes plain that the plaintiff does not allege she was somehow deprived of any opportunity to appeal from, challenge or seek review of the ban, if any such opportunity existed (which is denied). Rather, the plaintiff made a conscious decision to accept the ban because she “had a lot going on”.

3. Thirdly, at paragraph 6 of the PASC, the plaintiff makes this extraordinary declaration in respect of her alleged $950,000 damages claim: “… second option is to recovery most of the plaintiff money lost at the casino $950,000 as its damages the plaintiff support to plaintiff lifestyle and to cover plaintiff bills [sic].” It seems from this that the plaintiff seeks to recover losses made at the Casino (presumably from gambling, though this is not clear) that were incurred (presumably, though this is also not clear) before the ban was imposed. This reading is consistent with statements made on behalf of the plaintiff to the defendant’s solicitors in a telephone conversation on 9 May 2022 and recorded in a letter dated 11 May 2022 from the solicitors to the plaintiff.

29. These concessions further demonstrate that the plaintiff’s damages claim is completely divorced from the underlying allegations of fact that she relies upon, which themselves do not disclose any cause of action known to the law.

30. The Court can be comfortably satisfied that the General Steel criteria for dismissal of the proceeding are met.

The plaintiff’s submissions

31. The plaintiff made written submissions. At the hearing, oral submissions were made by Mr Anderson, on behalf of the plaintiff.

32. The plaintiff says an employee of the Casino, Andrew McGregor, verbally banned her from the Star's Sydney casino premises at Pyrmont for a period of one year.

33. The plaintiff contends that she has tried to work on a solution with the defendant after the defendant misled her and verbally promised to allow the plaintiff back into the casino after one year. This is why the plaintiff is taking this action now as the one-year period has expired. The defendant has provided false or misleading documents by putting starting dates and no end dates on letters and sending police documents to the plaintiff’s house. Both the police station and Mr McGregor, investigation manager, were not aware of these false or misleading documents. The plaintiff also has no idea why the ban was put on her in the first place. She did not want to fight the issue due to the fact that she got offered a job as a travel host and she was facing covid and family issues at the time. The plaintiff says that there was over $2,500 in credit on her membership. One year later the defendant refunded to her by cheque in the sum of $2.53. The plaintiff would like to request a history to see if the defendant has misled her regarding the correct refund amount.

34. The plaintiff seeks to be allowed back to the casino with her credit put back on her membership account. She claims she was banned from the Casino for no reason, and to this day the defendant has not provided her with a valid reason nor provided any evidence.

Resolution

35. Up until 22 April 2021, the plaintiff had a right to attend the Casino only by licence of the defendant, pursuant to s 77 Casino Control Act.

36. On 23 April 2021, the Casino forwarded a letter to the plaintiff , with the heading ‘Notice of withdrawal of licence under consumer law’ (it has been reproduced earlier in this Judgment). The letter stipulated that her licence to attend Casinos owned by the Star had been withdrawn effective from 23 April 2021. On 23 April 2021 the defendant also forwarded an “Exclusion Order – Casino Control Act” that referred to s 79 which stated “The order shall remain in force on 31 January 2022 from Friday 23 April 2021 until such time as it is revoked by the person who gave this order.”

37. Curiously, some 9 months later, on 31 January 2022, the plaintiff was personally served with a notification of her exclusion from the Star and Crown Casinos in Sydney from the NSW Police. She was advised that “pursuant to a delegate of authority, by the Commissioner of Police, I have directed your exclusion from the Star and Crown Casinos, Sydney under s 81 of the Casino Control Act 1992.” She was further advised that this exclusion was to take effect immediately and cannot be appealed. This direction was signed by the Delegate Stuart Smith APM, Assistant Commissioner Commander. The Star and Crown Sydney have been advised of his decision and the exclusion order had been issued in accordance with s 79 of the Casino Control Act.

38. This notice of direction informed the plaintiff that pursuant to s 79 of the Casino Control Act, she is prohibited from entering or remaining on the premises of the Star and Crown Casinos while this order remains in force. The letter stipulated that this order remain in force from Friday 23 April 2021 until such time as it is revoked by the person who gave the order.

39. Section 79 of the Casino Control Act authorises the Casino operator or the person at the time being in charge of the Casino to issue an exclusion order in writing to prohibit a person from entering or remaining in a Casino. The plaintiff has acknowledged that she received a copy of this order. The Casino operator is obliged to, as soon as practicable after the exclusion order is given to a person, cause the notice of order to be given to the Commissioner of Police. Sections 80(1A) and 81(7A) both prohibit an exclusion order given by direction of the Commission of Police being challenged in any Court or Tribunal. More specifically the exclusion order may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court or tribunal in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus.

40. While s 80(1A) refers to the Independent Liquor and Gaming Authority constituted under the Gaming and Liquor Administrative Act 2007 and the Commissioner of Police, it does not refer to a Casino operator.

41. The statement of claim and the amended statement of claim are to be dismissed on the basis that they do not disclose a reasonable cause of action as there is no viable cause of action available in this court.

Leave to replead

42. I am now required to exercise my discretion as to whether the plaintiff should be given leave to replead.

The defendant’s submissions

43. The defendant’s position is that leave should not be granted to replead and refers to the Court of Appeal decision in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-537 per Kirby P (Hope JA and Samuels JA concurring):

“… the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out. … If such a viable cause of action could be found, although not stated properly in the statement of claim, it could give rise to leave to amend and the avoidance of the peremptory termination of the litigation sought by the respondent. [sic]”

44. In oral submissions, the defendant submitted that the plaintiff should not be permitted to replead and there was no utility in giving the plaintiff the chance to seek legal advice as there “isn’t a triable case in any view of the world” (T17.15-16) It was further submitted that there was nowhere to move, because the legislation does not allow it. Aside from the written submissions of the defendant, the Court’s determination of each of the bases on which the defendant puts its case will have regard to the overriding purpose in s 56 of the Civil Procedure Act, as informed by the considerations set out in ss 57-60 of the Civil Procedure Act.

45. This is not a case in which, with appropriate amendment of the pleading and a little assistance from the court, a viable cause of action could be found: see Wentworth at 536-537. Rather, this is a case where no viable cause of action exists on the facts. The Court ought not allow any amendment to the pleading as any such indulgence would be an exercise in futility.

The plaintiff’s submissions

46. The plaintiff submitted that she was banned by the Casino but not by the actual police (T12.43-44). No reason was given as to why she was banned. There is no start date. There is no end date (T13.4). The plaintiff says she was orally told by Andrew McGregor that the ban was for one year. That has now expired but she is not allowed back in the Casino and this is unfair (T14.50). She can get legal advice but the cost is the main issue (T14.41-42). The reason the plaintiff wants to come back into the Casino is actually to recover her losses (T14.44-45).

Resolution

47. The plaintiff was advised a number of times that she did not have a viable cause of action by the defendant’s solicitors and that she should seek legal advice. She had the opportunity to seek legal advice but did not do so. This Court is prohibited by legislation from granting relief in relation to an exclusion order. In the exercise of my discretion I am not minded to give the plaintiff another opportunity to replead her statement of claim as she does not have a viable cause of action. This is because she is prohibited by virtue of ss 80(1A) and 81(7A) of the Casino Control Act from taking any legal action in a Court, including this Court, or Tribunal.

Result

48. The result is that the proceedings are dismissed pursuant to UCPR 13.4(1)(b).

The Court Orders:

1. The proceedings are dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) 13.4(1)(b).

2. The plaintiff is to pay the defendant’s costs.

**********

Decision last updated: 25 July 2022