Benson v The Star Pty Limited [2026] NSWCATCD 10;

Misleading or deceptive conduct or conduct likely to mislead or deceive

1. The Tribunal turns next to consider the applicant's claim that the respondent engaged in conduct prohibited by s. 18 of the ACL.
2. During oral submissions, the applicant's case in this respect was refined. The applicant's case was that the respondent had made a misrepresentation. The misrepresentation was that the applicant would not be excluded from The Star without fault on the applicant's part. The misrepresentation was submitted by the applicant to have arisen by silence. It was submitted to have been first made in 1995 and continued thereafter. The applicant relied on Henjo Investments Pty Limited v Collins Marrickville Pty Ltd (1988) 39 FCR 546; [1988] FCA 40 especially at [31], [35], [38] and [39].
3. The applicant's case, as the Tribunal understood it, was that the respondent's silence was of itself misleading or deceptive or likely to mislead or deceive in all the circumstances. The applicant did not point to other acts or omissions by the respondent, such that the applicant's silence, together with the other acts or omissions, was said to be misleading or deceptive or likely to mislead or deceive in all the circumstances.
4. In evaluating the applicant's submission, the essential question is whether, in all the circumstances constituted by acts, omissions, statements or silence, there was conduct by the respondent likely to mislead or deceive.
5. The applicant's submission did not take the Tribunal in detail through any circumstances or contextual matters that showed how or why the respondent's alleged representation arose and why the representation was misleading or deceptive or likely to mislead or deceive.
6. Nonetheless, doing the best I can with the evidence and submissions before me, the context and circumstances (see Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 per French CJ and Kiefel J at [20]) that I take into account when evaluating the applicant's submission are:

(1) The context of the relationship between the applicant and the respondent was a commercial context and moreover, one in which the applicant was engaging in gambling transactions at a venue operated by the respondent. Thus, to borrow the language of the High Court of Australia in Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at 403, the applicant's and the respondent's relationship:

"took place in a commercial context in which the unmistakeable purpose of each party was to inflict loss upon the other party to the transaction. Gambling transactions are a rare, if not unique, species of economic activity in a civilised community, in that each party sets out openly to inflict harm on the counterparty."

(2) The circumstance that The Star is a private premise, occupied by the respondent, normally represented as being open to members of the public, for the purposes of advancing the respondent's commercial interests: to borrow some of Tobias AJA's language from Hinkley, supra, at [41].

(3) The statutory context provided by the Casino Control Act, the Gaming and Liquor Administration Act 2007 (NSW) and the Anti-Money Laundering and Counter-Terrorism Act 2006 (Cth) and the common law context, to the extent that it provides for the rights of the occupiers to revoke the licence of a person. The statutory context and the common law context do permit the respondent, as an operator of a casino venue, and as an occupier of a casino venue, to revoke the licence of a person to enter and remain at the casino venue, without the obligation to provide reasons for that revocation.

(4) The contractual relationship between the applicant and the respondent, in the form of the membership program contract, which contemplated the respondent suspending the applicant's membership of The Star Club or limiting his participation in the membership program, upon the respondent withdrawing or denying the applicant his licence to enter or remain at The Star, e.g. clause 62(c) in The Star Club terms and conditions.

1. Having taken all of that context and circumstances into account, the Tribunal is not satisfied that the circumstances gave rise to a reasonable expectation that that the applicant would not be excluded from The Star without fault on the applicant's part. There is nothing in the circumstances, as far as I can discern, in which a reasonable expectation for the disclosure contended for by the applicant arose: Addenbrooke Pty Ltd v Duncan (No 2) (2017) 348 ALR 1; [2017] FCAFC 76 per Gilmour and White JJ. For example, the Tribunal can discern no undertaking by the respondent of any duty to advise the applicant about the matter said to involve the misleading conduct, no requirement of law or equity that imposed a reasonable expectation of disclosure on the respondent, no statement made by the respondent (or any of its agents or employees) that conveyed a half-truth only which ought to have been corrected, no implied representation by the respondent or no representation which may have been correct when made but which subsequently came to be incorrect.
2. The applicant's case based on s. 18 of the ACL is therefore not accepted by the Tribunal.
3. Further or in the alternative, there was no evidence from the applicant that because of the alleged representation he did something or did not do something. The applicant adduced no evidence of his 'reliance' on the alleged representation. The Tribunal is left to speculate about what the applicant did or did not do, because of the representation contended for by the applicant, if the representation were found to have been made. Would the applicant not have joined the membership program offered by the respondent? Would the applicant have stopped gambling at The Star? The ACL affords the applicant no avenue to recover loss or damage as the applicant's case does not establish he suffered and loss or damage "because of" the alleged misleading or deceptive conduct: ACL s. 236(1)(a).

1. The Tribunal turns next to the applicant's unconscionable conduct case.
2. The authorities establish that for conduct to be unconscionable, both in terms of the equitable doctrine of unconscionability and s. 20 of the ACL, a party to a transaction must be under a special disadvantage in dealing with the other party, with the consequence that there was an absence of any reasonable degree of equality and the other party must exploit that special disadvantage in a manner that is regarded as unconscionable: Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 and ACCC v CG Berbatis Holdings [2003] HCA 18; (2003) 214 CLR 51.
3. The Tribunal does not find, having regard to ss. 21 and 22 of the Australian Consumer Law that the applicant was in a position of special disadvantage within the meaning of s. 20 of the Australian Consumer Law. The evidence establishes that the applicant was an experienced gambler who had been gambling at Star City or The Star, as far back in time as 1995. The applicant was a skilful gambler (see p. 63 in the Tender Bundle). The applicant is, or at least has been, a chartered accountant (see p. 62 in the Tender Bundle). His comprehension and language skills appeared to the Tribunal to be strong and he impressed the Tribunal, during his cross-examination, as an articulate, intelligent and capable person. There was an absence of evidence pointing to the applicant operating under any special disadvantage.
4. Next, there is no evidence that the respondent was aware of the applicant's special disadvantage (assuming, contrary to the finding explained in the preceding paragraph of these reasons, that he was).
5. The Tribunal is also not satisfied that the respondent unconscientiously exploited any special disadvantage on the part of the respondent. The High Court in Kakavas, supra, explained (at [161]):

"Equitable intervention to deprive a party of the benefit of its bargain on the basis that it was procured by unfair exploitation of the weakness of the other party requires proof of a predatory state of mind. Heedlessness of, or indifference to, the best interests of the other party is not sufficient for this purpose. The principle is not engaged by mere inadvertence, or even indifference, to the circumstances of the other party to an arm's length commercial transaction. Inadvertence, or indifference, fall short of the victimisation or exploitation with which the principle is concerned."

1. As explained above in these reasons, when explaining why the Tribunal was not satisfied that the evidence persuaded the Tribunal that it could find that the respondent had operated in bad faith, unethically, capriciously, for a wrongful purpose, not honestly, or as part of a scheme to avoid the exclusion order review process contemplated by ss. 79 and 80 of the Casino Control Act, as contended for by the applicant, the Tribunal is not satisfied of any of those allegations made by the applicant, being findings which could potentially have supported a finding that the respondent victimised or exploited the respondent in the relevant sense, are established on the balance of probabilities. The Tribunal is not satisfied that there is evidence to support the submission that the respondent 'roped in' the applicant to the membership program and 'engineered' the forfeiture of the applicant's membership program platinum tier level benefits and privileges.
2. The evidence before the Tribunal does not persuade the Tribunal that respondent exploited the respondent or his situation, in the manner explained by the High Court in Kakavas, supra. The applicant's claim that the respondent engaged unconscionably, contrary to the ACL, is not accepted by the Tribunal.

Failure to provide rebate, gift, prize or other free item

1. Next, as to the applicant's claim based on s. 32(2) of the ACL, the Tribunal is satisfied that The Star Club membership program involved the respondent offering a rebate, gift or prize in connection with the supply or possible supply of goods or services: s. 32(2)(a) of the ACL. However, the Tribunal is not satisfied that the respondent failed to provide a rebate, gift or prize "in accordance with the offer": s. 32(2) of the ACL. Rebates, gifts or prizes available to the applicant were available pursuant to the terms and conditions of The Star Club membership program contract. The applicant's case identifies no term in the membership program that obliges the respondent to provide a rebate, gift or prize to him in circumstances where the applicant's licence to enter or remain at The Star has been revoked.
2. The applicant's claim based on s. 32(2) of the ACL is not accepted by the Tribunal.

1. The Tribunal will order that the application is dismissed.

1. The Tribunal did already hear some submissions on the question of costs but the parties requested an opportunity to make further submissions on costs. The Tribunal will make orders to enable submissions and evidence about costs to be brought before it.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.