Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) - [2015] NTCA 4

Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2015] NTCA 4
PARTIES:SKYCITY DARWIN PTY LTD

v
GROOTE EYLANDT ABORIGINAL TRUST INCORPORATED (STATUTORY MANAGER APPOINTED)

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 6 of 2014 (21412262)
DELIVERED:  16 December 2015
HEARING DATES:  25 November 2015
JUDGMENT OF:  RILEY CJ, BLOKLAND and BARR JJ
CATCHWORDS:

PRACTICE AND PROCEDURE – Appeal – application for leave to appeal from Master’s interlocutory judgment ordering pre-action discovery against prospective defendant pursuant to r 32.05 – possible action based on first limb of Barnes v Addey – applicant for leave contended evidence insufficient to establish reasonable cause to believe that requisite knowledge element might be made out – Court satisfied that knowledge might be made out – Master’s decision interlocutory, in a matter of practice and procedure – applicant failed to establish that decision was wrong or attended with sufficient doubt as to warrant leave to appeal – no substantial injustice – application dismissed.
Supreme Court Rules, r 32.05.
Supreme Court Act, s 53(2) & (3).
Apache Northwest Pty Ltd v Newcrest Mining Pty Ltd (2009) 182 FCR 124; Baden and others v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509; [1992] 4 All ER 161; Farah Constructions v Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Grimaldi v Chamelean Mining NL and Anor (No 2) (2012) 200 FCR 296, referred to.
Benchmark Certification Pty Ltd v Standards Australia International and anor [2004] FCA 1489; (2005) 212 ALR 464; George v Rockett (1990) 170 CLR 104; Iskandar v Merpati Nusantera Airline (No. 2) (2006) 16 NTLR 22; K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312; Mercantile Mutual Insurance (Australia) Ltd v Household Financial Services Ltd, unreported, 22 May 1997, matter 5967 of 1994, Supreme Court of Victoria, Court of Appeal; Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1; Northern Territory of Australia v GRD Kirfield Ltd & Anor [2003] NTCA 01; Northern Territory of Australia v Roberts [2009] NTCA 5; Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728; Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1; Wright Engineers Pty Ltd and Anor v BTR Trading (Qld) Pty Ltd and Anor [1987] NTCA 4, applied.
REPRESENTATION:
Counsel:
Applicant:T W Anderson
Respondent:  S Brownhill SC
Solicitors:
Applicant:Ward Keller
Respondent:  Roussos Legal Advisory
Judgment category classification:    B
Number of pages:  18

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2015] NTCA 4
No. AP 6 of 2014 (21412262)
BETWEEN:

SKYCITY DARWIN PTY LTD

Appellant

AND:

GROOTE EYLANDT ABORIGINAL TRUST INCORPORATED (STATUTORY MANAGER APPOINTED)

Respondent

CORAM: RILEY CJ, BLOKLAND and BARR JJ
REASONS FOR JUDGMENT
(Delivered 16 December 2015)
THE COURT:

Rule 32.05 of the Supreme Court Rules deals with obtaining discovery from a prospective defendant, or ‘pre-action discovery’ as it is commonly called.
On 14 August 2014, the Master made an order under r 32.05 requiring the applicant to give pre-action discovery of documents relating to, inter alia, the gambling activities of Rosalie Lalara at the Skycity Darwin Casino (“the Casino”) and the ‘high roller’ status accorded to her by the applicant under its loyalty program.[1] The applicant immediately applied to this Court for leave to appeal from the Master’s interlocutory judgment and formal orders.[2] The application for leave to appeal was heard by a single judge, who dismissed the application.[3] After that refusal, the applicant exercised its right under s 53(3) Supreme Court Act to have the application determined by a Court of Appeal consisting of three judges.
The only ground of appeal pressed by the applicant is as follows:[4]
The Master erred in finding that there was a positive basis to believe that it might be established that the Applicant had the requisite knowledge that Ms Lalara was gambling with and losing money misappropriated from the respondent at its casino in Darwin.
Application for leave to appeal – principles
The Master’s interlocutory judgment[5] was a discretionary judgment in relation to a matter of practice and procedure.[6] In general, in an application for leave to appeal from a discretionary judgment, it must be shown that the judgment appealed from is either wrong, or at least attended with sufficient doubt so as to warrant the granting of leave. Further, if the judgment sought to be appealed is a discretionary judgment in a matter of practice and procedure, then, notwithstanding that error may be shown, leave may still be refused unless it can be shown that substantial injustice will be done by leaving the erroneous decision unreversed.[7]
The proposed ground of appeal in context
To properly understand the applicant’s proposed ground of appeal, it is necessary to consider r 32.05, and the respondent’s proposed cause of action.
Rule 32.05 provides as follows:-
32.05 Discovery from prospective defendant
Where:
(a)there is reasonable cause to believe that the Plaintiff has or may have the right to obtain relief in the Court from a person whose description he has ascertained;
(b)after making all reasonable inquiries, the Plaintiff has not sufficient information to enable him to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)there is reasonable cause to believe that the person has or is likely to have or has had or is likely to have had in his possession a document relating to the question whether the Plaintiff has the right to obtain the relief and that inspection of the document by the Plaintiff would assist him to make the decision,
the Court may order that the person shall make discovery to the Plaintiff of a document of the kind described in paragraph (c).
The Master ascertained that the present respondent’s proposed cause of action, based on Barnes v Addy,[8] was knowing receipt of trust property in breach of trust. The elements of that cause of action are:-
1.Trust property was disposed of in breach of trust;
2.The proposed defendant (applicant herein) received the trust property;
3.The proposed defendant had knowledge that the property was received in breach of trust.
Knowledge that property has been received in breach of trust may be established by any one of the following:[9]
1.actual knowledge;
2.wilfully shutting one’s eyes to the obvious;
3.wilfully and recklessly failing to make such inquiries as an honest and reasonable person would make;
4.knowledge of circumstances which would indicate the facts of the breach of trust to an honest and reasonable person.
Rule 32.05(a) refers to “reasonable cause to believe” (that the Plaintiff has or may have the right to obtain relief). In George v Rockett,[10] the High Court considered the conditions precedent to the issue of a search warrant under Queensland legislation[11] which referred to both of the expressions “reasonable grounds for suspecting” and “reasonable grounds for believing”. The Court noted that ‘suspicion’ and ‘belief’ are different states of mind.[12] After explaining that ‘suspicion’ is a state of conjecture or surmise where proof is lacking, and that the facts which can reasonably ground a suspicion may be quite insufficient to ground a reasonable belief, the Court made the following observations in relation to ‘belief’:[13]
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
The above extract is instructive because the expression “reasonable cause to believe” in r 32.05(a) has the same or a very similar meaning as the expression “reasonable grounds for believing” considered in George v Rockett. To believe something is to accept the truth of a proposition, rather than being undecided about that proposition or rejecting it. However, the proposition which the Court must have reasonable cause to believe under r 32.05 need not be the fact that the plaintiff has the right to obtain relief, but need only be the possibility, that the plaintiff may have the right to obtain relief. We agree, with respect, with the following observations of Emmett J in Benchmark Certification Pty Ltd v Standards Australia International and anor,[14] in relation to the corresponding Federal Court pre-action discovery rule:
The first prerequisite requires a consideration of the elements that are necessary to establish the putative causes of action relied upon to support the right to obtain relief. That will require the court to conclude, at least, that there is reasonable cause to believe that each of the elements of such a cause of action might be made out. The test for whether there is such reasonable cause for belief is an objective one. It is not necessary to prove that each of the elements exists. The rule contemplates only that there be reasonable cause to believe that an applicant may have a right to obtain relief. On the other hand, mere speculation that the relevant elements might exist is not sufficient. There must be some positive basis for the belief. …”.
As explained in [8] above, and with reference to the third and fourth bases for third party liability, knowledge that property has been received in breach of trust may be established by wilfully and recklessly failing to make such inquiries as an honest and reasonable person would make; or by having knowledge of circumstances which would indicate the facts of the breach of trust to an honest and reasonable person. Therefore, for the purposes of r 32.05(a), it is sufficient that the Court have reasonable cause to believe that the applicant may have wilfully and recklessly failed to make such inquiries as an honest and reasonable person would have made; or that the applicant may have known of circumstances which would have indicated the facts of the breach of trust to an honest and reasonable person. In either case, the respondent would need to identify facts or circumstances which would alert an honest and reasonable person to a possible breach of trust or which would cause such a person to make the appropriate enquiries.
Evidence before the Master
The Master summarized the evidence concisely as follows:[15]
[29]To put the submissions into context, I now summarise the evidence on the application. Firstly, the Plaintiff’s evidence is:-
·Between 1 January 2009 and 19 October 2012 a significant dissipation of Trust assets occurred, of the order of $6 million, much of which was by expenditure of money from its bank accounts and largely by cash cheques signed by Lalara;
·At all relevant times, and currently, Lalara has been a person of only modest financial means;
·Lalara was a regular gambler at the Casino;
·Lalara had gambled in excess of $1 million at the Casino;
·Lalara held a “high roller” or “platinum” gambler status at the Casino;
·Skycity provided certain details of Lalara’s gambling to the Regulator;
·Lalara’s gambling at the Casino was the subject of an investigation by the Regulator;
·As a result of that investigation Lalara was banned from the Casino.
[30]Skycity has also led evidence on the application, comprising the affidavit of Mr Morgan, which is summarised as follows:-
·Lalara was a member of the Casino loyalty program between 1 January 2009 and 30 April 2012;
·Skycity’s loyalty program consisted of members having different status levels which were based on the accumulation of points earnt based on the turnover of the member;
·Skycity’s loyalty program had criteria for admission of members to the different levels and “platinum” status was previously a level in the loyalty program;
·Lalara received pro forma letters from Skycity from time to time as a member of the loyalty program;
·Skycity has records of gambling turnover and specifically holds records indicating the turnover of money gambled by Lalara on electronic gaming machines but only on occasions when her loyalty program card was inserted in the machine;
·The turnover is recorded for particular gaming machines and for particular sessions;
·Skycity’s records do not distinguish the amount that Lalara won or lost on gaming machines or what she spent in gambling on gaming machines; the records are limited to the amount of money put into the machine as cash for each session of play plus whatever money was won while playing in that session;
·On 30 April 2012 Skycity banned Lalara from the Casino as directed by the Regulator.
The affidavit of Mr Morgan, referred to in par [30] of the Master’s reasons for decision, was read in opposition to the respondent’s application for pre-action discovery. The affidavit disclosed the nature of the evidence which the respondent might obtain by an order for pre-action discovery (and the limitations of such evidence). For example, the affidavit contained information in relation to the applicant’s loyalty program. Mr Morgan deposed that Ms Lalara was a member of the applicant’s loyalty program between 1 January 2009 and 30 April 2012,[16] as found by the Master. However, he also deposed that the applicant was not in possession of any membership application form submitted by Ms Lalara for membership of the loyalty program made between the dates referred to in the summons.[17] Mr Morgan stated his belief that Ms Lalara had first become a member of the Casino’s loyalty program prior to the applicant’s acquisition of the Casino from the MGM Grand Group in mid-2004. Mr Morgan was unable to say whether MGM Grand had received a completed application form for its loyalty program from Ms Lalara prior to the time of such acquisition, or, if such application form had been received, whether MGM Grand had retained it.[18] Even if an application form had been handed over by MGM Grand to the applicant in mid-2004, it would have been archived and destroyed after seven years in accordance with the applicant’s agreement with its archivist.[19]
When a member of the Casino’s loyalty program inserts his or her loyalty card into an electronic gaming machine, the turnover of that gaming machine is recorded for the particular session and is attributed to the member. A member accumulates points which entitle the member to certain benefits and rewards, which vary according to the tier of membership. There is a clear incentive for members to insert their loyalty cards in order to accumulate points, and thereby gain rewards and benefits, including elevation to a higher tier of membership.[20] The turnover attributable to each loyalty program member is reviewed by a Casino employee, generally each month. If the member meets the criteria for progression to a higher tier in the program, then the change in status is recorded and the member notified by mail.[21]
The evidence summarized by the Master in the second last dot point paragraph extracted in [12] above, to the effect that it was not possible to ascertain Ms Lalara’s wins or losses from her turnover records, has been corrected in an affidavit filed on behalf of the applicant in this Court.[22] In fact, the applicant is able to analyse its turnover records for Ms Lalara and derive the amount of her net loss or net win “at a particular time or over time”.[23] This new evidence is significant. There was evidence before the Master that Ms Lalara had gambled more than $1 million at the Casino over a period of some years. On the assumption that Ms Lalara had generally inserted her loyalty card in response to incentives to do so, and that her gaming turnover was recorded,[24] we conclude that the applicant’s records probably provide evidence of (1) most (if not all) of the dates on which Ms Lalara gambled on electronic gaming machines at the Casino, (2) her turnover on each machine she used, and (3) the amounts of her net losses and wins. Analysis of the applicant’s records would also reveal gambling patterns: the regularity and quantum of Ms Lalara’s losses, and whether there was anything unusual or remarkable about the amounts she gambled on one or more occasions such as might, on monthly review if not in some other way, put the Casino, its servants or agents on notice that the moneys Ms Lalara gambled with were not her own, and/or that some appropriate enquiries should be made.
The Master’s reasons for decision relevant to proposed ground
The Master had to determine whether, on the evidence, there was reasonable cause to believe that the respondent might have the right to obtain relief against the applicant. In relation to the applicant’s knowledge that the monies gambled by Ms Lalara may have been received in breach of trust,[25] the Master was satisfied that there was reasonable cause to believe that the applicant may have had the requisite constructive knowledge. The Master referred to K & S Corporation Ltd v Sportingbet Australia[26] as an example of the way in which knowledge as to a client’s circumstances and means on the part of those staff who dealt with the client gambler could be attributed to the corporate employer. The Master’s reasons were as follows:[27]
[21]Accepting that actual knowledge on the part of Skycity is not necessary, and that in appropriate circumstances knowledge of employees can be attributed to an employer for this purpose, I think that the available evidence can satisfy at least one of the categories of constructive knowledge in Baden in the substantive proceedings similarly as occurred in K & S Corporation Ltd v Sportingbet Australia (“Sportingbet”).
[22]In Sportingbet an employee electronically transferred $3 million from his employer’s bank account to the bank account of the defendant. At the time the employee was indebted to the defendant, for gambling debts, in the sum of approximately $2.7 million. The plaintiff employer claimed against the defendant under the second limb of Barnes v Addy. Actual knowledge was ruled out but the Court found constructive knowledge based at least on the last of the Baden categories as the defendant had wilfully and recklessly failed to make the enquiries that an honest and reasonable man would have made.
[23]In Sportingbet, much turned on the size of the payments and the knowledge of staff of the defendant of the circumstances of the employee and that he was unlikely to be have the capacity to make payments of that magnitude. Given that the amount gambled by Lalara was in excess of $1 million and given that she held a high loyalty program status and that turnover of loyalty club members was monitored by Skycity, the case demonstrates how the requisite knowledge on the part of Skycity may be able to be established. That is sufficient to satisfy the requirement on the current application as I am satisfied that, on that basis, the Plaintiff has a reasonable cause to believe that it may have the right to obtain relief against Skycity.
[24]In concluding this I remind myself that I am not currently determining the merits of the proposed substantive proceedings or whether the Plaintiff or Skycity will succeed there. To require determination of that would require me to do even more than to find a prima facie case which is not required for current purposes.

The Master correctly identified that the key to the court’s finding of constructive knowledge on the part of the employer in Sportingbet was the large amount paid in a single bank transfer, $3 million, to discharge a debt of $2,680,000. Sportingbet had refrained from making any enquiries at all. Moreover, the trial judge found that, if a member of Sportingbet’s management team had taken the simple step of looking at the company’s bank statements, it would have been clear that the client debtor had not made the large payment with his own moneys, but rather with the moneys of the plaintiff K & S Group. A general enquiry would have revealed that the client was not entitled to use those monies.[28]
While it can be seen that the facts in Sportingbet were far removed from the known facts in the present case, there is nonetheless reasonable cause here to believe that the requisite knowledge on the part of the applicant might be made out. That being the case, we consider that the pre-action discovery sought by the respondent would be of significant utility in assisting it to make a decision as to whether or not to commence a proceeding against the applicant; and, if the decision were to commence a proceeding, whether to commence in the Supreme Court or the Local Court.
The Master ordered that the applicant make discovery of documents which record or evidence the following:
(a)the dates and amounts of Rosalie Lalara’s gambling at Skycity Darwin Casino;
(b)the status of Rosalie Lalara as a “platinum player” or “high roller” or other special gambler status at Skycity Darwin Casino;
(c)the decision by the Defendant to offer to or confer upon Rosalie Lalara the status referred to in paragraph (b) above including any offer to or application made by her, and any consideration and/or assessment of such application and any consideration and/or assessment of her eligibility for the status referred to in paragraph (b) above.
(d)the Defendant’s policies, procedures or guidelines whereby an individual is offered, considered and/or assessed for eligibility for the status of gambler referred to in paragraph (b) above;
(e)the benefits, privileges, goods and/or services provided to or received by Rosalie Lalara in consequence of her status referred to in paragraph (b) above;
(f)the circumstances of an investigation by the Northern Territory Department of Justice (the Department) into the gambling of Rosalie Lalara at Skycity Darwin Casino;
(g)the findings, outcomes and/or recommendations of the investigation referred to in paragraph (f) above;
(h)the report prepared by the Defendant and provided to the Department in early 2012 concerning Rosalie Lalara’s gambling at Skycity Darwin Casino sought by the Department in its investigation referred to in paragraph (f) above;
(i)the decision by the Department directing the Defendant to ban Rosalie Lalara from attending upon and/or gambling at Skycity Darwin Casino; and
(j)the steps taken by the Defendant to implement the direction referred to in paragraph (h) above.
Arguments on hearing of the application for leave to appeal
In this Court, Mr Anderson of counsel for the applicant relies on the principle that there must be reasonable cause to believe that all of the necessary elements of a potential cause of action exist, and contends that there is not a positive basis to believe that the respondent might establish the requisite knowledge on the part of the applicant, its servants or agents. In terms of specific facts, Mr Anderson argues that the respondent cannot establish the applicant’s knowledge that Ms Lalara had access to the respondent Trust’s money or knowledge that Ms Lalara was gambling far more money at the Casino than her own means permitted. Mr Anderson contends that there is no basis to believe that the applicant had any idea of Ms Lalara’s means or that the applicant had any knowledge that Ms Lalara had access to the moneys of the Trust. Indeed, Mr Anderson contends that such evidence as was available is to the contrary.[29] For example, the evidence of Bradley Keith Morgan was to the effect that the applicant had no documents or records made prior to 16 March 2012 in which there was reference to Ms Lalara’s work address or employer, or to any involvement between Ms Lalara and the respondent, or to the source of funds used by her in the Casino’s gaming machines, or to any alleged misappropriation of funds by her.
The conclusion which Mr Anderson urged the Court to draw was that the respondent would be in no better position to determine whether it has a cause of action against the applicant if discovery is ordered. With respect, we disagree. Having regard to the matters explained by us in [15] and [18] above, we are of the view that the respondent would be in a very much better position to determine whether it has a cause of action against the applicant.
Ms Brownhill, senior counsel for the respondent, relies on many of the matters and circumstances which the Master took into account, but sought to emphasize in her oral submissions that the applicant knew, from its loyalty program membership records and from its personal identification of Ms Lalara, that she was an Aboriginal woman from a remote community (Angurugu) on Groote Eylandt. Those facts alone are not obviously relevant, but we consider that they could become relevant if a court had to consider whether the regularity and quantum of Ms Lalara’s gaming losses were such as to put the Casino on notice that the moneys with which she gambled were not her own. In this context, we accept the submission of Ms Brownhill that it would not be necessary for the respondent to prove that the applicant knew of the existence of the respondent Trust, only that the applicant knew that the moneys gambled by Ms Lalara belonged to another.[30]
We are mindful of the ‘beneficial’ nature of Rule 32.05 and its utility in enabling the court in an appropriate case to “penetrate obscurities and uncertainties in the interests of justice”.[31] The applicant is in possession of all relevant documents and information. Although there is some uncertainty as to one element of the respondent’s possible cause of action, we consider that such uncertainty will most probably be resolved by the pre-action discovery ordered.
The applicant has not established that the interlocutory judgment appealed from was wrong or attended with sufficient doubt as to warrant the granting of leave for its reconsideration on appeal. Moreover, we cannot see that substantial injustice will be done to the applicant by requiring it to give discovery of the documents ordered by the Master. We note that, with one exception,[32] the applicant is not required to disclose its documents other than those which relate to the gaming activities of the one patron. The affidavits of both Mr Morgan and Mr Mallett, relied upon to oppose pre-action discovery,[33] could also be characterised as affidavits providing further and better discovery. For example, Mr Morgan’s affidavit identified categories of documents, explained the applicant’s current loyalty program, and explained also the circumstances which account for Ms Lalara’s membership of the applicant’s loyalty program without the applicant having any completed application form in its possession or custody.[34] Finally, in terms of the searches and inquiries necessary to comply with the Master’s order, it would appear that the applicant would not have to do much more than it has already done.
Conclusion
The application should be dismissed. We will hear the parties as to consequential orders, including as to costs.

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[1]The precise terms of the discovery order are set out at par 2 of the Order made 14 August 2014, AB 91. The Master’s Reasons for Decision were published as Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) v Skycity Darwin Pty Ltd [2014] NTSC 28, delivered 17 July 2014.

[2] Supreme Court Act s 53(2).

[3] Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2015] NTSC 47.

[4] Proposed ground 4e, AB 177.

[5] See Apache Northwest Pty Ltd v Newcrest Mining Pty Ltd (2009) 182 FCR 124 at [22] - [26]. Flick J there described a decision under the comparable Federal Court rule as “unquestionably interlocutory”.

[6] Mercantile Mutual Insurance (Australia) Ltd v Household Financial Services Ltd, unreported, delivered 22 May 1997 in matter 5967 of 1994, Supreme Court of Victoria, Court of Appeal, per Winneke P, Hayne JA and Ashley AJA agreeing.

[7] Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1 at 8, per O’Leary CJ, at 11 - 12, per Nader J, at 18 - 19, per Asche J; Wright Engineers Pty Ltd and Anor v BTR Trading (Qld) Pty Ltd and Anor [1987] NTCA 4; Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1 at 5, per Asche CJ; Northern Territory of Australia v GRD Kirfield Ltd & Anor [2003] NTCA 01; Iskandar v Merpati Nusantera Airline (No. 2) (2006) 16 NTLR 22 at [16]; Northern Territory of Australia v Roberts [2009] NTCA 5 at [2].

[8] Barnes v Addey (1874) LR 9 Ch App 244. The Master’s decision at [15] referred to the second limb of Barnes v Addey. However, on the hearing of the application in this Court, senior counsel for the respondent clarified that the respondent actually relied and continues to rely on the first limb of Barnes v Addey, the shorthand for which is ‘knowing receipt’ of trust property: K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312 at [12]. This did not affect the parties’ arguments on the hearing of the application, since liability for both knowing receipt and knowing assistance turns on what the third party knew, or had reason to know, of the circumstances constituting the breach of trust (recipient liability) or the “dishonest and fraudulent design” (assistance liability): Grimaldi v Chamelean Mining NL and Anor (No 2) (2012) 200 FCR 296 at [259].

[9] Farah Constructions v Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [174] - [178] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, referring to Baden and others v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509 at 575 - 6; [1992] 4 All ER 161 at 235 [250]. The case was decided in 1983. See also Grimaldi v Chamelean Mining (No 2) (2012) 200 FCR 296 at [268].

[10] George v Rockett (1990) 170 CLR 104.

[11] The Criminal Code (Q) s 679(b).

[12] (1990) 170 CLR 104 at 115.

[13] (1990) 170 CLR 104 at 116.

[14] [2004] FCA 1489; (2005) 212 ALR 464 at [4]. The italic emphasis is part of the judgment text; the underline emphasis has been added.

[15] Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) v Skycity Darwin Pty Ltd [2013] NTSC 28 at [29] - [30].

[16] The latter date being the date she was barred from entering the Skycity Darwin Hotel Casino.

[17] The dates were 1 January 2009 and 19 October 2012 (AB 2).

[18] Affidavit Bradley Keith Morgan, sworn 14 April 2014, par 30.b (AB 48).

[19] Affidavit Bradley Keith Morgan, pars 12 (AB 44), 30b (AB 48).

[20] Affidavit Bradley Keith Morgan, pars 25 - 27 (AB 47).

[21] Affidavit Bradley Keith Morgan, pars 28 - 29 (AB 47). Presumably, a member might be downgraded in membership status.

[22] Affidavit Callum James Mallett, sworn 18 November 2015.

[23] Affidavit Callum James Mallett, par 7. Mr Mallett qualifies his statement by adding that the applicant is not able to determine or identify from its turnover records for Ms Lalara, or “from any examination of the losses derived from those records”, the source of the monies brought into the applicant's casino and used by the applicant in the gaming machines there, nor Ms Lalara’s means, nor any association Ms Lalara had or may have had with the respondent.

[24] Affidavit Bradley Keith Morgan, par 40 (AB 52).

[25] See [7] above sub-par 3; [8] above sub-pars 3 and 4; and [11].

[26] K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312.

[27] Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2013] NTSC 28 at [21] - [24].

[28] K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312 at [154].

[29] Referring to AB 44 - 45 [15], [16]; AB 48 - 49 [30(d)]; AB 163 [15.1].

[30] See K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312 at [13].

[31] See Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733, per Burchett J.

[32] Documents in category (d), referred to in [19] above.

[33] In the case of Mr Mallett’s affidavit, to correct an erroneous statement in the affidavit of Mr Morgan – see [15] above.

[34] AB 48 par b.