David Joe v THE STAR PTY LIMITED

District Court of NSW|2022-05-23

INTRODUCTION

The plaintiff case is quite simple. He says that due to his suffering motor neurone disease, on 25 October 2019 he organised for his friend Mr Lie to operate gaming machines for him because he was unable to use his arms and hands with the speed and stamina required to enjoy playing gaming machines at the defendant's Casino. He claims a jackpot of $284,449.06 won plus other credit prizes; on the Year Of The Tiger ("YTT") machine in the Vantage Room which was situated in the VIP area ("VIP room"). Mr Lie, was playing the machine on the event of those winnings, after wagering over a three-hour period.
The defendant refused to pay the plaintiff the jackpot and other winning prizes ("the Winnings"). It forfeited the Winnings and paid the sum of the Winnings into the Responsible Gambling Fund.
The contest in these proceedings does not include an allegation that the defendant Casino acted other than, as it saw it, in bona fide compliance with section 86A of the Casino Control Act 1992 (NSW) ("the Act"). The plaintiff says that section 86A has no application in the circumstances.
Section 86A provides that a person subject to an Exclusion Order under section 79 of the Act is prohibited from making a wager in a Casino and is not entitled to any winnings from a successful wager in a Casino that the person is prohibited from; and further provides that the Casino operator must pay the amount of winnings forfeited to the casino operator by operation of the section to the Responsible Gambling Fund within three months. The relevant provisions of the Act, particularly section 86A are the subject of further attention later in these reasons. Mr Lie who was performing the physical operation of the YTT machine, by pushing its buttons was subject to an Exclusion Order.

THE CASE ADVANCED

By Amended Statement of Claim filed 25 August 2020 the plaintiff sues for recovery of debt; alternatively damages for breach of contract of wager; and in a final alternative for damages in conversion, the defendant having forfeited the Winnings to itself and into the Responsible Gambling Fund.
The plaintiff pleads that on 25 October 2019, when a holder of a Platinum Vantage Membership ("the Card") issued by The Star Casino, Pyrmont, NSW ("Casino") and disabled from pleasurably operating gaming machines which required use of his arm and hands without assistance of others by reason of his motor neurone disease; he entered into a wagering contract with the defendant Casino under which the Casino accepted wagers from the plaintiff by his placing his Card in the Year of The Tiger ("YTT") machine, inserting funds in the machine and causing the machine to be activated by the pushing of its buttons by him or someone on his behalf. The plaintiff pleads (at [3]) that the terms and conditions of the wagering contract included that the Casino would pay to the plaintiff the amount of any winning bet and jackpot in the event of the YTT machine, once activated, showing a winning bet or a jackpot on the screen; and would account to the plaintiff any credits retained in the YTT machine when the plaintiff chose to stop playing the machine.
The plaintiff (at [3f]) pleaded the following particulars of contract: 1. "the Agreement and each of the above terms is expressed in or to be inferred from the course of conduct adopted by the parties on 25 October 2019 when the defendant made the Machine available for gaming and permitted the plaintiff to make wagers on the Machine with the physical assistance of a friend, Mr Lois Lie (Mr Lie), and the plaintiff used the machine, in that way, for a period of approximately 2 to 3 hours, on that day."
The plaintiff pleaded the event of the wager and jackpot at [4] as follows: 1. "at or about 5:01 pm on 25 October 2019, the plaintiff made a wager of $10 in the Machine using his Platinum Vintage (sic) Membership Card and accumulated credits owing to him on that account (Wager), with the physical assistance of Mr Lie and the Wager won a prize of $152.50 (Prize) and a jackpot of $284,449.06 (Jackpot) whereupon the defendant became liable to pay the plaintiff a total of $284,779.06, .." (the said total sum including accumulated credits in the machine including $177.50)
The defendant paid to the plaintiff the sum of the accumulated credits of $177.50. The plaintiff sues for the outstanding balance of his winnings in the sum of $284,601.56.
The plaintiff pleads particulars of the defendant's refusal (in breach of contract) to pay the winnings [6]; 1. "On 25 October 2019, the supervisor of the defendant at the Casino, refused to pay the plaintiff the Prize, the Jackpot or the accumulated credits on the ground that Mr Lie "pushed the button" and Mr Lie was a person not permitted to be in the Casino because he had signed a Voluntary Exclusion Order under the Casino Control Act 1992 ("The Act"), in 2016. 2. By letter dated 15 November 2019 from the defendant to the solicitor of the plaintiff, the defendant refused to pay the Prize and Jackpot to the plaintiff on the grounds that the Winnings were forfeited to the defendant by operation of section 86A(2) of the Act.
At [7] the plaintiff pleads that he was not on 25 October 2019, or at any other time a person prohibited from making a wager in the Casino by operation of section 86A(1) of the Act and that the Wager was made by the plaintiff not by Mr Lie within the meaning of section 86A(1) of the Act.
At [8] the plaintiff claims that the defendant had no lawful authority to retain the Winnings and in the alternate, is liable for damages for conversion.
At the hearing the plaintiff elected not to press its allegation of resulting trust or seek that the defendant account to him for his beneficial interests in moneys held in trust.
In its Defence to Amended Statement of Claim filed 15 September 2020, at [3] the defendant denies the plaintiffs allegation of contract and pleads with particularity that Mr Lie was at the time an Excluded Person pursuant to an Exclusion Order issued under section 79 of the Act of 10 October 2016, which was in force 25 October 2019, as a consequence of which: 1. Mr Lie was prohibited from entering and wagering at the Casino: section 79, 84, 86A(1) of the Act and (at DTASOC [3(d)ii]) "To the extent Mr Lie did enter the Casino premises and was successful in any wagers placed, Mr Lie was not entitled to winnings from any successful wager made at the Casino and any such winnings were required to be forfeited to the Casino and then from the Casino to the Responsible Gaming Fund; sections 85A, 86A(2-4) of the Act.
In the further particulars at [3(f)] the defendant pleads that Mr Lie's presence in the Casino, in breach of the exclusion order "was an innocent failure on the part of the" defendant because the defendant "did not know and did not have reasonable cause to suspect, at any time," that he was an Excluded Person.
The defendant pleads at [3(g)] that the plaintiff "did not place wagers on any gaming machines" in the VIP Room.
The defendant relied upon further and better particulars of its defence given by letter of its solicitor 25 June 2021 to the plaintiff, in which at paragraph [2(b)], the joinder of issue observed at [11] above was effectively repeated and at paragraph [3] stated that the defendant relies on the Gaming Rules. In closing submissions counsel for the defendant submitted that the Rules approved by the Independent Liquor and Gaming Authority in accordance with Part 5 of the Casino Control Act 1992 (NSW), identify the relevant contract as entered between the Casino and Mr Lie as the "player". Counsel for the defendant further submitted that the Gaming Rules applied to effect that there was no contract between the defendant Casino and the person whose wager was bet; but rather the contract was between the Casino and the person to whom the Gaming Rules (such as 2.4) refer to as the "player": T 316. 46 - 317. 7. Those particulars are: 1. "(a) The Star refers to and relies on the applicable Rules of the Game from 9 May 2017 (Gaming Rules) approved by the NSW Independent Liquor and Gaming Authority (ILGA)"; 2. "(b) pursuant to 2.4 the Gaming Rules provides Gaming machine play shall be initiated by the player wagering credits from the credit meter by activating the appropriate commencement function". 3. "(c) The Gaming Rules were in force and available in physical and digital form at the time of the relevant events."
In closing, the plaintiff replied that the error in the defendant's construction of Rule 2.4 is to put that "initiated" (as used in Rule 2.4) means the direct physical act of operating machine. The plaintiff put that "initiated" means to cause the "wagering" and that in this case it was the plaintiff, not Mr Lie who was the "player wagering credits from the credit meter by activating the appropriate commencement function".
Fundamentally; the issues contested were 1. Whether the defendant contracted with Mr Lie, or with the plaintiff; 2. As the case was run, whether the Jackpot was in fact won by Mr Lie and not by the plaintiff, Mr Lie having physically operated the machine to play the wagers which brought arrival of the Jackpot; and 3. Determination of a central factual platform of the defence case, that "Mr Lie immediately left" the Casino and "the Plaintiff took up Mr Lie's seat at the" YTT machine, in order to collect the prize won by Mr Lie who by operation of s 86A of the Act was not entitled to receive the Winnings because he was an Excluded Person (DTASOC [3e]).
Uncontested facts include the following; 1. On 10 October 2016 an Exclusion Order pursuant to the Casino Control Act 1992, was issued to Mr Lie, his having provided the defendant a request for a Voluntary Exclusion Order pursuant to the Casino Control Act 1992 section 79, which request was read and signed by him. 2. On 25 October 2019 the plaintiff was 62 years of age. 3. On 25 October 2019 Mr Lie entered the Casino and commenced playing a roulette gaming machine on the main gambling floor before 2 pm, where he was met by the plaintiff. 4. Whilst the plaintiff stood behind Mr Lie, Mr Lie continued to play the roulette gaming machine with the speed of finger to screen touch activity involved in the selection of wagers on that machine. 5. After Mr Lie commenced playing the roulette machine on the main gambling floor, the plaintiff's Card was inserted into the machine being played by Mr Lie and the plaintiff's Card was inserted in all gaming machines thereafter operated by Mr Lie, when he was touching the screen or pushing the buttons and in the company of the plaintiff as he watched, until the Jackpot won on the YTT machine at 5 pm in the VIP Room. 6. For short periods, the longest being for some minutes commencing at 3:50 pm the plaintiff stepped away and Mr Lie continued to press the buttons playing the gaming machine. 7. Each time Mr Lie changed machine upon which he performed the operation by use of fingers, hands and arms, that change occurred at the instruction of the plaintiff for him to do so (plaintiff and Lie evidence and no evidence to the contrary). 8. The Card was not a credit card or otherwise a card sourcing funds for wagering (whether or not such an arrangement could be made between a patron and the casino, it was not so used by the plaintiff) but it was a type of loyalty card by which its use earned loyalty points on the plaintiff's account which could be redeemed by the plaintiff for benefits including gifts; affidavit Stevens [10-12]. 9. From a membership card, the defendant obtained a complete record of a card holding patrons' (in this case the plaintiff), gaming on each machine and the performance of each machine played whilst the Card was inserted, save for funds initially credited to each wager, which records were expunged after 90 days; affidavit Stevens [13-27][23]. 10. Particulars of each patron's Casino membership card included photographic identification and there was a hierarchy of status of membership cards. 11. The plaintiff's Card was of high-status level of membership. It bore a unique card identification number, the "Card ID" which was different to the "Patron ID"; affidavit Stevens at [9-11]. 12. Patrons, including patrons who held casino membership cards, could freely wager by playing the gaming machines without inserting their membership card. 13. Assuming all credits were not lost whilst playing a gaming machine, when the patron pressed the collect button a voucher was produced which could be redeemed at the cashier window or inserted in another machine where upon the patron could continue to wager those credits. Affidavit Stevens at [25]. 14. During the whole of the period of the plaintiff standing behind Mr Lie whilst Mr Lie touched the screen or pressed the buttons playing gaming machines, the plaintiff did not hand cash to Mr Lie or otherwise physically contribute funds to the wagering. 15. Between the arrival of the Jackpot at 5 pm at the operation of the buttons of the YTT machine by Mr Lie and 5:15 pm, the Casino's security surveillance team reviewed CCTV footage of the VIP Room and the winning of the Jackpot "to determine who had won the jackpot": DTASOC [3j]. 16. Following its review of the CCTV footage, the Casino determined that it was not the plaintiff who had won the Jackpot or the winning credits and representatives of the Casino (Mr Ryan Gaming Manager and Mr Jones Assistant Gaming Manager) told the plaintiff to contact and request the presence the person who had been pushing the buttons on the YTT machine at the time of the event of the Jackpot: DTASOC [3k]. 17. The Casino did not pay the Winnings or the Jackpot to the plaintiff and on or about 21 November 2019 paid those sums to the Responsible Gaming Fund, purporting to do so pursuant to section 86A(3) and (4) of the Act.
A relevant fact, which if it is not agreed, then from my observation in the court room is overwhelmingly satisfied, is that each of the plaintiff, Mr Lie and Mr Tjhen speak accented English according to their Indonesian/Australian heritage. The strength of accent was progressively stronger plaintiff, Mr Lie and then Mr Tjhen. Indeed, Mr Tjhen's English, was workable but inadequately so for the secure giving of evidence. Mr Tjhen's oral evidence was interrupted whilst an interpreter was retained. The plaintiff spoke softly. Answers given in English by the plaintiff and Mr Lie were understandable. There were times when I asked that counsel or the witness repeat what was said by the plaintiff or Mr Lie. On those occasions, their accent contributed to my difficulty of hearing and understanding the English they spoke.

AS THE CASE WAS OPENED AND RUN

The plaintiff opened "that the wager" for the Winnings was not a "wager" caught by section 86A because that term is not limited to a physical act of pushing the buttons on the machine. The plaintiff submits that section 86A of the Act has no application here, because "wager" contemplated the economic risk of the event of the bet.
For illustration, the plaintiff offered that in the table game of blackjack, only the croupier handles the cards. The croupier turns the cards over. No expert evidence as to the playing of the game of blackjack was lead. Defence counsel did not expressly concede the plaintiff's illustrations or refer to the playing of blackjack. The playing of table gaming at casinos, is not a matter of public knowledge. I put that example aside.
Senior Counsel for the plaintiff opened on the statutory interpretation of section 86A(1) submitting: 1. That the unifying factor, and the purpose of this provision, is directed at the vice of people putting money at risk, betting, making a wager in the sense of putting their economic interest at risk: T 4. 24; 2. The provision is intended to protect the interests of problem gamblers where an Exclusion Order is extant; 3. The provision is not directed to protection on the interests of people who are not problem gamblers; 4. Because the provision provides for forfeiture of the winnings to the Responsible Gambling Fund, a strict statutory construction is required
The plaintiff's fundamental position was that whilst Mr Lie pushed the buttons, it was the plaintiff's wager because he took the economic risk in the event of the wager (T 8. 4) and that the forfeiture provisions of the Act do not operate to deny the plaintiff a win in the event of his economic wager, in the sense of it being his money wagered: T 11. 33.
The plaintiff opened on the basis that the Card provided evidence of the fund accumulated during the gaming in the plaintiff's name. The evidence of Mr Stevens, the Casinos Regulatory Affairs Manager, whose affidavit made 7 March 2022 was read by the defendant, in October 2019 was the Group Compliance Manager. During cross-examination he provided his explanation of the records kept by the Casino via the Card. Mr Stevens was persuasive that it is a loyalty card. Whilst the Card provided a detailed and audited record of the wagering on the electronic gaming machines, which recorded the amounts bet, won and lost in each wager transaction, it was not a record of ownership of a credit of any person. It was a record of activity of machines whilst a membership card was inserted. A membership card did not have to be inserted for a patron to play. On that basis, a record of the winnings is a record of the function of the machine on the wager when the plaintiff's Card was inserted.
The defendant opened by submitting that section 86A applied such that the monies were forfeited to the Responsible Gaming Fund regardless of any arrangement between the plaintiff and Mr Lie: T 26. 6; and T 26. 26 - 30; and that whether or not the wager was placed by Mr Lie or by him on behalf of someone else, section 86A applied to so forfeit the money. T 27. 4.
Counsel for the defendant conceded that no arrangement between the plaintiff and Mr Lie was pleaded in the Defence: T 29. 48.
Counsel for the plaintiff objected appropriately throughout the hearing whenever arrangement of the nature of fraud or conspiracy or otherwise an agreement to circumvent the Act was inferred in the question asked of the plaintiff, Mr Lie or Mr Tjhen. In that way, the plaintiff is entitled to determination of the matter strictly on the pleadings (UCPR 14.14).
The defence as opened is essentially: 1. Mr Lie was the wagerer in fact and that he was not just pressing the buttons "in the context of the terms of the wager as it existed between my client and him" and "that is where the legislation intervenes": T 26. 50 - 27. 1. 2. If the court finds that Mr Lie was not the (economic) wagerer, then whatever the arrangement between the plaintiff and Mr Lie, Mr Lie engaged with the Rules of Gaming Machines (Exhibit D) and Winnings were won on his "wager" for the purposes of s 86A. 3. That the arrangement was no more than Mr Lie saying "I was pressing the button on behalf of Mr Joe because Mr Joe could not press the button" and the plaintiff saying "it was my money": T 30. 35 - 39. That understanding or "arrangement" was common ground: T 30. 40 - 31. 18. 4. That none of the money that was wagered during the passage of play from when the plaintiff and Mr Lie met at the roulette gaming machine on the main gaming room at 1:48 pm to the event of the jackpot at 5 pm in the VIP room was the plaintiff's money: T 31. 45. 5. That it was Mr Lie who was wagering both economically and physically: T 31. 47. 6. That the Rules focus on who pushed the buttons and operated the machine and that is extrinsic evidence of the contract between the plaintiff and the defendant. The act of playing being not devoid of decision making; the player is the wagerer.

EXHIBIT D, THE STAR SYDNEY RULES OF GAMES - "Wagerer" and "Player"

In the chapter of the Rules entitled Gaming Machines (which chapter of the Rules was by the Independent Liquor and Gaming Control Authority, NSW, effective Friday 19 May 2017), there is no definition of either "wager" or "player" (Definitions Clause 1). Rules concerning "Playing of Gaming Machines", which commence at Clause 2.3, provide that the "credit meter" can be incremented by Australian legal tender, winnings from gaming machines played, winnings from a linked jackpot or the electronic monitoring system (EMS) transferring credits to the gaming machine. In the present case, increments resulted from insertion of Australian legal tender and winnings only. Plainly the Rules contemplated gambling of an economic stake.
Rule 2.4 provided: "Gaming machine play shall be initiated by the player wagering credits from the credit meter by activating the appropriate commencement function." Clause 2.5 provided "a player's winnings/prizes shall be displayed on: the gaming machine, jackpot display meter, associated prize display, or a combination of the above."
Clause 4 of the Rules provided as follows in relation to "Payouts": 1. "A player entitled to receive a manual payout should verify the amount of the payment and must acknowledge receipt of that payment by signing the manual payment form" 2. "Where a voucher payout is made, the casino operator may request a player to play out any credits where the value of such credits is less than $1. In the event that player declines this request, the casino operator shall process a payment to the player via a payout voucher and the credits so paid shall be cancelled from the credit meter" 3. "The casino operator may withhold the payment of any prize or redeemable ticket issue, or demand the return of any prize or redeemable ticket issue, subject to notification to and review by an inspector, until such time as the casino operator has completed an investigation and made a determination" 4. "Wherever possible, prizes and credit redemptions payable by the casino operator will be paid immediately to the player. However, the casino operator may": 1. "Delay payment, subject to further verification of the players entitlement, to a mutually agreed time"; 2. "Pay the prize other than in a form requested by the player"; and 3. "Request an appropriate form for personal identification from the player".
Special provisions for "Playing of Slot Tournament Machines (a slot tournament machine is defined to mean a device reserved for the playing of Slots Tournaments and is not able to register an entitlement for payout or cash), not directly relevant to the plaintiff's and Mr Lie's involvements with the gaming machines on 25 October 2019, plainly contemplated individual meanings for "player" and "wager". Clause 6.3.4 provided a separation of those definitions in its terms as follows: "Slot Tournament machine play shall be initiated by the player wagering tournament credits from the credit meter by activating the appropriate commencement function" (bold added for emphasis)";
Another example of such separation of those terms and in regard to risking an economic stake appears in the definition provisions for the game of Baccarat. The Rules of Baccarat provide, at clause 5.2: "All wagers shall be placed by a means of chips and/or casino promotional tokens". Clause 5.3 provided: "A wager by a player shall be placed on the appropriate wagering areas of the Baccarat layout…." (bold added for emphasis);
The Macquarie Dictionary, online, defines the noun "wager" as "something staked or hazarded on an uncertain event, a bet; the act of betting"; and "the subject of a bet." "Wagering contract" is defined to mean "to hazard (something) on the issue of a contest or any uncertain event or matter, stake; bet.";
In Carlill v The Carbolic Smokeball Company [1892] QBD 484 at 490, Hawkins J when determining whether the contract there was a contract by way of gaming or wagering said: "it is not easy to define with precision what amounts to a wagering contract, nor the narrow line of demarcation which separates a wagering from an ordinary contract: but according to my view, a wagering contract is one by which two persons, professing to hold opposing views touching the issue of a future uncertain event, mutually agree, dependent upon the determination of that event, one shall win from the other and that other shall pay or handover to him a sum or money or other stake: neither of the contracting parties having any other interest in that contract than the sum or stake he will so win or lose, there being no other real consideration for the making of such contract by either of the parties. It is essential to a wagering contract that each party may under it either win or lose, whether he will win or lose being dependant on the issue of the event, and, therefore, remaining uncertain until that issue is known. If either of the parties may win but cannot lose, or may lose but cannot win, it is not a wagering contract."
My above examination of the Rules, the dictionary meaning of "wager" and reasons of Hawkins J; are all consistent with "wager" meaning the economic stake risked against the issue of the event. The Rules do not provide to the contrary of that ordinary meaning. I see no reason why the plaintiff could not, on his case, be said to have wagered his money stake on the event of the physical playing of Mr Lie. On the other hand, in the event that Mr Lie whilst playing, was not risking his stake on the issue of the event, win or lose, determined by the gaming machine; then nothing in those sources of definition, make him the "wagerer" and nothing of his physical playing, the "wager".
The Macquarie dictionary meaning of "player" is "someone or something that plays; someone who takes part or is skilled in some game; and a person engaged in playing a game professionally." The Macquarie dictionary online meaning of "play" again refers to the playing or carrying on of a game and "a playing for stakes; gambling", among its meanings.
Mindful of those definitions, in my opinion, Rule 2.4 is unambiguous. The subject matter of the Rule is to identify the initiation of a "play" on the gaming machine. It provides that occurs when the person engaged in playing the machine wagers credits from the credit meter by activating the appropriate commencement function. In my opinion Rule 2.4 clearly identifies the player and the play with the wagering of credits in what is "Gaming machine play". Nothing in Rule 2.4 limits the "player" to the person who presses buttons on the machine or performs whatever physical action activates its appropriate commencement function.
Specifically Rule 2.4 does not restrict, for operation of the YTT machine, the meaning of "player" to the person who pushes the buttons. The person wagering credits from the credit meter, such as a person who suffers a disability of lack of use of their arms or hands can within the meaning of Rule 2.4, initiate play in which their economic wager by wagering credits is bet from the credit meter by causing, through the action of someone else activation of the appropriate commencement function. In this sense, the person "activating" the function is the person making it happen. Only the person making the economic bet makes the function of operating the gaming machine for purpose of wagering to happen.
At the commencement of Day 2 of the hearing and on closing, the defendant submitted that the Rules for Gaming Machines are persuasive of the defendant's case that there was no contract as sued for by the plaintiff between him and the defendant in relation to entitlement to the Jackpot and Winnings; but rather, "there was an arrangement between Mr Lie and the defendant": T 54. 40. For the reasons stated, I do not find that argument to be persuasive.
Next, the defendant opened submitting that the Rules cannot assist in construing the meaning of "wager" in section 86A of the Act. The defendant submitted that the proper approach is, in order, to: 1. Determine whether the contract upon which the plaintiff sues and which applies to determination of the issues in this case as to entitlement to the Jackpot and Winnings, was made between the plaintiff and the defendant or Mr Lie and the defendant; 2. Determine the terms of the subject contract; and then 3. Separately interpret section 86A of the Act; and finally 4. Apply section 86A bearing in mind those prior determinations of the contract: T 54. 44 - 50
The defendant further clarified its case to be that relying on the facts pleaded in [3] and [6] of the DTASOC, it would have been contrary to section 86A for the defendant to pay the winning credits to the plaintiff or to Mr Lie and that the plaintiffs suit rests on facts of Mr Lie's playing of the game which was "an act contrary to law": T 55. 26 - 46.
The plaintiff does not dispute that on 25 October 2019, Mr Lie was an Excluded Person within the meaning of section 86A. The plaintiff case is that neither he nor Mr Lie were aware of that fact at the time and that innocent of any knowing contravention of the Act in that regard, Mr Lie assisted the plaintiff to wager his stake. The plaintiff, Mr Lie and Mr Tjhen gave that evidence.
As the case was pleaded and run, central to the defence is that each of the plaintiff, Mr Lie and Mr Tjhen is not to be believed. The defence pressed that the following fact's would be found and that they lead to conclusions against acceptance of the credit of evidence in the plaintiff case: 1. CCTV footage showed only Mr Lie entering Australian legal currency into the gaming machines which were played during the course of gambling as well as vouchers on changing between machines, which vouchers permitted transfer of credit from machine to machine; 2. The plaintiff permitted Mr Lie to use the plaintiffs Card to enter the VIP Room whilst knowing that to sign Mr Lie into the VIP Room as the plaintiff's guest, Mr Lie would have had to provide the VIP Room staff with proof of his identity; 3. Following the YTT machine displaying that the Jackpot had been won, Mr Lie encouraged the plaintiff to sit in the chair in front of the machine previously occupied by Mr Lie; 4. After the Jackpot was won, Mr Lie left the VIP Room with the plaintiff sitting in the gaming chair; 5. During Mr Lie's absence, after the machine displayed the Jackpot and whist the plaintiff occupied the gaming chair, the plaintiff or Mr Tjhen told the defendants Gaming Machine Manager, Mr Ryan and Gaming Machine Assistant Manager, Mr Jones, that Mr Lie had departed to go for a "sleep"; and 6. On Mr Lie's return to the VIP room he said to the defendant's staff members that he had won the money and It was to him that the casino should make payment.

STATUTORY PROVISIONS

Section 86A of the Act provides as follows: 1. A person is prohibited from making any wager in a casino if the person is a minor or is the subject of an exclusion order for the casino. 2. A person is not entitled to any winnings from a successful wager in a casino that the person is prohibited from making by this section and those winnings are forfeited to the casino operator by operation of this section. The winnings from a wager do not include the amount wagered. 3. A casino operator must pay the amount of any winnings forfeited to the casino operator by operation of this section into the Responsible Gambling Fund within 3 months after the winnings are forfeited: Maximum penalty--50 penalty units. 4. For the purposes of this section, 1. "winnings" includes any prize (whether monetary or non-monetary) and winnings in the form of credits on gaming machines or electronic gaming tables. The amount of any non-monetary prize is the monetary value of the non-monetary prize.
In approaching construction of section 86A of the Act, I am particularly mindful of three authoritative statements of principle; 1. In Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 at [69] the High Court described the primary object of statutory constriction as to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (case law cited). In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 2. At [70]; that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. 3. Recently, in Totaan v R [2022] NSWCCA 75 at [78] the Court of Appeal said "…Unwarranted judicial glosses should not be placed on the simple language of" statutory provisions.
In my opinion, the language of section 86A is simple and clear in its meaning. For the purposes of this case, the person prohibited from making any wager in a casino in 86A(1) is the person making an economic stake risked against the future uncertain event of the play. The word "any" before the word "wager" adjectively includes all types of wagers being economic stakes against the uncertain event of the outcome of the bet. That is the plain English meaning of the word "wager". This use of "wager" is in accordance with the above recited dictionary meaning and the quoted passage from the judgment of Hawkins J in the Carbolic Smokeball Company case.
It is that person who is not entitled to any winnings from a successful wager in a casino, to whom 86A(2) applies.
Section 86A provides that it is only in relation to that person that the casino operator must pay the amount of the winnings forfeited to the casino operator and into the Responsible Gambling Fund within three months. It is so provided by the words "by operation of this section" in (3).
The above construction of section 86A is harmonious with the primary objects of the act set out in section 4A, as follows:

4A(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. (bold added for emphasis)
(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.

I have added bold emphasis to section 4A(1)(c) because it is most pertinent to the circumstances of Mr Lie being subject of a Exclusion Order. If the economic stake wagered was the plaintiff's, no harm would be suffered by Mr Lie in the event of a loss.
The provisions concerning Exclusion Orders of persons (referred to in section 86A) are contained in Part 5 of the Act which concerns casino operations and approval of rules for games.
Section 79(3) provides that a casino operator must give an Exclusion Order to a person on the person's voluntary application to the Authority or casino operator. Mr Lie applied in relation to the defendant's Casino on 10 October 2016 (exhibit F).
The Act provides for legal gambling at casinos pursuant to a Licence. Further, that a person enters and remains in a casino only by Licence of the casino operator, except as provided in relation to certain police powers; section 77. Section 82 provides that a Voluntary Exclusion Order cannot be revoked except on the written application of the person, which application for revocation cannot be made within 6 months after the order was given. Pursuant to section 83, it is a condition of a casino license that the casino operator must, as soon as practicable, and on a daily basis, notify the authority of a list of persons subject to Exclusion Orders.
Section 85 provides that the person for the time being in charge of the casino, an agent of the casino operator and/or a casino employee, must, as soon as practicable after it becomes known to the person that a person the subject of an Exclusion Order….is in the casino, notify an inspector then remove the person or cause the person to be removed from the casino. Section 85(7) provides that such persons must notify the police, as soon as practicable after it becomes known to them that an Excluded Person is in any part of the precinct of the casino not under the control of management of the casino operator.
In my opinion, the construction of 86A at which I have arrived is harmonious with the language and purposes of the Act, most particularly, the object expressed in 4A(c) of containing and controlling the potential for economic risk of wagering at the casino to cause harm to individuals and families. As observed in the second reading speech by the relevant minister to the Legislative Assembly, section 86A provides an economic consequence for excluded patrons and minors of their winnings being forfeited. In this way, section 86A provides for removal of personal economic incentive of winning for prohibited persons.
The harm toward which section 86A is directed is the economic harm of wagering for problem gamblers.
In closing submissions the defendant argued that the word "making" in the phrase "making any wager in a casino" in section 86A(1) is to be construed with the causative meaning of producing any action or causative agency, to give rise to or the process by which something is made to be (see closing written submission MFI 7[20]).
Accepting the plain English meaning of the word "making" (which I do) the noun the subject of that verb is "wager". It is the wager by "the person" being made, to which section 86A(1) applies. The definite article "the", preceding the "person", is not expanded by the statutory language to mean any person other than the person making the economic stake at risk of the uncertain outcome of the bet.

BURDEN OF PROOF

Absent a defence of fraud, the fact-finding exercise which is required to be undertaken is not properly approached in a segmented way of considering the plaintiffs evidence in its case; and then, as if the defence conducted a separate case with an onus of proof, considering the evidence of an arrangement between the plaintiff and Mr Lie contrary to law. To do so would be to shift the burden of proof from the plaintiff to the defendant. The correct approach, after hearing the evidence of all witnesses and making an assessment as to the credit and reliability of their evidence and examining the documentary evidence; is to weigh the whole of the evidence to determine whether the plaintiff, who bears the onus of proof has proved his case. The nature of the defence, including the gravity of the denial that the plaintiff was truly the wagerer, and in fact Mr Lie was, is a matter for consideration in determining whether or not the plaintiff has proved his case on the balance of probabilities; Nguyen v Tran [2018] NSWCA 215 per Beasley P (Emmett AJA and Bellew J agreeing) at [52] to [64]. As pleaded, the defendant denies the plaintiffs allegation that Mr Lie merely played the plaintiffs wagers on the YTT machine up to the events of the Winnings including the Jackpot. The defence does not plead a fraud. The defendant's denial of the plaintiff's allegation that Mr Lie was physically playing the plaintiff's wager is not a "case of a party" to be proved by the defendant. Section 140 of the Uniform Evidence Law does not apply to the defendant's mere denial of that central allegation in the plaintiff's case.

The Wagering

Exhibit A to the plaintiff's first affidavit dated 16 March 2021 is a report of his treating specialist neurologist, Dr Huynh. The report is dated 15 October 2019, only 10 days prior to the event of the Jackpot. Dr Huynh reported to the plaintiff's GP a description of the plaintiff's then state of disability due to his disease in the following terms: "Since last review he continued to deteriorate and in particular he has noticed worsening in his right upper limb function.… On an examination today, there was significant muscle wasting proximally involving the upper limb as well as the shoulder girdle muscles. There also appeared to be a split-hand pattern of wasting and weakness prominent over the left non-dominant side.… In particular reflexes were globally depressed. There was no spasticity. He had no antigravity power in both shoulder abduction. Elbow flexion was moderately severe affected with just antigravity power. There was moderate left wrist extension weakness and moderate weakness affecting the intrinsic hand muscles particularly APB and FDI. His right wrist extension was moderately weak hand muscles mildly impaired. In the lower limbs there was no evidence of wasting or weakness.… Mr Jo's clinical presentation is that of a motor neuronopathy and his phenotype is consistent with flail limb variant of MND/ALS."
The video evidence, in my opinion, dramatically displays that extent of disability of the plaintiff's arms. On his entering the Casino, he brought two takeaway cups of cappuccino to the place where Mr Lie was already playing a gaming machine. This was in the main Casino gaming area. He is seen walking with his arms hanging down beside him. A takeaway coffee cup with white lid was in each hand at about his hip level. He was not carrying the cappuccinos before him in the normal way, such as by maintaining arms bent at elbows. When he reached Mr Lie, rather than project his arm and hand forward against gravity or bend an arm at the elbow to give a coffee to Mr Lie, Mr Lie reached down to a cup of coffee in the left hand of the plaintiff, still at a position of about his hip. Use of his arms to that point appeared to be almost flaccid. The plaintiff then walked a short distance to a place between gaming machines, near Mr Lie, where he used his left hand to assist his right hand to raise his takeaway cup of cappuccino to the level of the bench between gaming machines. With two hands he then deposited the cup of cappuccino between machines. He then used both hands to lift the coffee part way toward his mouth and bent forward to tip his mouth toward the coffee, in order to drink from the takeaway cup. This was a most unnatural course of movement. The film depicted him at the time of his arrival and hours before the Jackpot, the subject of the proceedings. It is an unaffected display of his severe disability of use of arms and hands. This passage of CCTV evidence is entirely consistent with my lay understanding of the opinion of Dr Huynh. Throughout the CCTV evidence (Exhibit 1) to which the parties directed me, the plaintiff is never seen to exercise active and maintained elevation of either forearm or arm against mere gravity.
When the cross examiner put to him that his left non-dominant arm was stronger, the plaintiff clarified that his right dominant side was the better. The doctor's report confirms dominance of the right upper limb. Obviously, because the dispute is focused on his ability to push buttons whilst playing gaming machines; the plaintiff volunteered that answer against self-interest. It was also put to him in cross examination that he had the arm strength to manoeuvre the 15 kg chair in front of the YTT machine, at which the Jackpot was won. The basis for that suggestion is CCTV (Exhibit 1) between 4:58:32 pm and 4:58:37 pm. Mr Stevens, Star Group Compliance Manager, whose affidavit of 7 March 2022 was read by the defendant, had weighed the chair but he conceded in cross examination that he was not venturing an opinion that the plaintiff had moved the chair with his hand, elbow, leg or otherwise. The plaintiff's response in his cross examination was that he could manoeuvre the chair by use of his leg but not by use of his arms. The CCTV is not persuasive that he moved the chair by power of his arms and hands. The plaintiff's evidence is consistent with the report of Dr Huynh that he retained leg strength. In any event, the focus of the question of his ability to play gaming machines was not on his hand strength for a passage of a few seconds. The evidence is that the gaming performed by Mr Lie, the subject of the contest, continued over 3 hours, about 2 hours of which was in the VIP room. The common ground is that the plaintiff was able to stand behind Mr Lie and watch. The evidence is that the plaintiff's recreation lasted hours.
The plaintiff was challenged during cross examination that on occasion he used one hand to operate his mobile phone and that he could smoke a cigarette. Outside of the obvious observation that those activities would not equate to the dexterity and stamina of arm and hand movement required for extensive, pleasurable operation of the gaming machines over several hours; the evidence was that, for instance, the plaintiff used two hands to conduct a conversation on his mobile phone and if it was other than a very short communication, he would rest his mobile phone on something in order to participate in the call.
In my opinion, the evidence is overwhelmingly in support of the plaintiff, on 25 October 2019, suffering weakness and depressed reflexes in his arms and hands such that he was obviously disabled from the active arm/hand performance required of him in order to enjoy playing gaming machine. The CCTV shows that Mr Lie's hands moved quickly to the buttons on the machines. The evidence is that the gaming required a selection of touches or pushes of buttons by which various compilations of betting could be selected.
The plaintiff described the speed of action required and made specific reference to the roulette machine which permitted only 20 seconds for the performance of several functions of screen touching. Mr Lie also gave evidence of that effect concerning the roulette machine.
The CCTV footage (Exhibit 1) shows that when playing the poker machines, Mr Lie pressed the buttons every couple of seconds over an extended period of time (2 hours with no substantial breaks).
The plaintiff selected friends, and on the subject occasion Mr Lie, to perform the physical actions/activity of the sustained, repetitive hand and arm movements required to operate the gaming machines for him. The plaintiff gambled at the Casino 5 to 6 days per week. He knew Mr Lie to be a regular gambler present at the Casino over the past 6 months.
I am satisfied that the plaintiff accurately described his physical impairment and how it affected his recreation of gambling in his first affidavit at [5] where he deposed: After my disease set in, playing poker machines became increasingly difficult for me because I could not make repetitive hand and arm movements, I had to swing my arms rather than lift them, and I became very tired if I operated a machine, so I started to go to the Casino with friends who would operate the machines for me when I wanted to play. Going to the Casino and gaming with friends helped me relax and cope with my condition.
On the evening of 24 October 2019, at the home of Mr Tjhen, the plaintiff gave Mr Lie $2000 to gamble on his behalf. The plaintiff's evidence of this was corroborated by the evidence of Mr Lie and Mr Tjhen. Each of them gave evidence that the discussion at the time was to the effect that the plaintiff enjoys playing the roulette machine, with which he suffered particular difficulty.
The plaintiff does not challenge that Mr Lie not only touched the screens and pressed the buttons playing the games on the machines but also, at times, selected which buttons to press in order to wager. The plaintiff watched. He was happy for Mr Lie to make those plays on his behalf. Mr Lie gave evidence of the plaintiff instructing him in the plays.
In his first affidavit at [9] the plaintiff deposed; "At about 3 pm that day, Lois and I went to the Vantage VIP Gaming area and after a while, I started playing the machine called "Year of the Tiger" (machine). I gave my Platinum Card to Lois and saw him put it into the Machine. Lois pushed the buttons on the Machine for me and handled the money, while I was standing nearby and giving him instructions (like changing machines). It was my money that was put into the Machine on that occasion and my decision to continue gaming on the Machine. At about 5 pm, a bet of $10 on the Machine won a prize of $152.50 (Prize) and a jackpot of $284,449.06 (Jackpot). At that time the Machine also contained $177.50 in accumulated credits (Accumulated Credits).
During cross examination the plaintiff gave the following evidence of Mr Lie not just pushing the buttons but under the plaintiff's observation, making choices in the making of each bet; T 108. 2 - 109. 5 Q. You understand that each of the buttons has a different function, don't you? A. That's right. Q. By different function, I mean that depending on which button the person chooses, there is a different amount of money that's being bet? A. Yes. Q. And there's a different chance of winning a jackpot or money, is that right? A. That's right. Q. You also understand that sometimes when you win some credit - you understand what I mean by "credits" don't you? A. Yes. Q. When you win some credit in the game, the game allows you to, for example, by choosing playing cards, whether they are diamonds or clubs or-- A. That's right. Q. --hearts, you can play a game to double up your money or lose all the credits? A. That's right. Q. You can press the buttons in different sequences to have different wagers with different amounts of money and different chances of getting paid? A. That's right. Q. You accept that at all times from the time that there was - let me start and do it in chunks. When Mr Lie, you observed, playing the roulette machine, he was making the choices, wasn't he? A. That's right. Q. When you came into the Vantage room and started playing on the first machine-- A. Yes. Q. --Mr Lie was making the choices, wasn't he? A. That's right. Q. On the Year of the Tiger machine, Mr Lie was making the choices, wasn't he? A. No, I give him a guide, because once the second machine we play is not paying, I told him to move to the other machine. Q. Is that what you say that your instruction was? A. Yes. Q. To go to another machine? A. Yes. Q. But when it came to the choices that were being made on the machine, you weren't telling him which button to press? A. No, I just let him play, because I give him the money.
In his first affidavit, after deposing that he was helping the plaintiff play by operating the machines on account of the plaintiff needing that assistance because of his motor neurone disease, Mr Lie deposed as follows: 1. [5] "at around 3 pm, David said he was feeling lucky" and asked me to go with him to the Vantage VIP Gaming area, to play poker machines. I was not a VIP member. I used David's VIP Platinum card to go into the Vantage room. 2. [6] "David and I started to play on a number of gaming machines at first and then went to the gaming machine known as the 'Year of the Tiger (Machine)'". 3. [7] "When we were playing the Machine, I sat on the chair and operated the buttons. David stood behind me giving me instructions of what to bet using his money. I pushed the buttons and put the money into the machine because David could not use his arms and hands for any time because of his motor neurone disease. I did not use any of my money. At about 5 pm, I placed a bet of $10 and pressed the button on the Machine. The bet won a jackpot of $284,449.06 ("Jackpot")."
During cross examination, Mr Lie gave the following evidence: T 168. 25 - 47. Q. When you went into the VIP room, you walked across to the corner of the VIP room and you handed your card to Mr Joe didn't you? A. Mm. Q. Is that right? A. Yeah. Q. Mr Joe then used the card, as you saw him, enter into the VIP Vantage room, is that right? A. Yes. Q. And you started - you as in you, Mr Lie and not Mr Joe - you started playing on the machines? A. Yeah, because he had told me to. Q. Did you play on the machines? A. Mm? Q. Did you play on the machines? A. Yeah, because he told me to. Q. Mr Joe didn't play on the machines did he? A. No, he standing beside me.
Mr Lie was not more specifically challenged on his affidavit evidence that the plaintiff had given him instructions of what to bet.
The evidence is consistent with Mr Lie operating the machines with significant freedom of choice. It is inconsistent with the plaintiff actively telling him which buttons to press to initiate the amount of the wagering credits and the design of the bets played, in a substantial way.
The CCTV evidence shows only rear views of the plaintiff and Mr Lie. Because their faces are not shown, it cannot be seen who was speaking and when. I observe that common sense dictates, particularly in the circumstances of the period of the wagering, whilst the plaintiff stood watching Mr Lie, it seems inherently unlikely that there was no conversation between them as to the choices of plays including the amount in credits to risk on a play. Their combined evidence is consistent with the plaintiff's case that he was watching Mr Lie operate the machines for his wagers in the course of him giving instruction and Mr Lie playing. Their common evidence is, that it was the plaintiff who directed that they move from the main gambling floor to the VIP area. It is common evidence that when in the VIP area, it was the plaintiff who instructed that Mr Lie move from the machine first played to the YTT machine.
In a nutshell, the plaintiff chose which machines were to be operated by Mr Lie, when to change machines, (from the initial roulette machine, from the main gaming room machines to the VIP room first machine, and finally to the YTT machine) and for how long to continue betting. The display on the machine showed the plaintiff the wagering credits, wagering credits of each bet, the performance of each play such as a spin of the cards. The depletion or addition of credit on the credit meter was at all times visible to the plaintiff save for when he stepped away for the purposes of taking a mobile phone call, having a cigarette and when he left Mr Lie playing for several minutes whilst he left and returned with car keys that Mr Lie gave him at around 4 pm. The plaintiff case that he left to put money in Mr Lie's parking meter is plausible. In that context, instructions of choice of machine and when to stop or continue playing were fundamental to the engaged activity of wagering.
The Jackpot, the subject of this suit, occurred at about 4:59:59 pm (5pm) whilst Mr Lie was seated before the YTT machine. The plaintiff was standing behind him, at an angle where he could see the screen. The CCTV shows that the plaintiff was watching. It appears that the plaintiff's stance has him seeking some support from the empty gaming chair at the next machine. On the arrival of the Jackpot, the CCTV shows Mr Lie rising and pointing to the face of the machine, then immediately turning to the plaintiff and bowing toward him as he put his hand around the plaintiff shoulder. The plaintiff then took the seat in front of the YTT machine from which Mr Lie had risen. Mr Lie went to their friend Mr Tjhen who was playing another machine, a few metres away, in the VIP room. Mr Tjhen, Mr Lie and other patrons in the vicinity then surrounded the machine. At least one patron took photographs with his mobile phone of the display of the Jackpot on the machine.
In his first affidavit made 16 March 2021, the plaintiff said at [9] that Mr Lie "pushed the buttons on the Machine for me, and handled the money, while I was standing nearby and giving him instructions (like changing machines). It was my money that was put into the Machine on that occasion and my decision to continue gaming on the Machine. At about 5 pm, a bet of $10 on the Machine won a prize of $152.50 (Prize) and a jackpot of $284,449.06 (Jackpot). At that time, the Machine also contained $177.50 in accumulated credits (Accumulated Credits).
[at 10] "as soon as I saw the jackpot, I moved into the seat in front of the machine to guard what I thought were my winnings. I was very excited. Lois was excited. Lois went to tell Hengky about the jackpot…." (Lois is a reference to Mr Lie and Hengky is a reference to Mr Tjhen).
If anything was spoken between Mr Lie and the plaintiff in the moments following the event of the Jackpot during which Mr Lie immediately rose pointing to the screen of the machine and turned to the plaintiff to bow to him, then put his arm on the plaintiff's shoulder and the plaintiff moved to the gaming seat in front of the YTT machine, it is not in the evidence. During opening, counsel for the defendant put that Mr Lie's actions involved his manoeuvring the plaintiff into the gaming chair "in his stead, and he almost immediately left the casino because he knows he was an excluded person."
In my opinion, the CCTV of those moments following the event of the Jackpot are not inconsistent with the plaintiff's case that Mr Lie was operating the machine by pressing its buttons for the plaintiff's wager. His pointing to the screen as the plaintiff watched and first reaction away from the machine to be that he bowed to the plaintiff is not inconsistent with that case.
Neither the plaintiff nor Mr Lie conceded during cross examination that Mr Lie manoeuvred the plaintiff "in his stead" into the gaming chair and then left the VIP Room in order to avoid detection as a "Excluded Person" who would not be permitted to receive the Winnings. All that can be said of the CCTV of those moments is that it is not inconsistent with the plaintiff case. At its highest, in my opinion, Mr Lie's first expressive reaction being to bow to the plaintiff, is more consistent with congratulatory acknowledgement toward the plaintiff on his Jackpot, than it is with what one might think would be Mr Lie's reaction if the Jackpot were his own. He did not rise to direct attention of the world to it, but rather his first attention was toward the plaintiff. As these propositions were not investigated in the evidence it is important that the weight of the CCTV footage be restricted to, as I have said, being not inconsistent with the plaintiff case.
The plaintiff assuming the chair in front of the YTT machine, in my opinion, is not inconsistent with the plaintiff's evidence that he was guarding his Jackpot. That the machine was automatically locked, in my opinion, does not significantly detract from acceptance of the reasonable proposition that the plaintiff wanted to guard his Jackpot.
Mr Lie did not leave the VIP room immediately on the event of the Jackpot. Mr Lie's leaving the Casino premises is explored further in the below paragraphs.
More detailed reference to what the defendant chose to challenge in the evidence of the plaintiff and Mr Lie to this point includes the following; 1. There was no challenge to the plaintiff and Mr Lie having known each other for most of this millennia, they having been regular gamblers over that time, save for Mr Lie having ceased gambling for several years from October 2016 when he applied for a Voluntary Exclusion Order. Both the plaintiff and Mr Lie were unshaken in their evidence that they assumed the 2016 Exclusion Order had expired because Mr Lie had, to his and the plaintiff's observation, since enjoyed unrestricted access to gambling within the Casino for 6 months. Mr Lie specifically referred to having dealt with croupiers and cashiers without any restriction. 2. During cross examination, the plaintiff's evidence was that Mr Lie was gambling the plaintiff's money not only whilst the plaintiff was at the casino but even whilst Mr Lie gambled before the plaintiff arrived on 25 October 2019: T 86 - 87; 90. 21 - 34. The plaintiff acknowledged that on other occasions Mr Lie would wager his own money: T 105. 49 - 50. Whilst the cross examination commenced with the approach of seeking yes or no answers to the proposition that in his affidavit evidence, the plaintiff had not referred to giving Mr Lie funds with which to wager during the period of them being together in the Casino as Mr Lie physically played the gaming machines; the cross examination ventured beyond the affidavit evidence. The plaintiff was unshaken in his statements that Mr Lie was in fact wagering the plaintiffs money. For example, the following questions were asked, and answers given: T 86. 25 - 29;90. 21 - 34. Q. I'm going to suggest to you that the entire time from the time that you arrived until the time of the jackpot, the money that was being used, the credits that were being used, the vouchers that were being used, were all Mr Lie's and not yours, do you accept that or do you not? A. No. It's my money, I used my card. If not my money, I don't use my card. ….. Q. You understood at that time that when you arrived that it was his money, not yours, that he was using? A. No, it's my money. Q. I've shown you the material that you looked at, does that change your answer to the question that I've just asked? A. No. 1. The CCTV is not inconsistent with this part of the plaintiff's evidence. It shows that Mr Lie arrived at 1:48:50 pm and he arrived at the Casino at 2:31:05 pm. The plaintiff walked immediately to the roulette machines where Mr Lie was playing. At 2:31:05 pm the plaintiff stood briefly to the right of Mr Lie and then at 2:31:32 pm walked off returning at 2:37:20 pm with the two take away cups of coffee. Having taken a sip of his own coffee (in the manner described above), at 2:38:28 pm, the plaintiff watched Mr Lie playing the roulette gaming machine for a short period and then at 2:40:24 pm the plaintiff inserted his Card into the card reader of the machine Mr Lie was playing. 2. Mr Lie's evidence (affidavit 16 March 2021 at [4] and oral evidence) was that he gambled his own money on that afternoon but only before the plaintiff's Card was inserted on his commencing to assist the plaintiff: T 164. 23 - 44. The plaintiffs evidence as to whose money Mr Lie was gambling before the plaintiff's attendance, can be only on the basis of his assumption of that fact. 3. There is no real inconsistency in their evidence because during re-examination the plaintiff explained as above referred to his evidence, insisting that Mr Lie was playing his money, was based on his having given Mr Lie $2000 cash at Mr Tjhen's house the prior evening, 24 October 2019, for that purpose. Mr Lie and Tjhen gave consistent oral evidence corroborating the plaintiff's version of those facts. Plaintiff's evidence (see the passage quoted above), that he would give his Card to Mr Lie when Mr Lie was operating the gaming machines for the plaintiff's wagers, was another fact corroborated in the oral evidence of Mr Lie: T 108. 30 - 45; 168. 35 - 169. 9. 4. The re-examination of the plaintiff and the further oral evidence of Mr Lie and Mr Tjhen as to their meeting for dinner at Mr Tjhen's house on 24 October 2019 when the plaintiff gave $2000 cash to Mr Lie, was given following my overruling of the defendants objection; see separate judgements: T 124; T 138. 5. It is common ground that the whole of the operation of gaming machines by Mr Lie, with the plaintiff standing by from the insertion of the plaintiffs Card in the roulette machine at 2:40 pm, up to the event of the Jackpot and in relation to all of the Winnings was conducted whilst the plaintiffs Card was inserted in whichever machine was played.

Mr Lie Leaves

It was repeatedly put during cross examination of the plaintiff and Mr Lie that Mr Lie immediately left the VIP room following the event of the Jackpot. As already noted, the defendant puts that allegation as a reason not to accept the plaintiff case that the Winnings were his and not Mr Lie's. Mr Ryan, the defendant's Gaming Manager for the Gaming Machines, gave evidence that he held that understanding, because he was advised of it by the Casinos surveillance team. At 5:15 PM Mr Ryan attended the VIP room to participate in what he described as the defendants Standard Operational Procedure ("SOP") for Jackpots over $100,000.
The video evidence (Exhibit 1) shows that understanding to have been wrong. Mr Lie did not immediately leave the VIP room or the Casino after the event of the Jackpot. After the Jackpot, Mr Lie, having gone to and brought Mr Tjhen to the machine, walked through the VIP room gaming machine area and its precinct, including across a dining area to the men's room. After leaving the toilet, he returned through the VIP precinct, walked through the VIP room and re-joined the plaintiff Mr Tjhen in front of the YTT machine. The time shown on the CCTV when Mr Lie re-joined the plaintiff and Mr Tjhen at the machine was 5:02:20 pm. Over that passage of walking to the bathroom and return, Mr Lie walked normally. He did not appear to hurry at all. On his re-joining the plaintiff and Mr Tjhen in front of the YTT machine, he in a relaxed fashion handed them each a cigarette and then unhurriedly, simply walked toward a door to depart the VIP room. It is apparent that the plaintiff, Mr Lie and Mr Tjhen spoke to each other when together, immediately following the Jackpot and later during the passage of handing out cigarettes. Mr Lie departed the room at approximately 5:02:32 pm.
Mr Lie then, in the same normal walking pace passed through the Casino. During his passage through what appears to be the main gaming floor of the Casino, Mr Lie took the time to pause and dial a number on his mobile phone and then continued to walk with his mobile phone to his ear. The CCTV surveyed him walking in the same normal manner, whilst completing his phone call, and then whilst commencing a second mobile telephone call. He reached the top of the escalators by which he exited the Casino to it's street precinct at 5:04:11 pm.
Even then Mr Lie did not directly exit the Casino property. He meandered on the driveway at the base of the escalators whilst completing his second mobile phone call. Then he stood stationary for a while before lighting a cigarette. This passage of him remaining on the Casino property at its entrance from the street exceeded two minutes. Mr Lie did not enter the public footpath until 5:06:23 pm. Once away from the Casino, he waited at a pedestrian crossing, before crossing the street and going out of view of the CCTV.
Mr Lie left the Casino without carrying anything but returned to the Casino at 5:12 pm with a bag suspended at about his hip level by a strap which passed over his left shoulder. Mr Lie lingered from 5:10 pm on the external area of the Casino, below the entrance escalator, whilst participating in another mobile telephone call.
At 5:12 pm Mr Lie had returned to be inside the Casino and again he was on his mobile telephone as he walked, with the black shoulder bag. He lingered whilst completing the call. Even then he did not proceed directly to the VIP room. Between 5:13 pm and 5:19 pm he played a gaming machine on the main gambling floor. After continuing his walk through the gaming areas of the extensive Casino space, Mr Lie met the plaintiff and Mr Jones, Gaming Machine Assistant Manager, just outside the door to the VIP room at 5:20 pm.
The reason for Mr Lie leaving the Casino was a focus of cross examination of each of the plaintiff, Mr Lie and Mr Tjhen. The proposition put by the defendant and which each of them adamantly rejected, was that Mr Lie left the VIP room because when the Casino staff would arrive in relation to the Jackpot, he as an Excluded Person, would be ejected from the Casino and the Casino would refuse to pay him the Jackpot which he had won.
The plaintiff, Mr Lie and Mr Tjhen maintained throughout intensive cross examination, that Mr Lie said he was leaving to put money in his parking meter to extend his parking time and the plaintiff had asked him to come back with a bag because the plaintiff wanted to collect his winnings in cash.
A matter considered in more detail below is that the defendant put to the plaintiff and Mr Tjhen that during Mr Lie's absence a conversation ensued in which, Mr Ryan, Gaming Manager, informed them that "The jackpot can only be paid to the person who pressed the button. You will need to call your friend and ask him to return". It was put to them that either the plaintiff or Mr Tjhen said "He has gone to have a sleep." The basis for the defendant's assertion is found in the affidavits of Mr Ryan, 15 April 2021 at [18] and of Mr Jones, Assistant Gaming Manager, 16 April 2021 at [21]. Mr Jones was also present at the conversation. Their affidavits did not identify who it was who spoke the words about Mr Lie having gone for a sleep. Obviously, Mr Lie having gone for a sleep would be a different version of events to the plaintiff case that he had gone to extend the parking meter at his car. The common ground is that Mr Tjhen, then as he and the plaintiff were instructed to do by Mr Ryan, telephone Mr Lie requesting him to return to the VIP Room.
The above referred to sequence of Mr Lie's passage of travel, shows that indeed, he had returned and was inside the Casino, with the shoulder bag, three minutes before Mr Ryan and Mr Jones arrived in the VIP Room at 17:15 pm and 5 minutes before Mr Tjhen called him at 17:18 pm. CCTV shows Mr Tjhen made a call and Mr Lie received a call at that time. Mr Lie was then playing the roulette gaming machine on the main gaming floor. He continued to play that machine for nearly 1 minute after concluding the call.
The defendant proposition that Mr Lie had left the VIP Room in order to avoid being identified, because he was aware that as a currently Excluded Peron, he would not be entitled to the Jackpot; fits uncomfortably with his remaining within the Casino and apparently making passage back to the VIP Room with the bag. It fits uncomfortably with him pursuing a jackpot on the machine he played on the main gaming floor. He was aware that the Casino surveillance system had cameras "everywhere" by which he could be identified: T 167. 26 - 38. Indeed, the exhibit 1 CCTV evidence is consistent with his then understanding. The surveillance team had already identified him as the person pressing the buttons at the event of the Jackpot.
Mr Lie was an experienced gambler who was aware that whilst in or about the Casino premises he was subject to surveillance by CCTV: T 167. 33-35. The whole of the CCTV evidence is consistent with the evidence of the plaintiff and of Mr Lie that Mr Lie's access and gaming throughout the Casino was, as he said it to be, not impeded because of an Excluded Person status. He is not shown as a person taking any measure to avoid detection. On the whole of the evidence, his Excluded Person status was not the subject of any Casino action refusing his participation in the gaming or access to the Casino premises until the Casino exercised its S.O.P., on the event of the jackpot. The defence case is that the S.O.P. operated for all jackpots of greater than $100,000.

Post Jackpot Conversations

A centrally contested fact is whether, on the plaintiff case, he said to Casino staff, that Mr Lie had crossed the "street" to bring a bag for the plaintiff to take his winnings in cash; or, on the defence case that the plaintiff or Mr Tjhen said, that Mr Lie had left to have a "sleep".
In their first affidavits, plaintiff 16 March 2021 and Mr Tjhen, 18 March 2021, each deposed that, following the Casino staff informing them that they needed to see the person (Mr Lie), other than the plaintiff who surveillance showed was operating the machine at the time of the Jackpot, the plaintiff asked Mr Tjhen to call Mr Lie and ask him to return. In the plaintiff's second affidavit, responding to the affidavits of Ryan and Jones, dated 7 June 2021, at [11] he denied that he or Mr Tjhen had said that Mr Lie had gone for a "sleep" or even mentioning "sleep". He deposed that he said "He had gone across the "street". In his second affidavit, made 7 June 2021, at [7] Mr Tjhen denied that either he or the plaintiff said anything about Mr Lie going to sleep. He made the candid concession given the passage of one and one half years, that he could not recall the exact words he used when speaking to the plaintiff, "but there was nothing said about anyone going to 'sleep'". In his first affidavit, made 16 March 2021, at [9] Mr Lie deposed that it was after speaking to Mr Tjhen that he went to extend the parking meter at his car and to pick up a bag to help the plaintiff carry the Jackpot cash. He did not set out the detail of these conversations but he did depose that the plaintiff asked him to bring back a bag for the carrying of the Jackpot in cash. In his second affidavit, responding to the affidavits of Mr Ryan and Jones, dated 7 June 2021, at [9] Mr Lie deposed that he spoke to Mr Tjhen in words to the effect "I will go and put some money in my parking meter. I will be back in a few minutes," before he departed and that as he was leaving the plaintiff said to him "can you bring back a bag? I want to be paid in cash", to which Mr Lie responded "Okay. I have one in the car".
As I have observed at [94] above, the CCTV shows that having returned from the bathroom, Mr Lie re-joined the plaintiff and Mr Tjhen in front of the YTT machine and handed cigarettes to them before leaving the VIP Room. At 5:02:32 pm, the CCTV shows that the plaintiff, Mr Lie and Mr Tjhen spoke to each other, when together, before Mr Lie departed. The video is objective evidence upon which it is reasonably to be inferred that whether Mr Lie told both Mr Tjhen and the plaintiff directly that he was leaving to attend the parking meter or spoke directly to Mr Tjhen, all three of them were in position to have heard him say that.
During cross examination, the defence witnesses, Mr Ryan and Mr Jones agreed that winning a Jackpot of $284,000 would be an extremely exciting event for any patron. Plainly it would be extraordinary for a winner of such a large jackpot to have left the gaming machine at the guard of a friend so as to "have a sleep". When this was put to Mr Jones, he said that is why he recalls "sleep" having been said.
During cross-examination the plaintiff denied that either he or Mr Tjhen spoke the word "sleep" and during cross examination repeated that he had responded to the enquiring of the whereabouts of the person who had pressed the buttons (Mr Lie) "he's gone across the street": T 122. 19 - 24. Mr Tjhen, was not cross examined on the passage of his second affidavit, made 7 June 2021, from which I quoted above.
The CCTV footage of Mr Lie having not immediately left the VIP Room after the event of the Jackpot but leaving after speaking to Mr Tjhen, attending the bathroom, returning to the VIP Room to hand out cigarettes and talk with the plaintiff and Mr Tjhen, an apparently normal and unhurried course of activity; then Mr Lie's normal manner of passage including dalliances about the Casino premises to speak on his mobile phone and smoke a cigarette before his crossing the street and returning with a bag which was not in his possession before leaving; is evidence positive of an inference that he attended a car to retrieve the bag. It is evidence corroborative of the evidence of the plaintiff, Mr Lie and Mr Tjhen that he told them he was departing to put money in the parking meter of his car. It is evidence corroborative of the plaintiff and Mr Lie that the plaintiff asked him to bring back a bag in order to carry the Jackpot cash. In those circumstances, except for the evidence of Mr Ryan and Jones that they were told Mr Lie had departed to "sleep", the evidence is positive of that inference.
Another witness for the defence, Ms Handley, a Security Officer employed at the Casino was not in attendance at the time of the first disputed conversation involving either "sleep" or "street" having been spoken.
The plaintiff's first (repeated in his second) affidavit evidence was: [13] staff; "I can see that you are not the player of this machine, can you get the person who played the machine to come back here." I said; "its my money, my friend only pressed the buttons for me." Staff; "I need to see him. The person who presses the button is the winner of the jackpot." "Hengky was also there at the time and I asked him to call Lois for me" (Hengky is a reference to Mr Tjhen; Lois is a reference to Mr Lie) Mr Tjhen's first affidavit at [5] (repeated in his second affidavit at [7]) put that conversation in words of the same effect but not in identical words.
The second passage of disputed conversation which occurred after Mr Lie had returned to the VIP Room. On that second occasion, initially, all three of the plaintiff, Mr Lie and Mr Tjhen were dealing with Mr Ryan in the VIP Room. A few minutes later Ms Handley, a Casino Security Officer, arrived. In the affidavit evidence in the defence case, only Mr Ryan and Ms Handley deposed to their recollection of what was said. In his affidavit made 16 April 2021, Mr Jones concluded by saying that when Mr Lie returned at about 17:20 pm, he checked Mr Lie's ID on the Casino's systems when Mr Lie handed over his drivers license for that purpose. This occurred in the foyer immediately outside the VIP Room whilst Mr Ryan was inside with the plaintiff and Mr Tjhen. Mr Jones then told Mr Ryan "this guy is an excluded person". At [26] Mr Jones deposed that shortly afterward, on the arrival of the Casinos Security Team, he ceased to have any further involvement in the matter.
In her affidavit made 16 April 2021, Ms Handley deposed that she arrived at the VIP Room at 17:26 pm when Security Officer Shrestha was present with the plaintiff, Mr Lie, Mr Tjhen and Mr Ryan. During cross examination Ms Handley was shown to have no recollection of the conversations of any evidentiary value. The transcript shows that questions were initially repeated when she offered no answer. There were long pauses while she tested her recollection and with few exceptions she answered that she did not recall, when the question put to her the effect of the conversation deposed to by the plaintiff witnesses. She was a truthful witness when making those concessions. Exhibit 4 is a contemporaneous statement by her made in accordance with her functions as a Security Officer. It contains no useful content of conversations. One thing she did recall was Mr Ryan saying words to the effect that the Jackpot money would go to the government. Mr Jones also recalled Mr Ryan saying words to that affect. Mr Ryan denied having made the statement, effectively answering it was not his manner of speaking. The simple observation is that of the total of six witnesses present during the two conversations, five recalled Mr Ryan making a statement which he denied having made. It was a significant thing to have said because it represented the defendant's then perceived legal position which was the focus of Mr Ryan's participation in the S.O.P. One would expect him to have remembered it. His answer displayed that he did not well recall the conversations.
It is common ground that Casino staff informed the plaintiff, Mr Lie and Mr Tjhen that only the person who pushed the buttons could win the Jackpot. It is common evidence that the Casino staff informed Mr Lie that he was an Excluded Person and was not entitled to the Jackpot Winnings. The important contested passage of the second disputed conversation speech is that in the plaintiff case, he, Mr Lie and Mr Tjhen each deposed to Mr Lie having said words to the effect; "I am just playing for my friend here, it's his money. You can go and check the camera.": plaintiff first affidavit [15], second affidavit [17]; Mr Lie first affidavit [10], Mr Lie second affidavit [14]; Mr Tjhen first affidavit [7], Mr Tjhen second affidavit [7]. Mr Ryan deposed in his affidavit at [24] that Mr Lie spoke to him words "….I won the money. You have to pay me" and "You owe me the money. I will get a lawyer"; Mr Ryan's contemporaneously made note entry, exhibit JR-3 to the affidavit of Mr Ryan is significant in only two respects: 1. Firstly, it contains nothing of conversations and therefore was not a useful source for refreshing of Mr Ryan's memory when he made his affidavit more than one and a half years after the event; and 2. It is consistent with the common evidence that his superior in the surveillance team, Mr Albulario told him that "the person you gave the champagne to is not the person who had won the jackpot. That person was wearing a red shirt and was with the two guys you are standing with. He left the gaming area when the jackpot was triggered."
Of course, the recital of the history earlier in these reasons, drawn from the CCTV, shows that Mr Albulario was inaccurate. Mr Lie had not left the gaming area when the Jackpot was triggered. He had spent some minutes afterward engaging with others in the VIP Room before departing it to walk through the Casino and had lingered about the Casino before continuing to proceed up the street and across the street and then returning to the Casino and indeed playing a machine on the main gaming floor, before he received Mr Tjhen's call to inform him that the casino staff had requested his return to the VIP Room.
Each of the plaintiff, Mr Lie and Mr Tjhen deposed in their affidavits that those words were not spoken by Mr Lie. Again Mr Tjhen was not cross examined on his evidence of the conversations deposed to in his affidavits.
Mr Ryan presented as a "wooden" witness in that he impressed as unwilling to concede anything which he was concerned might be not in the interests of the defendant. An illustration of this is the difficulty Senior Counsel for the plaintiff had extracting from him the acknowledgement of the simple and uncontested fact that the Membership Card extracted from the YTT machine and given to Mr Ryan on his attendance on the VIP Room was the plaintiff's Card. This passage of evidence appears at T 243. 36 - 246. 19. Indeed, in that passage he was referred to paragraph 15 of his affidavit which provided: "I also asked to check the plaintiff's ID. I recall the plaintiff provided me with his membership card." Rather than give that oral evidence clearly, at T 245. 11 - 14 he gave the following evidence: Q. Is this right: in your paragraph 15, you refer to recalling that the plaintiff provided you with his membership card, correct? A. A patron provided a card. Yes.
Mr Ryan, having been informed by his superior Mr Alubario that the plaintiff was not the person who had won the Jackpot, informed Mr Jones of that and in compliance with what Mr Ryan understood to be the Casino's "process". Following his superior's direction, based on the surveillance, he informed the plaintiff, in the presence of Mr Jones, that the Jackpot could only be paid to the person who pressed the button (T 250. 40). Mr Ryan understood that it was written somewhere in the S.O.P. for jackpots that the winnings could only be paid to a person who pushed the button. But he did not know whether in the hypothetical circumstance of a carer pushing the buttons for their quadriplegic client, to whom the jackpot would be paid (T 250. 49 - 251. 15).
Neither Mr Ryan nor Mr Jones could recall who of the plaintiff or Mr Tjhen had spoken the answer that Mr Lie had gone for a "sleep". Yet despite that imperfection of recollection, neither of them conceded that the word spoken might have been "street". Mr Jones agreed that it would be extraordinary for the winner of a jackpot to have very soon after the event left the process of formalising the jackpot winning to have a sleep. They both acknowledged the obvious, that winners of jackpots are excited people and having a "sleep" did not fit with that scenario. Neither of them conceded that the Indonesian accented speech of the plaintiff and Mr Tjhen might have caused them to mishear. Mr Jones acknowledged that his review of the CCTV showed Mr Lie having crossed the street and returning with the black bag. He still refused to concede that he might have heard "street" even though "sleep" would have been "ludicrous" speech (T 268. 25 - 37). Finally he conceded "there's a possibility of anything", that because of the accents which the gentlemen spoke, he might have misheard the pronunciation of the word (T 268. 39 - 50).
I found, as he answered these questions, that Mr Jones presented an awkward attempt to maintain his affidavit evidence, in support of the defendant case that Mr Lie's departure after the Jackpot was a scurrilous attempt to avoid his detection as an Excluded Person who would not be able to collect it. In that consideration, as deposed to in his affidavit, Mr Jones, like Mr Ryan, frequently attended jackpots and regularly dealt with Excluded Persons (at [10]). He and Mr Ryan appeared to be compelled in the process, as they understood it, of checking the legitimacy of the plaintiff's Jackpot winning, with a strong preconception that there had been a switch of player for that purpose. The trigger and motivation of that preconception was the instruction from Mr Alulario that the plaintiff was not the person who had won the jackpot.
In my opinion it is significant, that whilst Mr Ryan was adamant that Mr Lie had not said that he was helping his friend who could not use his arms and that he was not gambling his own money (T 259. 40 - 44), Mr Jones agreed that Mr Lie did say words to that effect (T 264. 35). Mr Jones gave the clear answer "I know he told Jamie that he was playing on behalf of his friend, and that, that's it": T 264. 50 - 265. 2. ("Jamie" was a reference to Mr Ryan).
Whereas in his affidavit at [24] Mr Ryan deposed that in the second passage of conversation, Mr Lie said words to the effect; "what do you mean? I won the money. you have to pay me", in his oral evidence he agreed that Mr Lie did not say that. The passage of evidence at transcript 260. 4 - 5: Q. Mr Lie certainly didn't say "I won the money. You have to pay me"? A. I agree. Didn't say that.
On the whole of the evidence of the witnesses to the conversations, both the first and second passages following the event of the Jackpot, for the reasons given, I prefer the evidence of the plaintiff, Mr Lie and Mr Tjhen over that of the witnesses of Mr Ryan, Mr Jones and Ms Handley.
On the whole of the evidence of the circumstances including conversations following the event of the Jackpot I am satisfied that on the balance of probabilities Mr Lie departed the VIP Room in order to attend his parking meter, he having left the plaintiff to guard the Jackpot which was the plaintiff's Jackpot. Consideration of the CCTV, the actions of the plaintiff, Mr Lie, Mr Tjhen, Mr Ryan, Mr Jones and Ms Handley and the conversations which took place, do not dissuade me from that conclusion.

Swapping the card - Lie's VIP Room entry

It is convenient to now discretely consider the evidence of the plaintiff permitting Mr Lie to use the plaintiff's Card to enter the VIP Room in order to assess the defendant's submissions (see paragraph 42 above) that this was done in order to avoid exposure of Mr Lie as an Excluded Person, for the purpose of the plaintiff assisting Mr Lie to gamble within the Casino. The plaintiff case is that he did so was for the purpose of Mr Lie operating the gaming machines for him, the plaintiff having instructed that they leave the machines on the main gaming floor in order to play the machines in the VIP Room. But the defence presses also that the plaintiff's clandestine course of action, should be found, with the other evidence of the case, to expose the lack of credit in the plaintiff's claim that, in fact, he was the wagerer.
The defence allegation assumes that Mr Lie and the plaintiff were aware that Mr Lie remained an Excluded Person dispute his unfettered access to the Casino during the preceding 6 months. Such knowledge would be contrary to Mr Lie, in the contemporary dispute with Mr Ryan, Gaming Machine Manager, following the Jackpot, having said as both Mr Ryan and Ms Handley (Casino Security Officer) depose, that his 2016 exclusion had been only for 6 months: Ryan Affidavit 15 April 2021 at [24]; Handley Affidavit 16 April 2021 at [15].
I am satisfied that Mr Lie and the plaintiff moved from the main gaming floor to the VIP Room because the plaintiff chose to change gaming machine and directed Mr Lie in that move. There is no evidence to the contrary. The plaintiff's Card permitted him and a guest access to the VIP Room. Mr Lie did not have a membership card. The evidence does not explain, putting aside the Exclusion Order, whether or not Mr Lie would have been entitled to a membership card of the status which permitted the holder access to the VIP Room. Again, the evidence of the plaintiff and Mr Lie is that they assumed he was no longer subject to the 2016 Exclusion Order because of the unrestricted access which he had been permitted over the preceding 6 months.
When they moved to the VIP Room, the plaintiff and Mr Lie practiced the same procedure as they had done throughout that six months when they had together gone to the VIP Room. They would share, and did on 25 October 2019 share, the plaintiff's Card in order to avoid them following the Casinos standard procedure which required the member with a card of the status for entry to the VIP Room to sign his guest in. That procedure would have required the plaintiff to attend Casino staff at a reception desk near the entry to the VIP Room. There the plaintiff would have had to produce his Card, and Mr Lie, as his guest would have had to produce proof of identification, Mr Lie would have had to sign a document.
Because the plaintiff's conduct of avoiding that procedure by sharing his Card, it being passed between them over a low garden area at one end of the VIP Room, was so much of the defendant's case that the plaintiff and Mr Lie should not be believed, I set out substantial portions of their cross examination evidence.
In the following passage it can be seen that the plaintiff conceded that they were circumventing the guest sign in procedure in which Mr Lie's identification would have been checked, conceded that their practice of physically sharing the card was against the Casinos Standard Procedure, and whilst answering in a cooperative way, adamantly maintained that he assumed Mr Lie's Excluded Person Order had lapsed. In particular, with his imperfect use of English language, from some answers read in isolation, it might be understood that the plaintiff conceded that on 25 October 2019 and for the preceding 6 months, the plaintiff permitted Mr Lie to use the plaintiff's Card to enter the VIP Room in order to avoid the guest check in process which would have identified Mr Lie as an Excluded Person. As I listened to his evidence carefully and observed the plaintiff attempting to cooperatively answer questions, I accepted with confidence that not to be his meaning. His meaning was, as he answered on several occasions, that on 25 October 2019 he was not aware that Mr Lie was an Excluded Person and indeed does not think that Mr Lie was aware of that. What the plaintiff's evidence, as he gave it, showed is that he was aware that previously, years before 25 October 2019, Mr Lie had been an Excluded Person. His evidence was that their practice was one commonly exercised by other patrons and not just by the plaintiff and Mr Lie. In any event, they were aware of observation by the Casino surveillance: (before Luncheon adjournment) T 91. 6 - 92. 14; (after Luncheon adjournment) T 97. 14 - 104. 44. Q. You have already told the Court that you were aware that you could've signed him in as a guest? A. Yes, what happened is-- Q. Is that-- A. I used, I used to give him my membership card to get into Vantage for the last six month. Q. I'll come to that, but you didn't go to the front desk for Mr Lie and try to get him in as a guest, did you? A. That's right. Q. You didn't do that, could I suggest to you, that was because you knew that Mr Lie was excluded? A. Years ago. Q. You knew that he was excluded-- HIS HONOUR: What was the answer? AFSHAR: Years ago. Q. You were aware that Mr Lie had been excluded, is that right? A. That's right. Q. Is that the reason why for a period of six months before October 2019 and including 25 October 2019, you gave him your card to enter the VIP Vantage area? A. That's correct. Q. You gave him the platinum Vantage card, did you observe him enter the VIP Vantage room? A. Nah, he just go himself. Q. Was it the arrangement that then he would give you the card from the back of the VIP Vantage area? A. Correct. Q. You have spoken about you giving him your card to enter the VIP Vantage area, and for him to then give it to you from the back of the Vantage area, is that right? A. That's correct. Q. That was because at the back of the Vantage area, there was an area that was open, in effect, in that there was a mid-level wall and there were certain plants, but there was access to the general area of the casino, is that right? A. That's right. Q. You were aware of that fact, isn't that right? A. Yes. Q. Indeed what happened was Mr Lie entered the Vantage room, walked to the plants - if I could put in that way - you came towards him and he gave you the Vantage platinum card? A. That's correct. Q. You took the platinum card and you walked around, you swiped the card with your right hand and you entered the VIP Vantage area, is that correct? A. That's correct. ….. LUNCHEON ADJOURNMENT (T 95.29) Q. And you did so because you knew that he was unable to obtain a guest pass from the front desk, as he was an excluded person, isn't that right? A. I have no idea he's..(not transcribable)..person. Q. You knew that he was an excluded person at the time? A. Years ago once he entered the casino a few times, I don't know that he's a excluded person. Q. Well, you knew for a number of years that he was an excluded person? A. That's right. Q. And you said before the break that for a period of six months before October 2019-- A. That's right. Q. --whenever you went to the VIP vantage area, you gave him your card for him to enter VIP vantage area, is that right? A. That's right. Q. And before the break, you said to his Honour that the reason why you gave him your card was that you knew he was an excluded person for the six months period before October 2019 and up to October 2019, you agree with that don't you? A. Agree. Q. So, when it came to giving him your card, you gave him your card because you knew that he wouldn't be able to get into the VIP vantage area without your card? A. Not that one, because every time I give my card to him, he has no problem to get in there you know? Because once you enter the casino, I thought he's a, not excluded person. Q. Well, I'm going to suggest that that answer is not correct, and I'm going to suggest to you that you were aware that walking into the general area of the casino was easy, you were aware of that weren't you? A. That's correct. Q. But that in order to get into the VIP vantage area, you had to swipe the card? A. That's correct. Q. And you knew that there were people there at the desk who from time to time checked the identity of the people going into the VIP Vantage room, that's why you had to swipe the card? A. That's correct. Q. And so, when it came to giving him your card, you knew that you were giving him the card so that, in effect, he was swiping in as you? A. That's right. Q. And he wasn't swiping in as himself, that's right isn't it? A. That's right. Q. He wasn't swiping in as himself, you understood as at October 2019, because he was excluded. A. I had no idea he already excluded from the casino because as I told you years ago I knew he was excluded. By the time he come the last six month, he play the baccarat table, he play the poker machine, he play the roulette machine. He has no idea that he's an excluded person too. Q. Is it the case that you are seeking to walk away from the evidence - I'm sorry, you are trying to give evidence that is different to the evidence that you gave before the break? A. No, I think I said, said the same. Q. Because the evidence that you gave before the break, and you agreed with me a moment ago-- A. Yep. Q. --was that for the period of six months before October 2019 and on 25 October 2019, you knew that Mr Lie was an excluded person. A. That is right. Q. So as at that time with that knowledge, you were aware that if you didn't give your card to Mr Lie, he would not be able to enter the VIP Vantage room-- HIS HONOUR: Can you just stop for a second? AFSHAR: Sorry. HIS HONOUR: I don't have the transcript in front of me. The question you put went beyond the note I kept. Mr Kelly, do you have a note? KELLY: Not a very good one. HIS HONOUR: See, there's two propositions. One is about - sorry, because of how he's given his answer, about years ago, there's a relevance as to knowledge of years ago and knowledge as of October or months before October. It's in that latter category that my note, which may be inaccurate, was that the questions and answers went this way, this is before lunch. He answered, "I asked Lie to the" - sorry, are you prepared for me to read these in front of the witness? AFSHAR: Yes. HIS HONOUR: "I asked Lie to the VIP room and gave him my Zip card and had done for six months." He agreed that he did not go to the front desk and try to get Lie in as a guest. It was put, "Because you knew Lie was excluded." My note of his answer is, "Years ago." The question you just put was, "And six months ago," "And in the last six months," wasn't it? AFSHAR: That is the next question I asked, and I said-- HIS HONOUR: According to my note - "So that's the reason why six months pre 25 October you gave him the platinum Vantage card to go to the VIP area." "Yes." But if that's as far as we're going with the inquiry, that reason that he's answering in the affirmative to is knowing that years ago he was excluded. You've just put that his evidence before lunch was that he knew in the six months before 25 October he was excluded. I just have an obligation, but I think I'm satisfying it, my obligation of s 41, basis of unfair. It's one thing to ask a question, it's another thing to say to the witness, "Your evidence was," and it didn't meet with my recollection of his evidence before lunch that your question was precisely accurate. Now I could be wrong. But I do not recall him before lunch having said that he was aware of the exclusion persisting at six months before. You might have joined dots and you're entitled to test that with cross examination, but not to put to him that he's already conceded it if he has not. AFSHAR: If your Honour pleases. Your Honour has your Honour's note. I don't have any notes of course as I'm on my feet. But my recollection was that further questions were put, but I think in fairness to the witness, I should put very fair propositions to him that he can then have the opportunity to answer. So if your Honour permits me to do that, I might do so-- HIS HONOUR: I'm not stopping you from doing anything. AFSHAR: Not at all. HIS HONOUR: I'm raising something for the attention of counsel. AFSHAR: Yes. HIS HONOUR: I don't think I even ruled against you on the question. Ask it again. AFSHAR: Your Honour didn't. HIS HONOUR: If Mr Kelly doesn't object, I won't. But-- AFSHAR: No, I-- HIS HONOUR: --I've expressed my concern. AFSHAR: If your Honour pleases. Q. Can I just, to clarify this, at the time you gave Mr Lie the platinum card to enter the VIP Vantage area, you knew as at that time that Mr Lie was an excluded person. A. No. Q. You were aware, were you not, that he could not enter the VIP Vantage room without getting your card? A. No. Q. That is why you gave him your card to enter the VIP Vantage area rather than going to the front desk, having him present his idea, and for you to obtain a guest pass for him, isn't that right? So you didn't go and get the guest pass, instead you gave him your card. A. That's correct. Q. You didn't go to the front desk to get a guest pass because that required Mr Lie to present his ID and you knew if that happened then it would be revealed that he's an excluded person and he would be removed from the premises. Isn't that right? A. I didn't know on that six, the last six months he was excluded because every day, like, every week, he'd come to the Star Casino easily and I get my card, he just passes so easily too. Q. Anyway, the proposition I'm putting to you is that you were aware when you gave him your card that he was an excluded person and he couldn't get in the VIP Vantage room otherwise. A. No, I did not. Q. That is why you had the arrangement with Mr Lie whereby you give him your card, he would come into the VIP Vantage area and then give you the card from out the back, isn't that right? A. That's correct. Q. The reason you had that arrangement was because you knew he was an excluded person on 25 October 2019. A. No. Q. Because otherwise what you would have done if you didn't know that he was an excluded person, you would have gone to the front desk and got him a guest pass. A. Because I want to make it fast, easy, I just give him my card. It's faster like that every time. Q. It wasn't just to make his life easy. It was to enable him to do something which you knew at the time he was unable to do. That is to be on the premises or to enter the Vantage VIP room. A. That's correct. But the last six month, he can, he can play in the casino, like, table, baccarat, everything. No one kick him out, you know? There's a, he himself doesn't know that he's excluded person. Q. So what you're saying is that you knew that he was an excluded person but that you had assumed because he had attended the premises for a number of months-- A. Yep. Q. --that he wasn't an excluded person? A. That's right. Q. But no one told you that he had had the exclusion removed? A. No, no one told me. Q. It was an assumption that you made, is that right? A. Assumption? Q. It's an assumption that you made that he wasn't an excluded person. Is that your evidence? A. That's right. The last six month - but years ago, I knew that he was excluded. Q. I'm going to suggest that that answer is untrue and that if you had assumed that he wasn't an excluded person you would have gone to the front desk and had obtained - would have obtained a guest pass for him. A. Because, because I realised every time when he enter casino, no one came out, you know, and I tell you already, like, every week he come, like three, four days, with us, we play, even he play by himself sometimes, the baccarat table, the cameras in there can recognise him. That is why he himself doesn't know that he's already excluded person. That is why he kept coming. Q. Could I suggest to you this? If you gave him your card to come into the VIP Vantage room as you rather than revealing his own identity, of course it would have been the case that no one would ask him to leave. You accept that, don't you? A. Yes, I accept. Q. Because he was entering the room as you, not as he himself, isn't that right? A. That's right. Q. That was the purpose for which you gave him your card, namely to enter this room as you. A. That's right. Q. So my suggestion to you is, and that was exactly what you were trying to achieve by giving him your card. That is to enable him to come in as you and not reveal his own identify. A. That's correct. Q. Yes, and it was because you knew that if you revealed his identity, he would be removed from the casino. Isn't that right? A. Maybe. Q. Maybe? A. Maybe, because I didn't know at that time he was excluded, I told you already. Q. You say maybe. Why do you say maybe? A. Because I didn't know. I didn't know he was excluded. The, remember I tell you the last six months, he just kept coming with us and playing in the casino, playing the gaming floor, everywhere. Q. Can I ask you again why did you say maybe? A. I don't know. Maybe, I just, I have no idea. Q. Can I suggest to you that you knew that there was a risk that if he revealed his identify that he would be removed? A. Yes. Q. You knew that at the time, didn't you? A. To be honest, I didn't know, and that is why every time when I give my card, he just said, "Just give me your card," every time he'd try one, he'd get through, he'd get through. All the time I just give him my card. And the reception never check on him. Q. Did you ask him why he kept asking you go give him your card? A. No, I never ask. Q. Did it raise a matter in your mind as to why it is that this man doesn't have his own card? A. He doesn't want a card he said. Q. He doesn't want a card? A. He doesn't want a card. Q. I'm going to suggest to you the reason he didn't have a card was because he couldn't get a card because he was an excluded person. A. But I didn't know about that. Q. I'm just going to suggest that you did know about it. So do you accept that or do you not? A. I accept if he asked for the card maybe he wouldn't get it. Q. But you knew about the fact that he didn't have a card? A. Yes, I knew he didn't have the card. Q. And he asked for your card? A. That's right. Q. And you knew that without the card he wouldn't be able to get into the VIP Vantage room? A. That's correct. Q. And you gave him the card knowing that he would not otherwise be able to get into the Vantage room? A. That's correct. Q. And you knew that he was representing by swiping the card and going to the Vantage room that it was you? A. That's right. Q. Yes, and you allowed that to happen, is that right? A. That's right. Q. You allowed that to happen because you wanted him to be able to get into the Vantage room to play, isn't that right? A. That's right. Q. That's because you knew as at October 2019 that he was otherwise excluded from the casino. A. In that day on 25 October, I'm the one asking to go to Vantage room. Q. You asked him to go to the Vantage room? A. Yes. Q. Did you know at the time that he was an excluded person? A. No. Q. I'm going to suggest that that answer is untrue. Do you accept that? A. No. Q. It was part of the arrangement that you had in relation to the entry into the Vantage room that-- KELLY: I object, your Honour. There was no-- AFSHAR: I'll start again, I can start again. I withdraw that question, your Honour. Q. There was an arrangement between you and Mr Lie in relation to you giving him your card for him to come into the VIP Vantage room, is that correct? A. That's right. Q. You were aware, were you not, that you couldn't swipe your card twice to get in, didn't you? A. We can swipe my card many time, once you go up on the Vantage room. Q. But every time you swipe, you are aware that they were checking the entrances and who was entering into the VIP Vantage room? A. That's correct. Q. You were aware that the first person who went in had to pretend to swipe their card, but not swipe the card, isn't that right? A. I have no idea he swipe or not. Q. You'd understand when I say it's a dummy swipe? A. Dummy swipe, yes, I knew. Q. You understand that? A. Yes, I understand. Q. You understood that that's what he had to do to get in before he gave you the card for you to come in properly? A. I don't know he swipe or dummy card. Q. When you came in, you swiped it properly? A. That's right. Q. But you knew that he didn't swipe it properly? A. I don't know. Q. That was the arrangement that you had, isn't it? A. No. Q. The reason why you engaged in this arrangement that I've just asked you about, was because you wanted to allow Mr Lie to gamble, even though he was an excluded person, isn't that right? A. That's right. But I sure that he's not excluded person when I knew him the last six month. Once he can enter the casino, I realise that he's not excluded person. Q. That's an assumption that you made, isn't it? A. That's what I - even himself, he doesn't know he's a excluded person because he still can keep playing in the casino.
In the following extensive passage of transcript of cross examination, Mr Lie is shown, typical of his giving oral evidence, to be a cooperative witness. He adamantly denies having been aware that he was an "Excluded Person", explaining that he assumed because of his un-restricted access on more than 30 visits to the Casino, that the 2016 Exclusion Order had been "automatically" revoked with the passage of time. Whilst conceding his awareness of the guest sign in procedure, he was unshaken in his denial that the card passing procedure in which he participated with the plaintiff was for the purpose of avoiding his giving identification to the staff. Consistently with the above quoted oral evidence of the plaintiff he explained that it was common practice amongst patrons to share a Platinum Vantage Card between the member and his/her guest because it was quicker and easier. He explained that he knew that the card passing practice would have been surveilled by the Casino's surveillance cameras, as would be his entry to the VIP Room. He, like the plaintiff before him, did not concede that he "dummy" swiped the plaintiffs card: T 165. 4 - 168. 47. Q. At some stage, he gave you his card so that you can walk into the VIP Vantage area with the card, is that right? A. Yeah. Q. The idea was that you walk into the VIP Vantage area, pretending to be Mr Joe, isn't that right? A. Yeah. Q. The idea was that you would walk in there, go through the VIP Vantage area and then hand the card back over some plants? A. Mm. Q. Back to Mr Joe? A. Yeah. Q. Is that right? A. Yeah. Q. That was to ensure that Mr Joe could return-- A. Yeah. Q. --to the VIP Vantage area, is that right? A. Yeah. Q. When you took the card and used it to come into the VIP Vantage area, you did so because you were aware than you're an excluded person, is that right? A. No. Q. In fact you had told Mr Joe that you were an excluded person, isn't that right? A. No, but he know. Q. Did you ever tell Mr Joe that you were an excluded person? A. Yeah I did, I did, but long time. Yeah long time ago, like 2016. So everybody knows I'm already automatically not been anymore. Q. Sorry, what was the last words that you said? HIS HONOUR: "And everybody knows that I'm not automatically anymore". AFSHAR Q. But you hadn't told anyone that you had made any application to revoke the order? A. Yeah because they - yeah, but they see me more than 30 time in casino playing on one and one with the dealer, and then change chip in the cashier. All activity like not exclusive. Q. But the entry into the VIP A. That's why I've, that's why I've thought I, I automatically already not excluded. Q. If you as you say thought that you had not been excluded or that the exclusion had somehow been automatically revoked, you didn't need to use Mr Joe's card to come into the Vantage room, you could've presented yourself at the front desk and with Mr Joe gotten a guest pass to go in there, isn't that right? A. Not at that - no, no. Q. You understood that one of the prerogatives of someone with a platinum card was to get a guest to come into the VIP room, isn't that right? A. Yes I know, but Q. And if you HIS HONOUR: No, sorry, "You understood", "Yes I know but", let him finish his answer. You're talking about understanding. AFSHAR Q. Please finish your answer. HIS HONOUR Q. You were asked about your understanding. HIS HONOUR: What was the question, Mr Afshar? AFSHAR Q. It was your understanding that - let me go back one step. It was your understanding that one of the prerogatives of the platinum card was that the holder of the card could get a guest pass for a guest to go into the VIP area, is that right? A. Yeah, but everybody does, everybody do like that, everybody just pass, yeah, just give the card to anyone and then you can get in easily. Q. Well I'm asking about Mr Joe giving you his card, not about everybody else, I don't know who these "everybody" are. Can I ask you this; if you thought that the exclusion order had somehow automatically revoked, or had been automatically revoked, what you would have done is you would've gone to the front desk, presented your ID and got a guest pass, isn't that right? A. No. Q. That was easy enough to do wasn't it? A. But more easy if you just pass through. Q. It was easy enough to show your licence, which you had on you on the day, to the front desk and get a guest pass wasn't it? A. No, not that - no. Q. It would've taken a matter of tens of seconds, perhaps a couple of minutes, for you to get that guest pass, isn't that right? A. No. Q. But going to the front desk would've required you to reveal your identity to The Star staff, isn't that right? A. No, because everybody like that. Q. You didn't want to do that, isn't that right, you didn't want to reveal your identity to The Star, is that right? A. No. Q. That is why you took Mr Joe's card and walked into VIP Vantage room pretending to be Mr Joe, isn't that right? A. No. Q. So the time that you A. Because I told you it's easier if just pass the card and then go. You don't need to sign anything, just go, because everybody does like that, easier. Q. You know that from your experience of going to casinos and to gaming rooms, that there's a requirement of entry to show your identification? A. They can see from camera. Q. You know that it is a requirement to show you identification, isn't that right? A. To get into where? Q. Get into the VIP Vantage room for example? A. No I think, I think camera everywhere, I thought they know who I am. Q. Is that a serious answer to this Court? A. Yeah. Q. As you were walking to the entrance of the VIP area, you didn't actually swipe the card did you? A. No I, I did. Q. What you did was you dummy swiped it, you pretended to swipe it didn't you? A. No I did. No, no I did, no I did. Q. And HIS HONOUR: Excuse me. Q. Have you finished your answer? A. Yeah I remember I did, I swipe. AFSHAR Q. Well I'm going to suggest to you that you didn't swipe, what you did was you dummy swiped, you pretended to swipe but you didn't actually swipe the card, isn't that right? A. No. Q. And you did that because you were aware that you can only swipe in once as you enter the VIP room, isn't that true, you're aware of that? A. No I think I swiped it. HIS HONOUR Q. I didn't hear that answer, I'm sorry, keep your voice up. A. I think I swiped it, yeah. Q. You think you swiped it? A. Yeah, I think I swiped. AFSHAR Q. When you went into the VIP room, you walked across to the corner of the VIP room and you handed your card to Mr Joe didn't you? A. Mm. Q. Is that right? A. Yeah. Q. Mr Joe then used the card, as you saw him, enter into the VIP Vantage room, is that right? A. Yes. Q. And you started - you as in you, Mr Lie and not Mr Joe - you started playing on the machines? A. Yeah, because he had told me to. Q. Did you play on the machines? A. Mm? Q. Did you play on the machines? A. Yeah, because he told me to. Q. Mr Joe didn't play on the machines did he? A. No, he standing beside me.
I accept that the practice of passing the Platinum Vantage Membership Cards across the garden and whilst under the surveillance of the Casino cameras, was common and was engaged in for the convenience of avoiding the guest sign in procedure which from time to time, included an identification check of the guest. That procedure was not a short one of only seconds or minutes. That evidence dilutes the approach put in cross examination of the plaintiff and Mr Lie, that they engaged in a nefarious procedure adopted by them only in order to avoid the Excluded status, known to them, of Mr Lie being detected by the Casino. The CCTV shows Mr Lie entered the VIP Room at 15:05:17 pm, and having walked through the room to the garden at 15:05:50 pm, handed the Card to the plaintiff. The plaintiff entered at 15:06:15 pm and immediately (at 15:06:27 pm) handed his Card to Mr Lie for him to continue operating gaming machines whilst the plaintiff's Card was inserted in the machine. Mr Lie played a first gaming machine within the VIP Room with the Card inserted before, as he was instructed to do by the plaintiff, changing to the YTT machine where he continued operating it whilst the plaintiff's Card was inserted.
On the whole, the evidence concerning entry of the plaintiff and Mr Lie into the VIP Room is not inconsistent with the plaintiff case that he and Mr Lie entered the VIP Room whilst unaware that Mr Lie was an Excluded Person and Mr Lie continued to operate gaming machines, including the YTT machine, whilst watched by the plaintiff and Mr Lie, made choices as to which buttons to push on the gaming machines which Mr Lie was directed to operate by the plaintiff up until the Jackpot. That Mr Lie entered the VIP Room at the plaintiff's facilitation by use of the plaintiff's Card in breach of the Casinos protocols is adequately explained as done for convenience. Unless the evidence caused me not to accept that the plaintiff was unaware of Mr Lie's Excluded Person status on 15 October 2019, the proposition that this use of the Card was nefarious falls away. My acceptance of the truth of their evidence is buoyed in the circumstances of the plaintiff's knowledge that Mr Lie, after being an Excluded Person in 2016 and for a substantial time, had freely and openly gambled at the Casino many times over the preceding 6 months, I do accept their denials of knowledge of the currency of Mr Lie's Excluded Person status. This in addition to my examination of the post-Jackpot conversations and my following consideration of the Voluntary Exclusion Order documentation does not dissuade me from so finding.

Further as to credit of witnesses in the Plaintiff Case

The plaintiff made many appropriate concessions during cross examination. Amongst these, I considered it indicative of the reliability of his evidence, that he freely conceded that at no point did he, whilst at the Casino, provide the funds to Mr Lie which Mr Lie used in the physical gaming activity. He conceded that he had regularly over approximately six months permitted Mr Lie to use his Card to gain access to the VIP gaming area despite knowing that, regular patrons of the Casino were not permitted that access. Mr Lie was also not shown to be an uncooperative or untruthful witness. The objective evidence of the CCTV footage provided significant coverage of the action of all of the witnesses, particularly the plaintiff, Mr Lie and Mr Tjhen. Inconsistencies with that objective evidence do not appear in the evidence of any of them. At the same time, they were plainly aware of surveillance by CCTV including at the passing of the plaintiff's Card through the garden at the back of the VIP Room. The CCTV shows that to be the fact.
Whilst it was put to each of the plaintiff and to Mr Lie that Mr Lie "dummy swiped" the plaintiff's Card to enter the VIP Room, there is not evidence positive of that "dummy swipe", to consider against their denials. Both the plaintiff and Mr Lie gave evidence that the Card could be swiped repeatedly for entry to the VIP Room and specifically denied knowing "….you couldn't swipe your card twice to get in"; cross examination of plaintiff T 104. 5; cross examination of Lie T 168. 11 - 14.
Another concession against self-interest made by the plaintiff was that when pressed as to his recollection of the conversation between Mr Lie and the Casino's officers following the Jackpot, he said that he could not recall or did not hear all of that which Mr Lie said. He was able to recount the conversation sufficiently to deny that Mr Lie, so far as he heard, protested that the money was Mr Lie's; but he did not take the opportunity, as a less honest witness might have done, to reject all of those parts of the alleged conversation put in cross examination.
Cross-examination of the plaintiff and Mr Tjhen unconvincingly challenged them on the basis of collusion. My assessment of the answers given during cross examination, was that the plaintiff and Mr Tjhen had made their affidavits independently at the office of the plaintiff's solicitor. The short passages of conversation, set out in the first person, are properly preceeded with the concession of best recollection, of time "words to the effect". I have found the plaintiff and Mr Lie to have been an impressive witnesses. Mr Tjhen was only cross examined shortly but I considered him to be an impressive witness who was cooperative and frank. He made appropriate concessions regarding what he could not recall, such as the exact time of arrival of the plaintiff and Lie at his house on 24 October. He was unshaken and convincing in his evidence of observing the plaintiff at his home on 24 October 2019 give Mr Lie $2,000. This corroborated the evidence of the plaintiff and Mr Lie of that event. I have observed that the contemporaneous, objective evidence of the CCTV which exceeds 5 hours is not inconsistent with their evidence. In my opinion, it is a matter significantly in favour of acceptance of their truthfulness and accuracy, that the affidavits of the plaintiff, Mr Lie and Mr Tjhen, were made before the opportunity for them of reviewing the CCTV in 2021, and are consistent with that CCTV.

Mr Lie's 2016 Voluntary Exclusion Order

Mr Lie was taken to the documentation of his 2016 Voluntary Exclusion Order (Exhibit F). That Mr Lie on 25 October 2019 in fact remained an Excluded Person was not in issue at the hearing. The purpose of this cross examination was to challenge his denial of knowledge of the currency of the Order. Whilst the form of the Exclusion Order directed "…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 Monday, 10 October 2016 until such time as it is revoked by the person who gave this order.", that form was not signed by Mr Lie. A separate document headed "Voluntary Exclusion Order" bearing his signature; is Mr Lie's request that the Casino make an Order prohibiting him "from entering or remaining in the casino". This document included Mr Lie's agreement to provide any further evidence of his identity reasonably requested by the Casino and his understanding and acknowledgement that the Casino "will take a photograph on the lodgement of this application." The document states: 1. "I acknowledge that the casino will not consider revoking this order until it has stood for a minimum of TWELVE MONTHS."
Nowhere in the form of Exclusion Order or in the document entitled VOLUNTARY EXCLUSION ORDER signed by Mr Lie, is it stated that the Casino cannot revoke the Exclusion Order. The latter document contains Mr Lie's acknowledgements and agreement that should he seek revocation of the order his application would need to be accompanied by a statement of a recognised counsellor approving his application for revocation. It also contains his undertakings that during the period of voluntary exclusion he would consider himself an excluded person and recognise that it was his responsibility not to enter or gamble within the gaming areas at The Star "being the main gaming floor and the Sovereign Room". A further document, signed by Mr Lie informed him that he was not excluded from The Start Entertainment Group Queensland casinos but that he could choose to self-exclude from them.
In cross examination, Mr Lie said that after some years he re-entered the Casino on a regular basis and for at least six months before 25 October 2019. During that period, he remained unchallenged as he gambled broadly across the gaming facilities at the casino, including playing the gaming machine as well as engaging with cashier's and croupiers. In my opinion it is readily acceptable evidence given by both the plaintiff and Mr Lie that observation of his freedom to enter and wager within the Casino caused them to understand that his exclusion, given years beforehand, had expired. Exhibit 1 CCTV of the main entrance to the Casino on 25th of October 2019, shows Mr Lie in the presence of the plaintiff and Mr Tjhen. Mr Lie walks ahead of them, directly to a Casino Security Officer. The Security Officer is standing between a stairway and an escalator, which I understand to provide access to the gaming areas of the Casino. Whilst that CCTV was shown during cross examination of Mr Lie, in the course of the defendant putting that he tried to re-enter the casino after having been expelled following the Jackpot on account of him being an Excluded Person; what it shows is the free and unchecked entry of people into the Casino. The whole of the Exhibit 1 CCTV, combined with the evidence of Mr Lie's regular and long-term gambling over the 6 months preceding the event of the subject Jackpot, entirely consistent with his evidence of free passage to the gaming areas, which he says, caused him to understand that the Exclusion Order had expired.
I considered it significant that Mr Lie, knew that his movements and activities, including his manner of entry to the VIP area by passing the plaintiff's Platinum Advantage Card across a garden and using it to swipe himself in using the plaintiff's identity, was surveilled. Indeed, the Exclusion Order documentation signed by him, included his agreement to photographic identification of him as an Excluded Person. On the whole of the evidence, I accept the truth of the evidence of each of Mr Lie and the plaintiff that they were not aware that Mr Lie remained an Excluded Person on 25 October 2019, until he was told that he was an Excluded Person by Casino staff after the Jackpot.

CONCLUSIONS

I accept the plaintiff case that on 25 October 2019, the impairment of use of his arms consequent of his suffering Motor Neurone Disease had caused the plaintiff to ask his friend Mr Lie to operate the gaming machines for him. In the context of their playing machines for several hours, the plaintiff's truly significant disability, plainly deprived him of the ability to operate the machines himself for enjoyment. The whole of the economic stake wagered during the operation of gaming machines by Mr Lie, whilst the plaintiff's Card was inserted and he watched and gave Mr Lie directions, was the plaintiff's money. This is what was happening at the event of the Jackpot and the Winnings, the subject of the suit.
I accept that, in the circumstances of Mr Lie having enjoyed unfettered access to the Casino and gambling on its games for the preceding 6 months, the plaintiff assumed that Mr Lie was not an Excluded Person, for the purposes of the Act, even though he was aware that years before Mr Lie had been an Excluded Person.
On those facts, and in accordance with my construction of the Gaming Rules, specifically use of the word "player", I find that the Jackpot was won in the performance of the contract of wager between the plaintiff and the defendant. I reject the defendant case that the contract of wager was between the defendant and Mr Lie. This is because, "player" as used in the "Gaming Rules" is the person taking the economic risk of the bet and is the wagerer.
I have found, on construction of section 86A of the Act, that it had no application to the plaintiff because he was the person "making" the "wager" when he was neither a minor or subject to an Exclusion Order. For completeness, I have found that section 86A does not apply to a person (in this case Mr Lie) because of his participation in playing the machine, because he did not make any wager. It was the plaintiff's wager.
Accordingly, the defendant's failure to pay the Winnings to the plaintiff, whilst understood by it to be bona fide in accordance with it's obligations pursuant to section 86A(3) and (4), was misconceived and breached the contract of wager between the plaintiff and the defendant. It follows that the defendant's payment of the amount of the Winnings to the Responsible Gaming Fund, was an intentional act which was unauthorised by the plaintiff and based upon an unjustifiable assumption of the right to possession of the Winnings and ownership of the Winnings which wrongfully interfered with the Winnings and was inconsistent with the plaintiff's right to the Winnings.
Accordingly, the plaintiff is entitled to damages for breach of contract, and were it necessary for me to decide, would be entitled to damages for conversion in the sum of $284,779.06.
The plaintiff is entitled to interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) in the sum of $34,954.99.

ORDERS 1. Judgment for the plaintiff against the defendant in the sum of $319,733.55 inclusive of interest to date. 2. Defendant to pay the plaintiff's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2022

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