Richardson v Star Casino
[2024] QCAT 60
•6 February 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Richardson v Star Casino [2024] QCAT 60
PARTIES:
MELISSA ANN RICHARDSON (applicant)
v
STAR CASINO (respondent)
APPLICATION NO/S:
GAR242-22
MATTER TYPE:
General administrative review matters
DELIVERED ON:
6 February 2024
HEARING DATE:
11 May 2023
HEARD AT:
Southport
DECISION OF:
Member Carrigan
ORDERS:
1. The Tribunal orders that the decision of the Respondent made on 17 May 2022 to issue an Exclusion Notice to the Applicant is confirmed.
2. The Tribunal orders that the Application to review a decision filed by the Applicant in the Tribunal on 16 June 2022 is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Review of decision to exclude applicant from casinos – allegation that the applicant was a problem gambler
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 19, s 20, s 24
Casino Control Act 1982 (Qld) s 3, s 91A, s 92, s 93A, s 97
Gaming Machine Act 1991 (Qld), s 261C
Keno Act 1996 (Qld), s 154DWagering Act 1998 (Qld), s 216D
Ainsworth v Albrecht (2016) HCA 40
APPEARANCES & REPRESENTATION:
Applicant:
Mr N Williams, Solicitor.
Respondent:
Mr J Toleafoa, Group Manager-Star Gambling at the Star.
REASONS FOR DECISION
Melissa Ann Richardson (‘the Applicant’) has commenced these proceedings in the Tribunal seeking to review the decision made 17 May 2022 by Star Casino (‘the Respondent’) to exclude her from the Staff Gold Coast Casino, Broadbeach and the Treasury Casino, Brisbane, for a period of five years from that date.
The Respondent had decided to exclude the Applicant on the basis that it believed that there were reasonable grounds the Applicant was a “problem gambler” within the meaning of the Casino Control Act 1982 (Qld) and other related legislation.[1]
[1]The "other related legislation" is the Gaming Machine Act 1991 (Qld), s 261C; Keno Act 1996 (Qld), s 154D; and Wagering Act 1998 (Qld), s 216D.
The Applicant says that the Respondent had no reasonable grounds to determine that she was a “problem gambler”.
The Applicant seeks orders from the Tribunal to set aside the decision of the Respondent and to reinstate the Applicant’s “Rewards Points” which she had derived from her loyalty program as a member of the Casino Star Club.
Background Facts
The Applicant was born on 15 August 1971 and was aged 50 years as at the date of her exclusion from the Casinos by the Respondent.
The Applicant was a Platinum member of the Star Club which she says is the Star Casino’s membership loyalty rewards program. The Respondent says the next highest tier of Star Club membership is “Diamond” which is a membership tier that is by invitation only. Details of the length of time the Applicant had been a member are not provided in the evidence before the Tribunal. However, the Applicant says that she played poker “on a semi-professional basis”.
On 8 March 2022 the Applicant had been gambling at the Start Casino, Broadbeach and says that she had “a large win”. She wanted to cash out her winnings and have those funds sent to her by an electronic funds transfer rather than having the risk of carrying a large sum of money. She said that she was “emotionally buoyed by her good fortune” when she was having a conversation at the Cashier’s desk. She says that she was not afraid of spending all of this money nor was she at risk of losing it back to the Casino on that occasion.
The “R G Patron Profile Report” (‘Patron Profile’) for 8 March 2022, which is part of the records of the Respondent, provides the following version of events from Erica Allen, Cashier Services Supervisor;
When cashing out she asked if we could send the money to her bank account as she didn’t want to spend it all, and that she was worried that she couldn’t control her spending and didn’t want all-cash on her. We explained that while we couldn’t do that we could give her a cheque, which she seemed happy about.
Later in the Patron Profile Erica Allen records that a second Respondent employee, Philip Lovell, was present and had a conversation with the Applicant to the following effect;[2]
Philip spoke to Melissa about our conversation, and she passed it off as she was concerned with the amount of cash on her person, not the gaming aspect.
Melissa was quite forthright with our cashier about concerns over her gambling habits, yet when approached passed it off as nothing.
I believe Melissa might need to talk with someone about spending habits but will need a delicate approach to get her to open up.
[2]Respondent’s Bundle of Documents filed on 31 August 2022 at Document 7.
The Respondent contends that her statements to the Respondents personnel were not made “in jest” but that the Applicant had real concerns that she could not control her gaming and would spend the funds.
The Applicant provided to the Tribunal at the hearing a document dated 16 March 2022 issued by the Respondent described as “Promotion Disbursement Authority” which appears to record payment to her of winnings of $1565.00 on being placed 18th in the “GL Champs Big Wave” tournament.[3]This document appears to be unrelated to the earlier events of 8 March 2022.
[3]Exhibit 7.
From the evening of 21 March 2022 through to the morning of 22 March 2022 the Applicant says she was at a Poker Tournament and then playing pokermachines at Star Casino. Her involvement in the Tournament and the pker machines was a total of approximately nine (9) hours “with multiple rest breaks”. She says that for a “short period” before and after the Poker Tournament she played the Electronic Gaming Machines (‘Pokies’) with her Star Club membership card inserted into the machines.
The Patron Profile records that on 21 March 2022 through to 6:12 am on 22 March 2022 the Applicant had spent 12:36 hours gaming on poker machines in the Casino.[4]
[4]Respondent’s Bundle of Documents filed on 31 August 2022 at Document 7.
Later, during the morning of 22 March 2022, she had a telephone discussion with Start Casino personnel who requested her to attend a meeting at the Casino. She says;
I believed at the time that this meeting was for the purposes of my Platinum Status (High Roller) Star Club membership.
The Applicant subsequently attended the meeting on 22 March 2022at Star Casino. She says she did not know or understand that meeting was a “Welfare Check” by the Casino personnel. During that meeting the Applicant says she was asked a series of questions and she says she answered them;
with what I thought they wanted to hear to preserve my status as a high roller. Had I known the true nature of that meeting many of the answers I would have given to the Star would have been drastically different.
She says that the discussion was about her background with gambling, her wins in poker exceeding her losses from other games; her family’s knowledge of her gambling that while they know she plays poker she did not “actively seek to inform them that I play the Pokies.” She also says that during the meeting there was discussion about;
(a)her recent gambling losses, including a single instance that due to user error when operating the Pokies she gambled more than she intended;
(b)the state of her assets and finances;
(c)at times she did find it difficult to stop gambling at Pokies;
(d)in the past she has made large wins while gambling only to lose it back to the Casino;
(e)she discussed what would be a “good strategy” for limiting her losses. She regarded this topic as a leading question and hypothetically said she thought she was satisfy the Casino by saying a $500.00 limit on Pokies and leaving a debit card at home;
(f)she says when she consumes alcohol she is more likely to spend more than she intends in gambling;
(g)she maintained that the amount of money she has lost has been offset by poker winnings and that even if they weren’t she would still be well within her allotted gambling budget; (her gambling budget was not disclosed in the evidence before the Tribunal Hearing.)
(h)she says that in the meeting she was told that such meetings occur because pulling a patron off the floor is embarrassing and the Star Casino did not want to do that.
The version of these events by the Applicant differs from that of the Respondent. The Respondent maintains that the Applicant;[5]
declared that she had recently spent money excessively on gambling triggered by boredom, post-Covid lockdown excitement. In the same interview she remarked that the ideal budget for gambling was $500 and anything over that was a waste of money. Gambling activity was well in excess of her ideal budget. Even though she declared not having any financial concerns her comments about excessive spending and difficulty in stopping gambling are serious and are consistent with her original statement.
[5]Respondent’s Bundle of Documents filed on 20 March 2023 at Document 1 paragraph 4.1.
The Respondent considered the Applicant was expressing genuine concerns about controlling her spending. The Patron Profile contains an extensive record of that interview which occurred on 22 March 2022 at 6.36 pm[6] and contains detailed information provided by the Applicant including;
[6]Respondent’s Bundle of Documents filed on 31 August 2022 at Document 7.
(a)That she works as a mental health professional at a school in Victoria, was on contract for 4 days per week but currently has taken a year off;
(b)That she did not work for a long time due to her marriage and was divorced 5 years ago;
(c)That she returned to work after separation and when Covid first began the work itself became very challenging and she decided not to renew her contract and had taken the time off;
(d)Her plan was to continue the break at least till Easter;
(e)She has options to be contracted again in August in Melbourne, or if she wants, she can pick up agency work in any State of Australia;
(f)She had recently bought an apartment at the Gold Coast, hence her increased gaming activity at Star Casino. She is planning to retire in the Queensland; however, will travel between Victoria and Queensland because all her family still live in Victoria;
(g)She has two daughters (18yo & 14yo) who live with their father in Melbourne. Her daughters recently visited her in the Gold Coast;
(h)She says that her family knows she plays poker but she doesn’t let them know she also plays Pokies;
(i)She said she had always been a gambler. She worked in the industry a long time ago when they first introduced gaming machines in Melbourne. Gambling had been part of her life. She said she always wanted to be a professional poker player; she said her record so far is 30 out of 35 winning. She participated in the recent poker tournament at SGC and played in a team which came second. She said that poker to her is like a sport, and she enjoys doing it.
(j)She said that her recent spending on gambling had been excessive. She reflected on reasons and potential triggers which included boredom (being alone at the Coast), excitement of the post-lockdown, and to gamble with friends visiting from Melbourne.
(k)She felt that her ideal budget to play the electronic gaming machines (‘EGMs’) would be around $500.00 per visit and that anything over $500.00 would be a waste of money. She felt a limit of $500.00and would leave her credit card at home would be sufficient, She will be avoiding playing machines when she is waiting around for a seat on the poker table.
(l)In discussions with her friends, they advised her to cut up her credit card. She said she used to have two cards and now she has one which she will be leaving at home.
(m)She denied any finance concerns due to gambling and stated that she is a shareholder in a business in Melbourne and she owns property in both Victoria and Queensland. She said that she will not be selling houses to gamble or losing to a point she cannot feed herself.
(n)She acknowledged at time she found it difficult to stop gambling at the machines, especially when she has a friend visiting and they have a few drinks while gambling. She referred to times she continued to play after large wins and played back the winning amount in the machine.
(o)She said she normally plays poker, and started to play more machines when poker was not available. She also said that drinking when playing on machines is one of the reasons she has ended up spending more than she intends.
(p)She said she previously took a 6-month break from the venue to stop gambling on machines, but then slowly returned to gambling in the venue after 6 months.
(q)She said she felt she had done the damage in terms of spending an excessive amount, but she stated she could afford the losses but just felt she had wasted some money. She commented that she had spent an excessive amount but would probably not do so again. She said she was aware of her losses and would not be betting at the same level. She said that she could make changes to her gambling behaviour to reflect the limit she nominated and welcomed Casino personnel to call her if her gambling record told a different story about her gaming activity and time on-site, and understood that if further concerns were to occur “she will offer options to self-exclude”.
On 11 May 2022 the Applicant attended the Star Casino to gamble in the premium area known as the “Sovereign Room”. She says she was emotionally distressed due to events relating to the breakdown of her marriage. She says that distress caused her to be short tempered that evening when approached by Casino personnel who requested the Applicant to accompany them to another location in the Casino. She says she told them she did not want to talk to them and to leave her alone. She says she became irritated, but the Casino personnel insisted that she accompany them, and she states;
I regretfully lost my temper and conducted myself in an unbecoming manner and was consequentially asked to leave the premises.
The Patron Profile records this incident on 11 May 2022. It records after a review of her gaming activity which showed that the Applicant has not been gaming within the limits previously nominated. Her gaming activity from 23 March 2000 showed that she had sustained a loss of $8,800.00. Her average loss per visit was $3,300.00 recorded on the 7, 18, and 20 April 2022. The Respondent says that it decided to undertake a “Welfare Check” by interviewing the Applicant.
The Applicant was approached by Casino personnel and asked to accompany them to a private area for a conversation. She advised that she does not want to talk and wants to continue gaming. The Applicant was given the option to cease gaming and to contact the Casino personnel to schedule a meeting before returning to the Casino. The Applicant was loud and was presenting an aggressive tone and body language. The request was made for her to leave the gaming area and contact the Casino office at a later date. A security officer was requested to attend and assist the Applicant. The Applicant asked the Casino personnel if she could have her money back that she had put it in the machine that night. It was explained to her that the Casino cannot return any lost money. Further requests were made for the Applicant to leave the Casino with responses from the Applicant in derogatory language towards the Casino personnel. Security arrived and the Applicant was then again asked to leave.
On 12 May 2022 the Applicant says she felt “embarrassed” and called the Casino to offer her apologies. However, the Patron Record does confirm telephone a call with the Applicant following up on the incident from 11 May 2022. That Report states;
During our conversation, Ms Richardson shared that she had a bad day as her ex-husband was abusing her and wanting her to sign a paperwork for their joint business which was not in her best interests. Ms Richardson shared that she visited the casino hoping to escape and relax by gambling alone but was approached by staff for conversation. Ms Richardson wanted to send her apology to our staff which I agreed to pass on to our team. Ms Richardson was reminded that this incident is under review and that as she cannot enter our properties until further notice from our team.
The Respondent maintained the “Star’s Casino Management System” extracts of which recorded the Applicants gambling in the Casino as follows;
(a)in the period from 14 January 2021 until 11 May 2022 the Applicant had attended the Casino on;
(i) five (5) occasions between 14 January 2021 and 21 December 2021;
(ii) forty-six (46) occasions between 8 January 2022 and 11 May 2022. (A period of approximately four (4) months); and
(iii) on those fifty-one (51) occasions she played the video machine, reel machine and the table during which she had wagered a total of $734,805.34 for a net patron loss of $60,213.74;[7] and
[7]Respondent's Statement of Reasons filed at paragraph 13 and at Document 8.
(b)in the period from 27 March 2022 to 11 May 2022 the Respondent recorded the following losses by the Applicant;[8]
[8]Respondent's Statement of Reasons filed at paragraph 13.
(i) 27 March 2022 $816.80
(ii) 5 April 2022 $452.70
(iii) 7 April 2022 $3,803.50
(iv) 18 April 2022 $2,938.00
(v) 20 April 2022 $3,289.50
(vi) 24 April 2022 $1,134.00
(vii) 5 May 2022 $2,650.90
(viii) 6 May 2022 $1,166.25
(ix) 11 May 2022 $948.
(c)between 5 March 2022 and 12 April 2022, the Applicant entered twelve (12) Poker tournaments at the Casino using her Star Club Membership card. On each of those occasions except for Monday, 14 March 2022, the Applicant was unplaced in the tournament and did not win any money by the end of the tournament, having lost her “Buy In” wager. On 14 March 2022 the Applicant paid $440.00 to “Buy In” and was placed second in the tournament winning $3864.00.
(d)After playing in a Poker tournament at the Casino from 1:30pm to approximately 4:30pm, the first occasion on which the Applicant used her Star Club Membership card to play on an EGM was at 4.53pm on 21 March 2022. The Applicant ceased playing the EGMs at 5.28am on 22 March 2022. While this period was for a total duration of 12 hours 36 minutes it was recorded that her actual playing time on each EGM during that period was for a total of 9 hours and 32 minutes. Respondent’s Records indicate that during that time the Applicant sustained a loss of $13,465.40.
(e)The Respondent says that from 5 March 2022 to 12 April 2022 the Applicant had;[9]
(i) Poker winnings of $3,497.00; and
(ii) Poker gaming losses of $10,837.43 which does not include any “Buy In” wagers paid to enter tournaments.
[9]Respondent's Amended Statement filed 20 March 2022 at paragraph 4(1)(4).
On about 17 May 2022 the Applicant was issued with an Exclusion Direction barring her attendance at the Star Casino. The Applicant said that she was very upset with being given an Exclusion Directions;
as it has effectively dashed my aspirations of playing poker professionally as well is effectively prohibiting me from maintaining my Star Club membership status.
The Applicant then had a telephone conversation with Casino personnel requesting the email address of supervisors and enquiring why she was excluded. The Patron Profile Report records the fact she made the telephone call and states that;
Ms Richardson was aggressive over the phone, saying she is not an idiot. Then Ms Richardson hung up.
As a result of the exclusion the Applicant says that the “not insubstantial number of rewards” which she had accrued through her Star Membership are no longer able to be exercised or maintained by her. She understands that if the membership lapses all accrued rewards also lapse.
On 16 June 2022 the Applicant filed in the Tribunal an Application to review a decision made by the Respondent on 17 May 2022 to exclude the Applicant from the Star Casinos on the Gold Coast and in Brisbane.
The Tribunal’s Jurisdiction
The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or by an “enabling Act”.[10]
[10]QCAT Act, s 9.
A Casino Operator or a Casino Manager may give a person an Exclusion Direction prohibiting the person from entering or remaining in the Casino if it believes on reasonable grounds the person is a problem gambler.[11]
[11]Casino Control Act 1982 (Qld), ss 92, 93A.
A person who has been given an Exclusion Direction may apply to the Tribunal for a review of the decision to give an Exclusion Direction.[12] Accordingly for the purposes of these proceedings the Casino Control Act 1982 (Qld) (‘CC Act’) is the “enabling Act”.
[12]Ibid, s 91A(2).
The Tribunal in exercising its review jurisdiction is to decide the review in accordance with the QCAT Act and the CC Act. The Tribunal may perform the functions conferred on the Tribunal by both those Acts and has all the functions of the decision-maker for the reviewable decision being reviewed.[13]
[13]QCAT Act, s 19.
the Tribunal must hear and decide the review by way of a fresh hearing on the merits to produce the correct and preferable decision.[14] the Tribunal provided to the parties a hearing in the Tribunal on 11 May 2023.
[14]Ibid, s 20.
the Tribunal in conducting the review of the reviewable decision may;[15]
[15]Ibid, s 24.
confirm or amend the decision; or
set aside the decision and substitute its own decision; or
set aside the decision and return the matter for reconsideration to the decision-maker of the decision, with directions the Tribunal considers appropriate.
Statutory Provisions Relating to the Exclusion Direction
Apart from the CC Act there are a number of other Queensland statutory enactments relevant in these proceedings.[16] However, reference will be made to the CC Act in the course of this decision. Other statutory enactments overlap with that Act. As the Applicant submits, the relevant act in this matter is the CC Act.[17]
[16]See the Keno Act 1996 (Qld), ss 154F, 292(a); Wagering Act1998 (Qld), ss 216F, 297; Gaming Machine Act 1991 (Qld), ss 295, 261E.
[17]Applicant's Submissions filed 29 November 2022 at paragraph 3.
The CC Act has as its object ensuring that, on balance, the State and the community as a whole benefit from casino gambling. That balance is to be achieved in several ways including ensuring the probity of those involved in the conduct of the casino gambling and minimising the potential for harm from casino gambling.[18]
[18]CC Act, s 3.
A casino operator or a casino manager may give an Exclusion Direction provided they believe on reasonable grounds that a person is a problem gambler.[19]
[19]Ibid, ss 92, 93A.
A problem gambler means a person whose behaviour relating to gambling;[20]
(a)is characterised by difficulties in limiting the amount of money or time the person spends on gambling; and
(b)leads to adverse consequences for the person, other persons or the community.
[20]Ibid, Schedule Dictionary.
An Exclusion Direction has effect when it is given to the person concerned and ending on, as is the case in these proceedings, the day that is five (5) years after the day the direction is given to the person.[21]
[21]Ibid, s 97.
The Applicant’s Submissions
The Applicant disputes she is a problem gambler. She says that she likes to play in Poker tournaments and gambles as a form of enjoyment and relaxation.
The Applicant submits that there are no “reasonable grounds” on which to issue an Exclusion Direction. The Applicant contends that;
(a)much of the information obtained by the Respondent was obtained under false pretence due to poor communications on the part of the Respondent. That fostered a misunderstanding in the mind of the Applicant.
(b)The information obtained is not reflected in the truth of the circumstances; and
(c)the tracking of wins and losses by way of the Star Club cards is fundamentally flawed in that it does not track wins and losses in table games. That accordingly would have the effect of presenting the Applicant's status in the worst possible light.
The Applicant further submits that there are two limbs to the definition of “problem gambler” in the Schedule Dictionary to the CC Act. These two limbs are whether her behaviour relating to gambling;
(a)it is characterised by difficulties in limiting the amount of money or time the person spends on gambling; and
(b)leads to adverse consequences for the person, other persons or the community.
The Applicant submits that the real issue is the first limb in (a) and appears to concede that the Applicant’s behaviour infringes the second limb in (b). In respect of the second limb the Applicant’s submissions state;[22]
For the purposes of these proceedings the Applicant concedes satisfaction of element b as the loss of even one dollar could satisfy the element of “Adverse consequence for the person”.
[22]Applicant’s Submissions filed 20 November 2022 at paragraph 30.
The Applicant disputes the first limb and submits that she has been well within her own budget with respect to gambling and has made this clear to the Respondent. For example, on 25 March 2022 she informed the Casino personnel at the alleged “welfare check” that:
she could afford the losses just felt like she has to waste some money.
The Applicant further submits that the information relied upon by the Respondent was fundamentally flawed for several reasons including that the Respondent should have known from its tracking system that the information was flawed. Accordingly, the flawed information cannot be the basis on reasonable grounds for a belief in accordance with the dictionary meaning of “problem gambler”.
The Applicant also submits that over a period of time her customer loyalty program (The Star Club membership) accrued benefits. Her exclusion has now resulted in the loss of accrued benefits. She submits that the Respondent should be compelled to either;
(a)reinstate the Applicant’s membership; or
(b)honour the accrued benefits; or
(c)provide to the Applicant a cash payment equivalent to the fair market value of the accrued benefits lost.
The Respondent’s Submissions
The Respondent submits that the Applicant was not informing her family of her gambling which is an indication that the Applicant is hiding the extent of her gambling and is an indication of being a problem gambler.[23]
[23]Respondent's Amended Statement filed 20 March 2022 at paragraph 4(1)(5).
While the Applicant may have said that her “recent spending had been excessive” and that the amount spent was well within her anticipated budget, the Respondent contends that meaning of the “excessive” should be construed to mean;[24]
exceeding what is usual, proper, necessary, or normal.
[24]Ibid, at paragraph 4(1)(6).
The Respondent then submits that a person who limits their gaming to their anticipated budget and otherwise gambles within their means would not describe their gambling as excessive. It further submits that the Applicant does not have a budget for her gambling and the Applicant has difficulties in limiting the amount of money or time she spends on gambling which, in the circumstances, is further indication of a problem gambler.
The Respondent says that it has not seen any evidence of assets or finances of the Applicant.[25] However, the respondent relies upon statements by the Applicant that she has discussed her gambling with friends who have advised her to cut up her credit card, which leads to the presumption that the Applicant is spending more than she can afford or cannot stop gambling.[26]
[25]Ibid, at paragraph 4(1)(9).
[26]Ibid, at paragraph 4(1)(9).
The Respondent also relies on statements by the Applicant acknowledging that she finds it hard to stop gambling and her friends had given her strategies to limit her gambling. It submits that these statements are strong indications that the Applicant has a problem limiting the time and amount she spends gambling and has mentioned this problem to her friends.[27]
[27]Ibid, at paragraph 4(1)(10).
The Respondent further submits that the requirement for it to have “reasonable grounds”;[28]
means that there is the existence facts which are sufficient to induce that state of mind in a reasonable person. In other words, that a reasonable person in the same circumstances would consider there was a reasonable basis for the decision.
[28]Ibid, at paragraph 6(2).
It further submits that there are facts which are sufficient to induce that state of mind by having regard to: the reports and observations referred to above; information available on the Star Casino Management System and Poker Management System as well as by reference to the “Queensland’s Responsible Gaming Manual – Casinos”; and the recommendations of Casino personnel.[29] For these reasons, the Respondent submits that it has a reasonable belief that the Applicant is a problem gambler.
[29]Ibid, at paragraph 6(3).
The Respondent further submits that by reason of the Applicant being excluded from the Casino, that by paragraph 38 of the Star Club Terms and Conditions the Applicant’s benefits lapsed on her being excluded. Further, it contends that the Applicant cannot request the Tribunal to review the decision of exclusion of benefits.
Is the Applicant a Problem Gambler?
The issue to be determined is whether the evidence establishes the criteria in the two limbs of the definition of “problem gambler” and whether the Tribunal considers there are grounds for a reasonable belief the Applicant is a problem gambler.
The Notice of Exclusion Direction is in evidence.[30] There is no challenge to the validity of that Notice. The CC Act prescribes certain formalities for that Notice and there is no evidence or submissions before the Tribunal that those formalities were not complied with by the Respondent in issuing the Notice to the Applicant. The Tribunal proceeds on the basis that the Notice of Exclusion Direction dated 17 May 2022 is a valid Notice.
[30]Applicant’s Statement of reasons filed 31 August 2022 at Document 1.
The first limb of the definition of “problem gambler” requires consideration whether the Applicant’s conduct in gambling is characterised by difficulty in limiting the amount or time spent gambling.
The Applicant denies she has difficulty in limiting the amount or time spends gambling. This denial is not supported by her statements to Casino personnel on 8 March 2022 when she approached the Cashier’s Desk to cash in a “large win”. In statements to the Cashier, she says she was not afraid of spending all of this money (the large winnings) nor was she afraid of losing it back to the Casino. The Respondent’s evidence is slightly different in the Patron Profile, which records her saying she did not want to spend all of it, she was worried she could not control her spending, and she did not want all the cash on her. She had concerns about her gambling habits. The Applicant says that these comments were “in jest” and passes it off as her concern about having that amount of money on her not her gambling. To the extent that there is a conflict between the parties’ versions of this conversation the Tribunal prefers and accepts the evidence in the Patron Profile being a contemporaneous note of the conversations on 8 March 2022.
On 22 March 2022 the Applicant had a meeting with Casino personnel. The Tribunal is aware of the Applicant’s contention that she “misunderstood” the purpose of this meeting and said had she known the real purpose she would have given different answers in the course of that interview. Notwithstanding the Applicant’s “misunderstanding” she has not provided to the Tribunal any evidence as to what she contends would have been her “real answers” had she known the true purpose of that meeting. The result is that the only evidence from the Applicant available to the Tribunal is stated in the Applicants material filed in the Tribunal including the Outline of Submissions.[31] In that evidence the Applicant has made a number of statements about her gambling habits with money and time and has stated;
(a)she gambles more than she intends;[32]
(b)she finds it difficult to stop gambling on the Pokies;[33]
(c)she has made large wins only to lose them back to the Casino;[34]
(d)a strategy would be to have a limit of $500.00 for Pokies and leave the debit cards at home;[35]
(e)with alcohol she is more likely to spend more than she intends on gambling;[36]
(f)money lost has been offset from her Poker winnings.[37] (This statement is contradicted by the Respondent’s records which record that in twelve (12) Tournament poker games only on one occasion she had a win with a payment of $3864.[38] In approximately the same period playing the Pokies she had a loss of $13,465.40).[39]
[31]Outline of Submissions filed 20 November 2022 particularly at paragraphs 19-23.
[32]Ibid, at paragraph 15(a).
[33]Ibid, at paragraph 15(c).
[34]Ibid, at paragraph 15(d).
[35]Ibid, at paragraph 15(e).
[36]Ibid, at paragraph 15(f).
[37]Ibid, at paragraph 15(g).
[38]Respondent's Amended Statement filed 20 March 2022 at Document 2.
[39]Ibid, at Document 3.
The Respondent’s evidence of the interview on 22 March 2023 is contained in its Patron Profile which records a far more wide-ranging interview than that disclosed by the Applicant. In that record there are significant statements made by the Applicant which include the following;
(a)she presently does not have employment as a health professional in Victoria;
(b)she has been divorced for approximately five (5) years;
(c)she has two teenage daughters who reside with their father in Melbourne;
(d)while she has told her family members she plays poker, she has not told them that she pays the Pokies;
(e)she has always been a gambler and regards poker as a “sport”;
(f)her recent spending on gambling has been excessive;
(g)the triggers for gambling include boredom and post-Covid excitement;
(h)friends have advised her to cut up her credit cards. She previously had two credit cards but has now reduced that to one credit card and leaves it at home when she goes to the Casino;
(i)she acknowledged she finds it difficult to stop gambling on the EGMs;
(j)she says there have been occasions where following a large win she continues to play and loses the win back to the Casino;
(k)she says drinking while playing Pokies is one reason she ends up spending more than she intends;
(l)she has previously taken a six (6) month break from gambling on the machines but slowly returned after the expiration of six (6) months.
Where the evidence of the Applicant differs from that of the Respondent in relation to the events of 22 March 2023, the Tribunal prefers the evidence of the Respondent and accepts that evidence in the Patron Profile as referred to above.
The Applicant has produced evidence of her winnings being an amount of $1,565.00 as a result of playing poker in the “GL Champs Big Wave” tournament on 16 March 2022.[40] The Applicant says that her winnings from playing poker pay for her losses from playing the Pokies. Apart from her winnings of 16 March 2022 the Applicant has not provided any evidence of her winnings from playing poker. This statement is contradicted by the evidence in the Respondent’s records which provide as follows;
(a)between 14 January 2021 to 11 May 2022 the Applicant wagered $734,805.34 for a net patron loss of $60,213.22;
(b)between 5 March 2022 to 12 April 2022 the Applicant played poker on approximately 12 occasions and recorded one win and 11 losses. She won $3,864.00 on the one occasion but her poker losses for the period were $10,837.43 (not including the “Buy In” charge to join the tournament);
(c)on 21 March 2022 the Applicant played in a Poker tournament from 1:30 pm to 4:30 PM and then commenced playing in the Pokies through to 5:23 am on 22 March 2022. This was a period of approximately 12 hrs 36 mins. She sustained a loss of $13,465.00; and
(d)there is other evidence relating to her losses when and gaming at the Respondent’s Casino.
[40]Exhibit 7.
The Applicant has been a frequent visitor to the Respondent’s Casino and has participated in gambling on those occasions. That is not enough, by itself, to satisfy the first limb. She has on the occasion of 21 March 2020 engaged in gambling over a period of 12 hours 36 minutes resulting in a loss of $13,465.00. This is an extraordinary period of time to play the Pokies and is excessive. There is other evidence about the time the Applicant spends playing poker machines which has occurred on numerous occasions but for short durations. An analysis of those records[41] of the Respondent does not demonstrate the Applicant has difficulty in limiting time she spends on those gambling machines. The Tribunal is not satisfied in terms of the first limb that the conduct of the Applicant shows that she has difficulty in limiting the time she spends on gambling machines.
[41]Respondent’s Amended Statement filed 20 March 2022 at Document 3.
In considering whether the Applicant has difficulty in limiting the amount of money she spends on gambling there is evidence that in the period of approximately sixteen (16) months from 14 January 2021 to her exclusion she wagered $734,805.30. In that period she had a net loss of $60,213.74. However, most of the amount wagered, and the net loss, occurred in the period from 8 January 2022 to 11 May 2022, a period of approximately four (4) months. There is evidence that in a shorter period, for example 21 March 2022 to 22 March 2022, the Applicant sustained a loss of $13,465 playing the poker machines. There is other evidence of losses she has sustained. The Applicant has made statements on more than one occasion to Casino personnel that she has difficulty in managing her money while at the casino. Her friends had told her to leave her debit cards/credit cards at home. She has destroyed one credit card but keeps one credit card which she says she leaves at home when she goes to the Casino. The Applicant has told her families members that she plays poker but has not disclosed to them that she pays the poker machines. She has sustained considerable losses in playing the poker machines. The Applicant admits that that when she consumes alcohol she is prone to gamble more money than she intends. The Tribunal is satisfied on the evidence that the Applicant has difficulty in limiting the amount of money she spends on gambling. The Tribunal makes a finding in those terms, which is sufficient to satisfy the criteria relating to limiting the amount of money spent on gambling in the first limb of the definition of “problem gambler”.
As for the second limb much of the evidence already referred to is of relevance to a consideration of this matter. The issue however is whether that evidence leads to adverse consequences for the Applicant, other persons, or the community.
Notwithstanding that the Applicant’s submissions appear to concede that her expenditure comes within this second limb, it is necessary for the Tribunal to consider the evidence in terms of the criteria specified in that limb. There is no evidence that the teenage daughters nor the ex-husband nor friends of the Applicant are impacted by her gambling. No community concerns have been raised on the evidence. The question really is whether gambling leads to adverse consequences for the Applicant.
So, what are the adverse consequences, if any? There is no asset/liability financial statement before the Tribunal to indicate whether the Applicants gambling is having an adverse effect on her finances. However, that is not the only test and adverse consequences have to be considered in terms of the evidence before the Tribunal. The Applicant has said that she does not have real concerns about her failure to control gambling and the amount of money which she spends on gambling. She told the Respondent that she has spent money excessively on gambling triggered by boredom, while being with friends, or by reason of her post-Covid excitement, although she has discussed a budget of $500 with leaving her credit card at home and considers any money spent over that budget a waste of money. The evidence is that she has exceeded that budget on many occasions. She says her comments about the budget were “in jest”. If the Applicant was not intending to fix a budget for herself of $500.00 then, on the evidence, she had no budget whatsoever for her gambling and would be financially unrestrained in her gambling. While she has said she has no financial concerns her other comments are consistent with her lacking control over her spending while gambling. This can be exacerbated by alcohol. The evidence points to a lack of communication, at least, with her family about her spending on poker machines or, at worst, she conceals this expenditure from family members. The Applicant’s friends have shown concern for the Applicant’s gambling habits and advised her to leave her credit cards at home. These matters indicate significant concerns that the Applicant’s gambling is having adverse consequences on her. Also, her friends’ concern for her gambling should be considered against evidence that the Applicant finds it hard to stop when playing poker machines, as has been illustrated by the events of 21 March 2022 through to the early morning of 22 March 2022. On that occasion the Applicant played poker machines for a period of approximately 12 hours in the course of which she sustained a loss of approximately $13,000. The Tribunal is satisfied that the Applicant’s behaviour relating to gambling has led to adverse consequences for her, and accordingly makes a finding of fact in accordance with those terms. By reason of this finding of fact, the Tribunal is satisfied that the Applicant’s behaviour while gambling satisfies the second limb of the definition of a problem gambler.
The CC Act refers to the belief on reasonable grounds of the “casino operator or casino manager” that a person is a problem gambler and should be excluded[42] While that may indicate a subjective view, as appropriate for the casino operator or casino manager, the proper construction and interpretation of s 93A of the CC Act requires an objective test. That test will take into account all of the relevant circumstances including the facts, explanation, and any other reasons given by the person whose gambling behaviour needs to be assessed.[43] The Applicant disputes she is a problem gambler but has been interviewed by Casino personnel on behalf of the Respondent. The versions of those interviews given by the Respondents records have been accepted by the Tribunal in preference to the evidence of the Applicant. In addition, there are records kept by the Respondent of the Applicant’s gambling while at the Casino using the Star Club Membership card. Those records are in effect unchallenged by the Applican save as to whether they correctly record her winnings. In the circumstances, there are reasonable grounds for the Respondent to form the belief that the Applicant was a problem gambler. Accordingly, the Tribunal makes findings that there are reasonable grounds for the Respondent to form the belief that the Applicant was a problem gambler.
[42]CC Act, s 93A.
[43]Ainsworth v Albrecht (2016) HCA 40.
By reason of the findings made in terms of s 93A, and the definition of “problem gambler” in the CC Act, the Tribunal orders that the decision of the Respondent made on 17 May 2022 to issue an Exclusion Notice to the Applicant is confirmed.
The Tribunal will dismiss the Application to review a decision filed by the Applicant in the Tribunal on 16 June 2022.
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