Hinkley v Star City Pty Ltd [2010] NSWSC 1389 | Case summary | Zoe

NSWNSWSC

Hinkley v Star City Pty Ltd

[2010] NSWSC 1389

Supreme Court of NSW|2010-11-26|Before: Ward J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2010-11-26

Before

Ward J

Source

Original judgment source is linked above.

Judgment (132 paragraphs)

[1]

CITATION : Hinkley v Star City Pty Ltd [2010] NSWSC 1389

[2]

CATCHWORDS : ADMINISTRATIVE LAW - whether plaintiff entitled to natural justice in the making of a decision by the first and second defendants (as casino operator and lessee of casino premises respectively) to withdraw any license to enter the casino complex - whether legislation confers a statutory license on members of the public to enter the casino premises - whether, if plaintiff is invalidly excluded by casino operator, the second defendant as lessee could nevertheless lawfully refuse access to him as an invitee of the casino operator - whether contractual entitlement to natural justice - HELD - s 77 of the Casino Control Act 1992 does not provide a statutory codification for the rights of entry of the general public to the casino - any right by a member of the public to enter the casino is pursuant to an implied common law license - first defendant is not obliged in the exercise of its common law proprietary rights to afford natural justice when withdrawing a patron's license to enter the casino or refusing to grant a license to enter the casino - no contractual entitlement to enter or to be afforded natural justice - REAL PROPERTY - degree of possession required to maintain an action in trespass - whether implied easement granted by second defendant in favour of first defendant and its invitees in order to permit them to traverse the non-casino premises - HELD - both defendants had sufficient degree of possession or rights to possession to maintain action in trespass - doctrine of non-derogation from grant applies only to grant of proprietary interests

[4]

Aldridge v Wright [1929] 2 KB 117 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 Baker v The Queen [1975] 1 AC 774 BBB Constructions Pty Limited v Burn [2008] NSWSC 1356 Bocardo SA v Star Energy UK Onshore Ltd [2009] EWCA Civ 579; [2009] 3 WLR 1010; [2010] Ch 100 Brunner v Greenslade [1971] Ch 993 Bundagen Co-Operative v Battle [2010] NSWSC 160 Chief Executive Officer of Customs v Tony Longo Pty Limited (2001) 52 NSWLR 458 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605 Craftsman Homes Australia Pty Limited & 3 Ors v TCN Channel Nine Pty Limited & 2 Ors [2006] NSWSC 519 Crowe v Mercy Health and Aged Care Central Queensland Ltd [2001] QSC 384 CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1 Eleftheriou v Water Board [1991] NSWCA 91 Evans & Anor v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576 FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; (1979) 25 ALR 1; (1979) 53 ALJR 536 Foroughi v Star City Pty Limited [2007] FCA 1503 Georgeski v Owners Corporation SP49833 (2005) 62 NSWLR 534 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 133 CLR 487 Jones v Swansea City Council [1989] 3 All ER 162 CASES CITED : Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 M61/2010E (and M69/2010) v Commonwealth of Australia [2010] HCA 41 Manchester Airport plc v Dutton [2000] 1 QB 133 Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759 McGrath & Anor v Campbell & Anor [2006] NSWCA 180; 68 NSWLR 229 Newington v Windeyer (1985) 3 NSWLR 555; (1985) 58 LGRA 289; [1986] ANZ ConvR 436 Peter Harrison v Sophie Carswell [1976] 2 S.C.R. 200; [1976] 2 RCS 200 Peters v The Queen (1971) 17 D.L.R. (3d) 128 Pwllbach Colliery Co v Woodman [1915] AC 634 R v Warner (1661) 1 Keb 66 R v Wear Valley District Council [1985] 2 All ER 699 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Rose v Boxing NSW Inc (2007) NSWSC 20 South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 Star Energy Weald Basin Limited and Anor v Bocardo SA [2010] UKSC 35 Studman v DPP (Cth) [2007] NSWCA 285 Traderight Pty Limited v Bank of Queensland; Bank of Queensland v Traderight Pty Limited; Jude Financial Services Pty Limited v Bank of Queensland; Rossmick No 1 Pty Limited v Bank of Queensland; Bank of Queensland v SME Business Assist Pty Limited; Geraghty & Palmer Pty Limited v Bank of Queensland [2010] NSWSC 139; (2010) 266 ALR 503; (2010) 238 FLR 358 Tryam Pty Ltd and Anor v Grainco Australia Ltd and Ors [2003] NSWSC 812 Wheeldon v Burrows (1879) 12 Ch D 31 Wilcox v Richardson (1997) 43 NSWLR 4 Wuta-Ofei v Danquah [1961] 1 W.L.R. 1238; [1961] 3 All E.R. 596; (1961) 105 S.J. 806 Ying v Song [2009] NSWSC 1344

[11]

4 The casino itself is located within the boundary of the overall casino complex and is accessible only via 'non-casino' land. This means that, to enter the casino, a patron must first pass through some part of land that is leased to Casino Properties (and licensed to Star City) but is not the subject of the casino premises themselves and therefore not an area governed by the provisions of the Act. 5 It is common ground, and the hearing of the application proceeded on this basis, that Star City is in actual possession of the casino premises (though the nature of its occupation of the non-casino premises was less clear), in the sense of Star City having not merely physical occupation but actual control or dominion over the area in question. As far as the non-casino premises are concerned, the defendants conceded, through their Senior Counsel (Mr McHugh SC) at T 5.42/T 6.7, that the occupier of the non-casino premises (over which it is necessary to traverse in order to have access to the casino premises) is Star City, though Mr McHugh noted that Casino Properties, as the lessee of the non-casino premises, was able to (and it is said from time to time did) to license persons to enter the non-casino premises for various purposes. Although the example postulated of the circumstances in which that might occur was "to run a restaurant or another business of that kind" (T 6.4), the evidence given by Mr Graeme Stevens (the Regulatory Affairs Manager for Star City), in paragraph 13 of his affidavit of 18 October 2010, as to the nature of the areas over which a casino patron must cross in order to have access to the casino did not include a restaurant as such. On Mr Stevens' evidence, I would conclude that even if parts of the non-casino premises are operated as a restaurant (access by third party operators to which is permitted by Casino Properties, given its residual rights as lessor having given only a non-exclusive licence), there is no direct access through those areas to the casino. The only access points to the casino premises are the 17 entrances marked on the plans tendered in evidence before me. 6 Mr McHugh, in supplementary submissions on 26 November 2010, emphasised that there was no evidence (and that no concession had been made by the defendants) that any person other than Casino Properties had actual possession of any such non-casino area (ie any non-casino area through which access could be gained to the casino). 7 Senior Counsel for Mr Hinkley (Mr Ashhurst SC) nevertheless contends that the casino premises cannot be seen as an 'island', on the basis of what he says is an implied easement taken to be granted by Casino Properties to the patrons or invitees of Star City to have access to the casino through the non-casino premises. As I understand it, Mr Ashhurst contends that it is Star City that has power lawfully to exclude patrons from the non-casino premises (and hence the fact that Casino Properties has purported to do so cannot avail the defendants in any way). For the defendants it is said that the universe of rights to exclude Mr Hinkley rests collectively in them and that, wherever the power lies, Mr Hinkley has been effectively excluded from both the casino and non-casino premises. 8 Before turning to the terms of the Notice itself, I should add that although, for convenience, I refer to the letter of 10 September 2010 as "the Notice", I do not by that appellation suggest that it has any more formal status than that appearing on its face, namely as a letter notifying Mr Hinkley of the withdrawal of any licence Mr Hinkley might have to enter or to remain upon the premises to which it relates (and informing him of various matters in relation to the withdrawal of the licence). Mr McHugh described the Notice, in effect, as notification that Mr Hinkley was not welcome on the premises (in other words, as an intimation in advance of the intention of the defendants, when next Mr Hinkley might choose to visit the premises, not to grant Mr Hinkley a licence to enter the premises and to treat him as a trespasser if he were then to enter the premises without permission). Mr McHugh, therefore, says that questions of the validity of the Notice having regard to notions of procedural justice (or of the severance or construction of the Notice), turning on its issue jointly by Star City and Casino Properties in relation to the respective casino/non-casino parts of the premises (over which they have different entitlements), do not arise. In that regard, as I understand it, the defendants maintain that the Notice operates as notification by each of them as to the respective parts of the premises over which each has a common law proprietary right to grant (or revoke) licences and each could stand independently of the other (so that if one does not have force for any reason that does not preclude the other from operating in accordance with its terms. ) 9 The Notice, having regard to the definitions adopted in the first paragraph, was given by each of the defendants. In its terms, it appears to cover the whole of the casino complex, referring to the withdrawal of a licence to enter "any part of the Star City premises, located at 80 Pyrmont Street, Pyrmont" and the defendants contend it so operates (T16.7). There was a suggestion, during the course of argument by Mr Ashhurst that the notice covered only the casino premises - T 15.31; but that if it had a wider operation then the casino premises should include an implied easement over the non-casino premises - T 12.33. (In passing I note that there may also have been an issue as to how the Notice might apply to any areas of the non-casino premises licensed to third parties if entrance to the casino could be obtained directly through those areas but, as noted above, there was no evidence that led me to conclude that there were any such areas, particularly having regard to Mr Stevens' affidavit, and the issue was not argued before me.) 10 The Notice must, I think, be read as being a notice by the respective defendants in respect of any area over which each individually has authority to permit (or refuse) access. 11 Mr Hinkley contends that the Notice (and similarly the decision to issue the Notice) is invalid, ultra vires and of no effect on the ground that he was denied natural justice in relation to the making by one or both of the defendants of the decision to withdraw any licence he had to enter the premises and the issue of the Notice. 12 In paragraph 20 of Mr Hinkley's affidavit sworn 8 October 2010, Mr Hinkley asserts that if he is prevented from attending the casino (and in particular, the Sovereign Room at the casino - a room above the main gaming floor to which access is available only upon application and which is described as a room "allocated to patrons participating in high limit gambling") he will be prevented from deriving "part" of his income from gambling and the benefits that he has enjoyed over the past 6 years (though he produced no tax returns and only made that assertion in very general terms). (I have read that part of Mr Hinkley's affidavit simply as a submission or assertion by Mr Hinkley and I accept the force of Mr McHugh's submission that this effectively goes no further than to say that from time to time Mr Hinkley won money from gambling at the casino.) 13 The principal basis on which it was initially contended for Mr Hinkley that the defendants had an obligation to afford him procedural fairness relied on what was said respectively by Gibbs J and by Murphy J in Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; (1979) 25 ALR 1; (1979) 53 ALJR 536). It was contended that, by reason of the public nature of the entertainment facility operated by the defendants or on premises owned or occupied by them (as the case may be) and (though this factor could only strictly apply in the case of Star City) can exercise a statutory right of exclusion under section 79 of the Act, the defendants must exercise their proprietary rights (whether as licensee or lessee of the premises) to exclude individuals from those premises in a manner which is consistent with the exercise of the statutory right of exclusion in s 79 (Forbes, at 269, per Gibbs J, as his Honour then was) and/or that the defendants' statutory and proprietary rights of exclusion affect members of the public to such a degree that the right to exclude is a public right, and the exercise of that right is a public power, which requires that natural justice be observed (Forbes, at 274-75 per Murphy J; Jones v Swansea City Council [1989] 3 All ER 162, at 175). It was further submitted that, Star City having already purported to exercise a statutory right under section 79 of the Act to exclude Mr Hinkley from the casino premises, the defendants could not then seek to circumvent their obligations to provide procedural fairness by giving that act another name. 14 Relevantly, the initial submissions for Mr Hinkley were predicated on the existence of a common law right (to grant or withdraw a licence to enter the casino) that the defendants were said (for various reasons) to be obliged to exercise in accordance with the rules of natural justice. 15 The alternative basis for the contention that the defendants were bound to observe the rules of natural justice (as initially put) was that of a legitimate expectation said to arise from Mr Hinkley's status as a so-called "member" of the Sovereign Room (relying upon what was said in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 133 CLR 487, at 507-511). While said not to be the principal basis for the claimed entitlement to natural justice (that principal basis being said to arise from "the legitimate expectation that any member of the public would have to enter such entertainment areas such as casinos and [Star City's] statutory entitlement to terminate that right"), it was submitted for Mr Hinkley that the decision to issue the Notice was not merely the exercise of a private proprietary right; it was the exercise of a power to prevent a "member" of the Sovereign Room attending that Room. (As I understand it, Mr Hinkley further contends that the arrangements pursuant to which he applied for access to the Sovereign Room and was issued a Sovereign Room card have contractual force.) Again, that submission assumed the existence of a common law right to exclude 'members' (or to refuse them permission to enter the casino). 16 When the matter came back before me on 26 November 2010 (on my instigation, in the circumstances I relate later in these reasons) for further submissions, Mr Hinkley's principal claim to an entitlement to natural justice seemed to be put on a different basis, namely that Star City has no common law right to grant a licence to enter the casino (and thus no common law right to exclude patrons from the casino). Hence, it was put not as a question whether it had an obligation to exercise such a right in a particular manner - rather, it was said that that common law right had been abrogated. 17 Mr Ashhurst submits that s 77 of the Act operates to codify the right of Star City as the casino operator to regulate entry into the casino. (In fairness, on my review of the transcript, he had previously submitted that there was a "statutory code which now describes the entitlement of a member of the public to enter the casino" T 9.1) but had disavowed the proposition that the licence Mr Hinkley had to enter the casino was a statutory licence (T 18.11). As I understand it, the distinction between the position adopted initially and that when the matter was before me most recently, is that whereas it was initially said that the statutory 'code' made the cancellation of the licence in effect the carrying out of a public right, (thus focussing on the public nature of the power to terminate the licence), what is now put is that the effect of s 77 is that the only entitlement to enter onto the casino premises is a statutory entitlement. Hence it is said that the only right to enter is pursuant to a statutory licence (albeit, it would seem, one that the statute recognises is or is to be granted by the casino operator). Therefore, it is said that whatever the steps that have been taken to terminate a common law licence is irrelevant (since entry to the casino could not be dependent on such an entitlement).

[12]

18 It is not disputed that Casino Properties (which is the lessee of, and has licensed to Star City, both the casino and non-casino premises) has no statutory powers in relation to the operation of the casino. Thus, in issuing the Notice, Casino Properties could only have been exercising a private proprietary right. 19 Although, as noted above, Mr Hinkley has asserted that part of his income was derived from gambling at the casino, I was informed by Mr Ashhurst during the hearing of the application on 21 October 2010 (at T 29.22) that Mr Hinkley did not press a claim to procedural fairness on the basis that his livelihood depended upon the express or implied licence to enter or remain upon the Casino Premises and to derive an income therefrom (an argument that had been foreshadowed in submissions relying upon R v Wear Valley District Council [1985] 2 All ER 699 and Forbes, at 264 and [274]). (That said, Mr Ashhurst nevertheless pointed to what was said in Wear Valley (at 702(e)-(j), 703(h)-(j) and 704(e)) for the proposition that if there is a "public law element" (there, in the decision whether to permit the person to trade) then procedural fairness must be applied. It is said that the Exclusion Order, followed by the issuance of the Notice clearly had the necessary "public law element". On this point, Mr McHugh noted that in Wear Valley the relevant decision was one of a statutory authority, thus permitting it to be distinguished from the present case.) 20 Mr Hinkley seeks declaratory and other relief, including orders that the decision to issue the Notice, and the Notice itself, be set aside. He does not seek any damages for breach of a contractual obligation to permit him entry to the Sovereign Room or the casino generally. 21 While it is not conceded by the defendants that, if (which they deny) there were an obligation on their part to afford Mr Hinkley procedural fairness in relation to the issue of the Notice, they had failed to do so, the case was conducted before me broadly on the basis of the defendants' denial that any such obligation had arisen in relation to the decisions made by each of them to withdraw any licence Mr Hinkley may have or have had or in relation to the issue of the Notice itself. (It was not suggested, for example, that Mr Hinkley had been given an opportunity to be heard by Star City in relation to the grounds for withdrawal of any licence to enter the premises nor that he had been informed as to what those grounds were.) 22 It is said that each of the defendants, when issuing the Notice, was exercising a common law proprietary right not susceptible to judicial review (and that Mr Hinkley had no contractual entitlement to access to the Sovereign Room or to natural justice in relation to a decision to exclude him from the casino or the Sovereign Room itself). 23 The defendants further submit that even if Mr Hinkley could establish a juridical basis for the court's intervention in this case (which the defendants say he cannot), there is no utility in the relief sought on the basis that, in the absence of a free-standing implied licence (or, I might add, a statutory licence of the kind now claimed) to enter and remain on the premises, Star City has the right to refuse Mr Hinkley entry to the casino every time he approaches an entrance to the casino. During the course of argument I also canvassed whether the relief sought would be futile if (irrespective of the position of Star City) it was open to Casino Properties to deny access to the non-casino premises and hence effectively frustrate Mr Hinkley's ability to reach the point at which he might physically be able to gain access to the casino. This gave rise to debate as to the significance of the notice being a joint notice (Mr Ashurst submitting in effect that if any part of the Notice was invalid for failing to observe natural justice, then the Notice would fail as a whole) and as to the ability of Casino Properties to exclude an invitee of Star City, which I address in due course in these reasons. 24 In summary, Mr Ashhurst's response to the question of what flows from the joint issuance of the Notice is multi-faceted (see T 5.33-6.34; 26/11/2010). As I understand it, Mr Ashhurst contends that if Star City was obliged to afford, and had denied, Mr Hinkley natural justice, then the Notice must fail as against Star City and that, viz a viz, Casino Properties there is no basis for it to exclude Mr Hinkley - first, because there was an implied easement granted to permit invitees of Star City to enter the non-casino premises and Casino Properties could not derogate from that grant; secondly, on the basis that Casino Properties itself has no common law right to exclude patrons from access (actual possession having been conceded to lie in Star City, at the least by the implied grant of an easement over its land in favour of the casino premises and therefore Casino Properties does not have actual exclusive control of any part of the premises); and, thirdly, issue was taken with the fact that the Notice was not limited to the non-casino areas (and hence if the Notice in relation to the casino premises failed, the whole Notice would fail), though little if any weight was put on this last issue. 25 The matter came before me on an ex parte basis in the duty judge list on 12 October 2010, on which occasion I gave leave for short service of the summons. The summons was made returnable before me on 14 October 2010 on Mr Hinkley's application for interlocutory relief. On that occasion, rather than proceeding to hear the interlocutory application, the parties agreed to proceed by way of an early final hearing of the substantive application and directions were made accordingly. I heard the matter on 21 October 2010 (unfortunately with some interruption to accommodate urgent matters in the duty list) and reserved my judgment. 26 I subsequently invited further submissions from the parties on an issue which had not been the subject of particular focus, at least by me, during the debate before me but that I considered could be said to be raised by some of the authorities on which reliance had been placed on other issues in the proceedings - that being a question as to whether, if Star City, as a licensee, had no standing at common law to eject persons from the casino, any notice purporting to have that effect would necessarily need to be predicated on a power under s 79 of the Act. (I saw this as an issue potentially going to the construction to be placed on the Notice.) 27 As I understood the way in which the issues had then been framed in these proceedings, the parties had assumed that Star City did have a common law proprietary right to exclude (or perhaps more precisely, not to admit) persons from (or to) the casino and thus the issue was as to whether, in issuing the Notice, Star City was exercising a statutory power of exclusion or right of a public nature, on the one hand, or was exercising a common law proprietary right on the other hand (and, if the latter, whether such right was one which must be exercised in accordance with its statutory powers of exclusion or is otherwise a public power such that the obligation to afford procedural fairness would arise). In that context, a distinction was, as I understood it, being drawn between a statutory power of exclusion and a common law proprietary right to exclude patrons or to revoke any implied licence pursuant to which patrons had access to the casino. To the extent that reference had been made in a general context to Star City's "occupation" of the premises, it seemed to me that the extent of Star City's power as licensee to exclude patrons from the casino might have a bearing on the construction of the Notice that it had in fact issued. Hence, as a matter of procedural fairness I considered that the parties should be given the opportunity to address the matter directly. 28 Further written submissions were served by the parties and addressed orally in court on 26 November 2010. On that occasion both parties confirmed that it was common ground that Star City had actual possession of the casino premises (T 4.12-.18) in the sense of exercising control or dominion over those premises (and hence would, subject to the statutory licence argument now raised, have had the right at common law to revoke any licence Mr Hinkley had in respect of, and to exclude Mr Hinkley from, the casino premises - T 4.27), though the position in relation to the non-casino premises was not so much a matter of common ground. 29 However, the complexion of the case changed somewhat at that point as it was only then that Mr Hinkley's (now principal) contention as to the codifying effect of the relevant statutory provision was clearly articulated with focus on the alleged statutory codification of a right to enter the casino. Submissions on that point were then made. Mr Ashhurst accepted, nevertheless, that if the common law right (to grant and/or revoke a licence to enter the casino premises) had not been abrogated by statute, then the answer to the question I had posed as to the construction of the Notice would not arise (T 4.33-.43).

[13]

Issues 30 The first (or anterior as it was so-called) question ultimately posed for determination is whether Star City has a separate independent common law right to grant and/or refuse access to the casino (or, in other words, whether Mr Hinkley, when entering onto the casino premises, does so pursuant to a common law licence or a statutory licence). 31 Once that issue is determined, the central question is then whether one or both of the defendants owed an obligation (whether arising from the nature of the power being exercised when the Notice was issued or as a matter of contract) to afford Mr Hinkley procedural fairness when withdrawing the licence (be that a statutory licence or an implied common law licence) that he had as a member of the public (and/or any statutory or express or implied common law licence that he had as a 'member' of the Sovereign Room) to enter the Star City premises (both casino and non-casino land) (or notifying of any intention not to grant any future such licence), which has had the practical effect of excluding him from access to the casino. 32 The defendants approached that question by asking whether Mr Hinkley is entitled to invoke the court's powers of judicial review in relation to the decisions made by one or both of the defendants. Mr McHugh thus pointed at the outset to the need for Mr Hinkley to identify the juridical basis for any such review - such a basis being only, it is said, where there is an exercise of statutory or prerogative power or where there is the exercise of a contractual right which imports such a duty (though, in the latter case, any failure to afford natural justice would give no right of judicial review as such, but would simply provide a basis on which a claim for breach of contract might lie). Mr Ashhurst's position on that point, as I understand it, is that a juridical basis for judicial review also arises where the power being exercised is a 'public' power but in any event he now primarily rests the application for judicial review on the power in question being a power to revoke or terminate a statutory licence. 33 After pointing to the statement by Mason J (as his Honour then was) in Kioa v West (1985) 159 CLR 550, at 584, and his Honour's comments in South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, at 386 to the effect that the obligation to accord natural justice or procedural fairness stems from the common law and is not something which is in the gift of statute law (and referring to his Honour's extra-curial comments to that effect in 'The Importance of Judicial Review of Administrative Actions as a Safeguard of Individual Rights' (1994) 1 Aust J of Human Rights 3, at 4), Mr Ashhurst, submitted that Mr McHugh's formulation of the issues for determination in the above manner obscured the following critical sub-issues:

[25]

(iv) had Star City been obliged to afford Mr Hinkley procedural fairness before issuing the Notice (and not done so), such that Mr Hinkley remains entitled to enter the casino premises under any statutory or free-standing common law licence that on this hypothesis it is assumed he had, then I think it is unlikely that Casino Properties (as lessee, and licensor to Star City of both the casino and non-casino premises) could effectively have excluded Mr Hinkley (as an invitee of its licensee) from the non-casino premises (and thus effectively have prevented Mr Hinkley having access to the casino premises) unless the particular use by Mr Hinkley of that licence from Star City was inconsistent with the reasonable and incidental use of the property permitted under Star City's licence (say, if access was sought for an illegal purpose or to harass the casino operator or staff). While I think that Casino Properties retains standing to sue in trespass (and while I am not convinced that the doctrine of non-derogation from grant applies where the grant is of a contractual right and not a proprietary interest), I think that an invitee of Star City would (absent any provision in the licence agreement between Star City and Casino Properties permitting exclusion of such persons) be able to set up his or her entitlement to enter under a licence from Star City to defend a claim in trespass by Casino Properties. 39 While I acknowledge the dicta of Murphy J to the contrary in Forbes, I think the weight of dicta in the High Court is against the proposition that there is an obligation on a party in the position of Star City to afford natural justice in relation to the exercise of its common law proprietary rights. I find that there is no basis for judicial review of the decision by Star City and Casino Properties to issue the Notice and no contractual or other obligation on either of the defendants to afford Mr Hinkley procedural fairness. The Summons should therefore be dismissed with costs. Background Casino/Sovereign Room location 40 I have referred above to the physical location of the casino within the Star City casino complex and to the fact that it is accessible only through the non-casino premises. Mr Stevens deposed that there are 17 entrances to the casino, each of which is located on non-casino land and at each of which there is a notice setting out the terms of entry to the casino (the "Terms of Entry notice"). Mr Stevens further deposed that at each of these entrances (including the only three from which access to the Sovereign Room can be gained) there is at least one Star City employee in attendance at all times when the entrance is open. The Terms of Entry notice includes the following statements, which draw the patron's attention to the discretionary (and revocable) nature of the right to enter and remain on the casino premises:

[35]

58 The defendants contend that the Diamond Sovereign Room card issued to Mr Hinkley did not confer any right (contractual or otherwise) to enter the casino or the Sovereign Room and did not give rise to any expectation of access thereto. Status of entry to the casino 59 Leaving aside for the moment the question whether Mr Hinkley's completion of the application for access to the Sovereign Room (and Star City's apparent acceptance or approval of that application by the issue of a Sovereign Room card) gave rise to any contractual right of access to the Sovereign Room or to the casino in general, it was not initially disputed that entrance by a member of the public to the casino premises involved the exercise of an implied common law licence to enter onto the non-casino premises (that implied licence arising from the fact that this area is open to the public) (though with the proviso noted by Mr McHugh that the entry not be made in order to commit a criminal offence or tort against the occupier). As I understand the analysis now put forward for Mr Hinkley, it is that, at the point of entry to the non-casino premises, what the patron is exercising is a right under an implied easement taken to have been granted by Casino Properties to cross the non-casino premises in order to exercise his or her statutory entitlement to enter the casino. 60 What is then disputed is the characterisation of what next happens when a person enters the casino. The defendants contend that when a patron traverses the non-casino premises and (if access is not refused by the Star City staff in attendance at the particular casino entrance) enters the casino premises, then there is the grant of a revocable common law licence to enter and remain in the casino for the duration of the particular visit (and that the same legal analysis applies when a patron is permitted access to the Sovereign Room at the casino). On Mr Ashhurst's analysis, however, at the point of entry to the casino premises a member of the public is exercising a statutory licence to enter the casino. (Logically, it would seem on Mr Hinkley's case that at this point any decision to exclude or not to permit access to a member of the public is one to which the obligations of natural justice apply, since the patron already has a statutory licence to enter thus it would apply to any on the spot decision.)

[41]

78 (2) A police officer may, on being authorised by the Authority or an inspector to do so, enter any part of a casino to which the public does not have access and may remain there for the purpose of discharging his or her duty as a police officer. 65 Section 79 of the Act then deals with the right of Star City, as casino operator, to prohibit a person from entering or remaining in the casino by the giving of an order referred to in s 80 as an "exclusion order". (There is no similar right on the part of Casino Properties as lessee.) 66 As Mr McHugh points out, there are a number of serious consequences which flow from the issue of such an order. Section 84 of the Act makes it a criminal offence for a person the subject of a non-voluntary exclusion order to enter or remain in the casino. It is also a criminal offence for the person for the time being in charge of the casino, an agent of the casino operator or a casino employee to fail to remove a person the subject of an exclusion order including a voluntary exclusion order as soon as practicable after that excluded person's presence becomes known to the said casino person (s 85(2) of the Act). There are statutory obligations on the casino operator in relation to matters such as notification to the Authority of those persons the subject of the exclusion order (s 83). The Authority has the power to review the making of an order (unless it was given by the Authority or at the direction of the Commissioner of Police) (s 80). In the exercise of such a power the Authority is not required to observe the rules of natural justice (s 141(4)). 67 In terms of the broad consequences of an exclusion order, Mr McHugh also points to the fact that the issue of an exclusion order under s 79 of the Act in New South Wales may have ramifications in relation to the right of an excluded person to enter a casino in another state in Australia (referring by way of example to ss 78AA and 78AB of the Casino Control Act 1991 (Vic)) and that s 85 of the Act operates to provide some statutory immunity in relation to the removal (in good faith) from the casino of persons the subject of an exclusion order. Steps to exclude Mr Hinkley and/or withdraw his licence to enter and remain upon the casino 68 I turn then to the steps that were taken in the present case first to exclude Mr Hinkley from the casino and then to withdraw any (common law) licence he has or had to enter and remain on the casino premises. 69 On 23 April 2010, Star City issued an Exclusion Order in relation to Mr Hinkley pursuant to s 79 of the Act. The notice was served on Mr Hinkley under cover of a letter dated 27 April 2010. 70 The Exclusion Order was couched as a formal document, headed as such and identified on its face as being issued pursuant to s 79 of the Act, including the allocation of a specified Exclusion Number (7215). In its terms it prohibited Mr Hinkley from "entering or remaining on the premises of Star City (The Casino)" while the Order remained in force. It was signed by someone designated as an authorised person under a specific licence number and witnessed by another person with a specific licence number. It specified not only the date but time of issue. (I was taken through the provisions requiring official notification and record keeping in relation to the making of such orders.) The letter, under cover of which the Order was served, was signed by the Security Manager of the Star City Security Department (some 4 days after the making of the Order, though the delay in this regard was not explained). 71 No reasons were provided for the issue of the Exclusion Order in respect of Mr Hinkley, other than the statement made in the covering letter that it was issued "in respect to your conduct relating to illegal and undesirable activity on the 23rd April January 2010 [sic]". There is no suggestion that Mr Hinkley was given an opportunity to be heard in relation to its issue. 72 The Exclusion Order drew Mr Hinkley's attention to his right under s 80 of the Act to apply in writing for a review of the Order and noted the potential criminal consequences of non-compliance with the Order (conviction of a criminal offence with a maximum penalty under s 84 of the Act of $5,500 or prison for 12 months or both). 73 By letter dated 18 May 2010 from Mr Hinkley's solicitors, a review by the Authority of the decision to issue the Exclusion Order was requested. The attention of the Authority was drawn to the fact that the conduct and allegations referred to in the Exclusion Order had not been brought to Mr Hinkley's attention and it was asserted that the casino had not followed due process and had not observed the rules of natural justice. 74 As noted above, there is an express exclusion of any obligation to afford natural justice on the part of the Authority when exercising its functions under the Act, which would include reviewing the issue of an exclusion order (s 141(4)). The statute makes no such provision in relation to the casino operator. It was not conceded by the defendants that there would have been any obligation on Star City to afford natural justice when exercising its powers under s 79 but that point was not argued. (In that regard I note, however, that Mr Ashhurst submitted that, although Rose v Boxing NSW Inc (2007) NSWSC 20 was authority for the proposition that if there was a right of review then there would not be an obligation to provide procedural fairness, this was only the case if the reviewing authority had such an obligation and that in the instant case the reviewing authority did not.) 75 In the course of its review of the decision to issue the Exclusion Order, the Authority sought Mr Hinkley's response to various questions relating to conduct involving the 'cashing' of a named casino cocktail waitress' tips in the form of casino gaming chips. Mr Hinkley's response, via his lawyers, among other things admitted that he had cashed chips for the named cocktail waitress on three or four occasions. (Whether or not one could infer from this that the reason for Star City's decision to exclude Mr Hinkley related at least in part to alleged conduct of that kind is moot since the defendants, though they did not concede the point, did not contend before me that, if natural justice was required to be observed, they had afforded it.) 76 By letter dated 29 July 2010, the Director, Casino and Authority Operations advised that the Authority had given careful consideration to the submissions made for Mr Hinkley and that the Authority had decided to let the Exclusion Order stand (though noting that it remained open to the casino operator to review the order). 77 Mr Hinkley then requested that Star City revoke the Exclusion Order. By letter of 23 September 2010, Star City in fact did so (noting that the exercise of the statutory power of revocation was independent of any exercise by the defendants of their proprietary right to withdraw any licence that Mr Hinkley might have to enter or remain upon the Star City premises and that this letter was not an invitation for Mr Hinkley to enter the premises). 78 By then, however, Star City and Casino Properties had jointly given the Notice the subject of these proceedings. 79 The Notice, issued on 10 September 2010, was expressed in its terms to be an "exercise of the proprietary rights" of the two issuing entities and very clearly disavowed the exercise of the statutory power of Star City. It was very different in form and content from the Exclusion Order. 80 The Notice was in the form of a letter (served under cover of a letter from the defendants' lawyers, presumably because Mr Hinkley was by then represented by lawyers who had contested the validity of the Exclusion Order). It ascribed no Exclusion Number as such and was not precise as to the time of issue. The signatory was identified by name and position (he being the General Counsel of one or both of the defendants), not by licence number, and there was no witness to his signature. The Notice did not speak in terms of 'Exclusion' or refer to "Excluded Persons" and, significantly, the Notice itself referred to the then subsisting Exclusion Order (and thus seemingly was seen as having a separate, albeit perhaps overlapping, operation). 81 In its terms, the Notice said:

[45]

Issues (a) Does s 77 operate as a statutory codification of the grant of licences? 86 Section 77 of the Act, as set out above, is the critical provision on which Mr Ashhurst relies for the proposition now put that members of the public (including Mr Hinkley) have a statutory licence to enter the casino. Initially, any such suggestion was expressly disavowed (T 18.11) and the argument focussed on the nature of the power to revoke or withdraw what seemed to be acknowledged to be a common law licence (if not, as per the alternative contention, a contractual licence arising out of the Sovereign Room cardholder status). 87 What is, however, now said is that the right of Mr Hinkley to enter onto the casino derives only from s 77 of the Act. It is said that this is a statutory right not a common law right (para 5, Plaintiff's Further Submissions dated 26 November 2010). Mr Ashhurst acknowledges that, in the absence of s 77, Mr Hinkley would have had the common law implied right to enter onto the casino as described in Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, at 6-7 and that Star City would have been at liberty to cancel that implied licence and to eject him (subject only, as I apprehend it, to the argument based on what was said by Murphy J in Forbes or any contractual limitation on that right). However, it is said that the Act has removed that implied licence and that Star City thus cannot revoke an implied common law licence to enter the casino that no longer exists. 88 Mr Ashhurst contends that the intent of the Act is to codify the entry and exclusion of persons from the casino and that this construction is confirmed by s 78, which provides an exception to s 77 for the police, and s79, which dictates who may exclude persons from the casino and by what means. It is said that there is a clear statutory intention exhibited in s 77 to abrogate any common law right that Mr Hinkley or Star City may otherwise have had in respect of the casino premises. 89 Pausing there, as a matter of statutory construction, if s 77(1) had itself conferred a general statutory licence or right of entry in relation to the casino premises, then there would seem to me to have been no need separately to have dealt in s 77(2) with a right of entry for inspectors. They would, on Mr Ashhurst's construction of the section, already have a statutory licence to enter and the only question to deal with would be what separate provision was to apply for the revocation of that licence in their particular case. (I accept that s 78(2) is somewhat different insofar as this, in its terms, authorises entry onto areas of the casino "to which the public does not have access".) Thus, insofar as s 77(2) appears directly to confer on inspectors a statutory licence to inspectors to enter and remain on the casino premises, this seems inconsistent with s 77(1) conferring a general statutory licence. Further, as Mr McHugh points out, the wording of ss 77(2) and 78(2) in which a statutory licence does appear to be granted, is markedly different from that employed in s 77(1). The passive voice in the latter, when contrasted with the active voice in the former two provisions, supports the construction of s 77(1) as not conferring any right of access but simply being a statutory recognition of the basis on which the casino operator may permit access to the casino premises (or, as Mr McHugh submits, being a limitation on the nature of the right of entry that the casino operator may, or may not, choose to grant).

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90 Mr Ashhurst submits that s 77 should be read as providing that a person's right to enter is only pursuant to a statutory licence granted by the casino operator. One difficulty with such a construction is that the section does not speak in terms of a licence being granted under the Act nor does it refer to the licence as a statutory licence. There is no express conferral of a 'statutory' licence to members of the public. Had Parliament wished to confer a statutory licence on persons to enter the casino there would have been no need for the interposition of the casino operator as the entity to grant such a licence. The legislation could simply have provided that, unless excluded by the casino operator pursuant to s 79, a person may enter and remain in a casino. 91 This seems to me to be reinforced by the fact that there is no provision in the Act dealing with the manner in which any such licence is to be granted by the casino operator (or the terms on which it might be granted) or as to the discretion, if any, that the casino operator may have in relation to the grant of the statutory licence (as opposed to its revocation). 92 Mr McHugh submits that if, as Mr Hinkley now contends, s 77 is a codification of Star City's right to allow persons to enter or remain upon the casino premises, then it does so in a section (s 77) (wholly independent of the power to issue exclusion orders (in s 79)) which permits the refusal to grant the (on this hypothesis) statutory licence in the first place and to do so without any machinery provisions (such as in relation to applications for such a licence, the factors to be taken into account and the persons authorised to exercise a power to grant such an application). 93 In this regard, it is noted that s 79 does not, in its terms refer to the rescission of a licence or statutory licence granted under s 77, as Mr McHugh submits might have been expected had s 77 effected the grant of a statutory licence in the first place. 94 Mr McHugh further submits that if s 77 was intended to confer a statutory permission for entry to the casino, then the section could have been more simply framed by reference to "use" of the premises without reference to a licence as such. He notes that the concept of a 'licence' is well known and commonly understood in the context of common law property rights and that it cannot be assumed that the legislature, when using that term, meant a 'statutory' licence as opposed to a common law licence. It is submitted by Mr McHugh that there is nothing in the legislation to suggest that the reference, in s 77, to the right of entry only being by way of licence granted by the casino operator was intended to be a reference to anything other than the common law licence which the owner or occupier of land is in a position to grant. 95 Mr McHugh submits, and I agree, that the wording of s 77 simply assumes the existence of a common law licence and evidences no intent to codify or exclude common law rights in relation to the grant of licences to enter the casino. I read s 77 as being no more than a statutory recognition that the only basis on which a person may enter and remain in the casino is pursuant to a licence granted by the casino operator (and an implied limitation on a casino operator's right to grant anything other than a licence to persons for entry into the casino) but without itself conferring any licence and without imposing any obligation on the casino operator to grant such a licence in any particular case to a particular person (which would be the effect of reading this section as the source or grant of a statutory licence). 96 If Mr Ashhurst is correct, then it must follow that Star City has no power to refuse entry even on a one-off basis (say, for drunkenness or inappropriate attire) other than by invoking the exclusion mechanism in s 79. Such a result surely could not have been intended (and would appear to be inconsistent with the objective of the legislation being to control the potential of a casino to cause harm to the public interest). In that regard, I note that, in reviewing the operation of the part of the Act dealing with Exclusion Orders, Jacobson J in Foroughi v Star City Pty Limited [2007] FCA 1503 (at [70]) recognised that one of the primary objects of the Act is to contain and control the potential of a casino to cause harm to the public interest and to individuals and families (there referring in particular to s 4A(1)(c)) (in the context of a case in which his Honour found there was no breaches of a duty of care nor other statutory duties on the part of Star City by reason of its failure to detect and prohibit the attendance of a person at the casino after the making of a voluntary exclusion order under s 79(3)). An unwieldy process for refusing on-the-spot admission to the casino (rather than leaving this in the casino operator's discretion) seems inconsistent with such an objective.

[49]

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. 99 Mr Ashhurst's response to this was that the presumption (if it still exists) that a statute does not interfere with or intend to abolish common law rights is now regarded as weak and having negligible effect (referring to Harrison v Melham (2008) 72 NSWLR 380; [2008] NSWCA 67; per Spigelman CJ, at 382-383 and Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269, at 284 per McHugh J). In Harrison, however, as Mr McHugh points out, Spigelman CJ acknowledged (at [6] -[7]) that "the principle still operates with force with respect to legislation which abrogates fundamental rights, immunities and freedoms" and the defendants submit that the right to sue in trespass to vindicate rights flowing from actual possession (and the right to permit the use of property or to grant rights in relation to property) is a fundamental common law property right. 100 Reliance was placed on what was said by McClellan CJ at CL (with whom Spigelman CJ and Handley AJA agreed) in Studman v DPP (Cth) [2007] NSWCA 285, at [35] to the effect that provisions of a statute that provides for the confiscation or derogation from property rights must be strictly construed. It is submitted that it would be a surprising result if s 77 were to be construed as having abrogated the right of Star City to bring an action for damages in trespass without having expressly so provided and that there is nothing that could give rise to a necessary implication to that effect. It seems to me that this is correct. 101 Mr Ashhurst submits that the vesting of statutory power solely in Star City (and the Authority), to the exclusion of Casino Properties, to regulate the attendance of and to exclude persons from the casino premises is consistent with the objects of the Act set out in s 4A and with the function of the Authority in s 141(2)(c) of the Act (to "keep under constant review all matters connected with casinos and the activities of casino operators, persons associated with casino operators, and persons associated with casino operators who are in a position to exercise direct or indirect control over the casino operators or persons associated with casino operators".) 102 Reliance is placed on the fact that the Act deals with licensing and operation of one casino to be operated by one licence (s 6) and that the only entities with the power to define the boundaries of the premises on which the casino is situated are the Authority and Star City (s 19). It is noted that the premises are defined and specified under the casino licence of which Star City is the sole holder. A qualitative distinction is drawn by Mr Ashhurst (of the kind made by Murphy J in Forbes, at 274) between these premises and those of an ordinary householder or business operator. In those circumstances it is submitted for Mr Hinkley that it cannot be a fundamental right of Star City to be able to exclude persons other than in accordance with the Act. 103 In the Second Reading Speech (Casino Control Bill, Second Reading Speech, Ms Anne Cohen, 5 March 1992), the following was noted in relation to the bill:

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107 Mr Ashhurst submits that the primacy of the Act (and, in particular, the codification of the power to exclude persons from the casino premises for which he contends) is reinforced by the provisions of the licence agreement between the defendants (clause 1.2(b) of which provides that to the extent of any inconsistency or conflict between the terms of the agreement on the one hand and the Act and the Casino Operations Agreement on the other hand the Act and COA (and in the case of inconsistency between those two, the Act) shall prevail). I do not see this clause, however, as any admission that there has been a statutory abrogation of Star City's power to grant and revoke common law licences to enter the casino premises. 108 Mr Ashhurst submitted that s 79 of the Act would not have been necessary had Parliament not intended to limit Star City's power to exclude members of the public from the casino. This, however, seems to me to indicate no more than that the legislature intended to place limits on the way in which an exclusion of the kind having the more serious consequences (and greater reach) provided for under the Act could be effected. Mr McHugh has pointed to the fact that the power under s 79 carries consequences far wider than the confines of the casino itself (and wider than the withdrawal of the common law implied licence) and surely cannot have been intended to operate in the day-to-day situation of exclusion from entry at the casino entrance of would-be patrons on an on-the spot basis (yet that would seem to be the effect of Mr Ashhurst's argument that there is a general statutory licence that can only be withdrawn in accordance with the s 79 procedure or consistently with such procedure). 109 It can perhaps be tested by posing the question whether, if Mr Hinkley were now to disobey the Notice, a prosecution could be brought on the basis that this amounted to a criminal offence (or whether in those circumstances a Star City staff member removing him could rely on the statutory immunity provided for under the Act). This would surely not be the case. 110 (In passing I note that in the further submissions on the further question I had raised, Mr Gunning of Counsel for Mr Hinkley submitted that the relevant issue was not whether Star City would have a right (other than under the statute) to sue in trespass but whether Star City had lawfully excluded Mr Hinkley so as to be able to sue in trespass. It does not therefore seem to be contended for Mr Hinkley that the Act abrogates any right on the part of Star City to sue in trespass.) 111 In essence, the defendants submit (and I accept) that any person entering the casino complex (other than inspectors or police members who have a statutory right of entry) remains there under a common law revocable licence from Casino Properties (as lessee in respect of the non-casino premises) and from Star City (as the licensee and occupier of the casino premises and/or as licensee and occupier of the non-casino premises) (relying upon Heatley, at 506 citing Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605). 112 I do not accept that the statute evinces an intention to codify the circumstances in which members of the public are permitted to enter the casino. In my opinion, on its proper construction s 77 simply provides a statutory recognition that they do so under licence (and not otherwise) from the casino operator. I see no reason to construe this conferring a statutory, as opposed to common law, licence or as having the effect that any licence so granted by the casino operator is a statutory licence.

[56]

Under s. 39 the Commission is given power to order such a person to stay away from a specified racecourse or all racecourses for a specified or an indefinite period and the service of such a notice on him at a racecourse makes it an offence to remain thereon. It is also true to say that any member of the public has a legitimate expectation that upon payment of the appropriate charge he will be admitted to racecourses. They are in a practical sense "open to the public" and indeed by anouncements and advertising their owners invite and seek to encourage the public to attend. This is not an expectation that the Commission will act in some particular way but an expectation by members of the public that they will be able to enjoy the right or liberty granted to them by the owner to go onto the racecourse, i.e. that they will be permitted to enter along with other members of the public in response to the owner's implied invitation. That expectation exists by reason of the nature of the premises and the fact that members of the public are invited to attend and freely admitted on payment of a stated charge. The fact that the owner may eject them even in breach of contract, though no doubt known to some racegoers, does not detract from that expectation, nor does the fact that the owner may refuse to admit any particular person without giving any reason. Section 39 (3) provides as it were an overriding exception or control which sets aside those rights and expectations. If an appropriate order is made it destroys the right of the member of the public presently upon a racecourse to remain there and if it is made at a time when he is not on a particular racecourse then it destroys his expectation of being entitled on payment of the appropriate charge to enter on the next appropriate occasion. If, like the present order, it is expressed in general terms in respect of all racecourses (including dog-racing courses) and for an indefinite period in the future, it puts the addressee at the disadvantage of being deprived of the opportunity available to all other members of the public of going upon such racecourses on payment of the usual charge. It is of course only an opportunity or an expectation and not a legally enforceable right in the sense that the individual member of the public cannot insist upon entering or remaining contrary to the will of the owner, though they may of course be entitled to damages for breach of contract and in that sense have some enforceable right.

[60]

There is no doubt that the owner of a racecourse, whether a club or some other person, may lawfully refuse admission to any person at all, save a member, and that in accordance with the decision in Cowell v. Rosehill Racecourse Co. Ltd (1937) 56 C.L.R. 605 may subsequently effectively rescind or terminate the licence granted and thereupon eject or cause to be ejected such person. In deciding to exclude or to terminate the licence of any such person the owner of the premises is under no obligation to provide reasons or give the person concerned any opportunity to make representations or provide any kind of a hearing. The principles of natural justice do not apply to the exercise of private rights in respect of property . They apply to the exercise of governmental powers and particularly to the exercise of statutory powers, and also to the powers of committees of clubs in respect of members. The fact that this statutory power has been inserted in a section which previously dealt only with matters supplementary to private rights of property, does not appear to me to alter the character of the Commission's power. The committee of a club is given by the statute no more than the same rights which it would otherwise have had at common law, or at most it may be said that those rights have been modified by the requirement of written notice which would not be necessary for the exercise of their common law rights, and that failure to comply with such notice is made a criminal offence, which again it would not be at common law. It is not necessary for present purposes to decide whether the committee, if all that it has now is a statutory power, would be limited to its exercise in accordance with the principles of natural justice, but even if it were not, that would not in my view warrant a like conclusion with respect to the Commission's powers, even so far as they overlap the powers of the Committee. (my emphasis) 121 The defendants rely on Heatley (together with what was said in Cowell) for two broad propositions: first, that the legitimate expectation recognised by Aickin J was one which subsisted as against all the world "save the owner" and, secondly, that an owner exercising a personal proprietary right to exclude an invitee from a public venue such as a racecourse does not have an obligation to observe the rules of natural justice.

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129 It was conceded in that case that, if there were an obligation to observe the requirements of natural justice, the Club had not done so. Relevantly, it was also conceded by the Club, when the matter came before the Court of Appeal (and not disputed before the High Court) that the Club was required to observe the principles of natural justice when exercising the power under rule 28. Mr McHugh places weight on this aspect of the matter, submitting that (as Forbes was a case turning on the characterisation of the notice in question) there was no contest as to whether the exercise of the power under the Rules of Trotting by a body who was also the owner of certain of the premises the subject of the exclusion notice would have imported an obligation to afford natural justice (and that the ratio of the case is therefore very narrow). 130 The question for consideration by the High Court (and the Court of Appeal below it) was whether the notice was an attempted (and, if so, admittedly invalid) exercise of the power conferred by rule 28. The Club had sought to construe the notice as one relating only to the courses it owned and thus as being solely an exercise of its private proprietary rights as owner of the two named courses. 131 I accept that, having regard to the earlier concession made in that case, the question (which, in effect though not exactly, is the question here) whether there was an obligation to afford procedural fairness in relation to the issue of a notice in the exercise of private proprietary rights by an owner (here, an occupier) who separately had powers of the kind conferred under rule 28 was a question that did not strictly fall for determination by the High Court (or Court of Appeal) in Forbes. 132 The significance of the concession on which the case proceeded lies in the precedential status of the observations made by their Honours, after having determined the question of characterisation of the warning off notice. Mr McHugh submits that those observations (and, in particular, the observations of Gibbs and Murphy JJ on which reliance is placed for Mr Hinkley's principal contentions in this case) are obiter. 133 I had cause to consider an issue of this kind in Traderight Pty Limited v Bank of Queensland; Bank of Queensland v Traderight Pty Limited; Jude Financial Services Pty Limited v Bank of Queensland; Rossmick No 1 Pty Limited v Bank of Queensland; Bank of Queensland v SME Business Assist Pty Limited; Geraghty & Palmer Pty Limited v Bank of Queensland [2010] NSWSC 139; (2010) 266 ALR 503; (2010) 238 FLR 358. There, I concluded (on the basis of the authorities to which I had made reference) that, as a matter of precedent, a trial judge of this Court was not bound by a decision of a superior appellate court (there, the Court of Appeal) in respect of a principle which had been conceded or assumed, without that principle having been addressed by Counsel or within the judgment, even if that principle formed a necessary part of the decision. I remain of that view. 134 In particular, I note that in Baker v The Queen [1975] 1 AC 774, (cited with apparent approval in CSR Limited v Eddy (2005) 226 CLR 1, at 11) Lord Diplock, delivering the judgment of the majority of the Privy Council, had said (at 785):

[65]

… It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions ( Moragne v States Marine Lines Inc (1970) 398 US 375 at 403 per Harlan J (for the Court); Planned Parenthood of Southeastern Pennsylvania v Casey (Governor of Pennsylvania) (1992) 505 US 833 at 854 per O'Connor, Kennedy and Souter JJ (for the Court)). But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument ( Baker v The Queen [1975] AC 774 at 787-789 per Lords Diplock, Simon of Glaisdale and Cross of Chelsea and Sir Thaddeus McCarthy … (my emphasis) 136 (Reference should also be made in this context to what was said by Heydon JA (as his Honour then was) in Chief Executive Officer of Customs v Tony Longo Pty Limited (2001) 52 NSWLR 458, at 474; by Campbell JA, with whom Handley AJA and Bell J agreed, in Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737, at 748; and by Clarke and Handley JJA in Eleftheriou v Water Board [1991] NSWCA 91 - that "A judicial decision is not binding in respect of questions which are either conceded or not argued". Similarly, in Tryam Pty Limited v Grainco Australia Limited [2003] NSWSC 812, at [67] Palmer J noted that as far back as 1661 it had been accepted that "precedents sub silentio without argument, are of no moment", citing R v Warner (1661) 1 Keb 66, at 67; (1661) 83 ER 814, per Twisden J.) 137 Therefore, insofar as the conclusion of the High Court, by majority, in Forbes that there was an obligation to afford procedural fairness in the case there before it involved any finding as to the nature of the power there being exercised or the consequences of exercise by an owner of such a power, that would not seem to be binding on a court later considering the issue in a contested context. 138 That does not mean, however, that no weight is to be accorded to the observation made by their Honours (whether those relied upon by Mr Ashhurst or those by Mr McHugh). In Ying v Song [2009] NSWSC 1344 I had reason to consider the question as to the binding force of obiter dicta in appellate courts, noting what the High Court had said in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, at 492 and the reiteration of that position in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89. Considered dicta of the ultimate appellate court must be afforded great weight and should be departed from only with the greatest of caution.

[71]

In other words, neither the stewards nor the inspectors or supervisors are bound to defer to the views of the committee that a person who has not been warned off should be excluded from a course. It is not altogether surprising that the rules should fetter in this way the powers of the owner of a racecourse used for trotting. An owner who uses his land to conduct public race meetings owes a moral duty to the public from whose attendance he benefits; if he invites the public to attend for such a purpose, he should not defeat the reasonable expectation of an individual who wishes to accept the invitation by excluding him quite arbitrarily and capriciously. The rules recognize the public nature of the race meeting by placing some restrictions on the rights of the owner of the course. Speaking broadly, the effect of the rules is that on a day on which a race meeting is being held the respondent cannot use its powers by preventing, for no apparent reason, a member of the public who is in a decent condition and behaving properly from entering the course. The control of the course, and the power to exclude people from it, have been conferred temporarily on the stewards, and if the respondent wishes to ensure that an individual is excluded it must take action under r 28 to warn him off, but it must observe the requirements of natural justice in doing so. This may be put in another way by saying, as Mahoney JA said in the Court of Appeal [there in a dissenting judgment], that the effect of the rules is that, in relation to relevant persons, a power to prohibit entry of the kind which constitutes a warning off may not be exercised in any manner other than in accordance with the rules; the effect of the rules is to impose restrictions upon the manner in which the respondent may exercise its proprietary rights. (my emphasis) 149 In other words, on his Honour's construction of the Rules, the power to warn off persons from the race course on a race day reposed in the stewards and not the committee of the Club (ie the owner of the course). Not surprisingly, in those circumstances, his Honour expressed the opinion that if the owner (ie, in effect, the committee) wished to exclude a patron from the course it would need to take action under the Rules (and, as had been conceded by the parties, it would then be obliged to observe the rules of natural justice). 150 However, it is relevant to note that his Honour reached that conclusion as a matter of construction of the Rules and not by reference to the 'public' (or otherwise) nature of race meetings (though drawing some comfort or support in that regard by what he perceived to be the "moral duty" of an owner in that situation). Therefore, insofar as his Honour expressed the view that there was a 'moral duty' on the owner of a public venue in such a situation, that seems to me not to have been a necessary part of the reasoning for his Honour's conclusions either as to the characterisation of the notice or as to the alleged futility of the order (that going to the exercise of discretion) and therefore it is obiter. 151 Mr Ashhurst then placed reliance on what was said by Murphy J, in a passage which his Honour himself described, in effect, as obiter. Having stated that (as was conceded, at least insofar as the decision was found to have been made under rule 28) a decision to warn off must be made in accordance with the principles of natural justice, and having dismissed the suggestion that the resolution, even if invalid, could be treated simply as an exercise of the owner's rights, his Honour went on to state his views briefly as to why the contention that the Club was in the same position as an individual householder with a right arbitrarily to exclude anyone it wished was incorrect (at 274):

[72]

The respondent is not only an owner of land, it is registered under the Gaming and Betting Act 1912 (NSW) as amended to conduct race meetings on the lands and, under the Totalizator Act 1916 (NSW) as amended to permit tote betting on the lands. Because of this, the respondent exercises power which significantly affects members of the public, tens of thousands of whom go to watch the spectacles, many to bet as a hobby, and some, like the appellant, to try to make a living by betting. Many hundreds depend on it for their livelihood in occupations such as bookmaking, training and driving. The functions of the respondent in relation to the conduct of race meetings on its lands are qualitatively different from that of the ordinary householder exercising his private property rights . A householder, exercising his property rights, may do so against the public, and ordinarily this is sensibly regarded as the exercise of a private right and of private power, although the right stems from a public source and is ultimately enforceable through public administrative and judicial authorities. A householder exercising his property rights of exclusion is not in the same position as persons with licences to conduct public halls, restaurants, theatres or racecourses. From early times, the common law has declined to regard those who conduct public utilities, such as inns, as entitled to exclude persons arbitrarily (see White's case (1558) 73 ER (KB) 343). However, in Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, the court, in my opinion wrongly, dealt with exclusion from a racecourse as if the case were concerned with private rights only. That case differs from the present case in that there the person was removed from one meeting during its course; here the exclusion is from all meetings indefinitely. (my emphasis) 152 Mr Ashhurst submits that there is no suggestion that when there was reference in Heatley to a private right (see p 511) what was being considered was a right arbitrarily and permanently or indefinitely to exclude someone from participating in the public activity of gambling, a distinction sought to be drawn by Murphy J in Forbes (at 274-275) in relation to Cowell. Of course, that means, equally, that the passages in Forbes on which Mr McHugh relies, are also obiter unless necessary for the purposes of reaching a conclusion as to the characterisation of the notice (or perhaps as to the exercise of a discretion in relation to the relief sought). 153 Insofar as his Honour drew a distinction between the removal of a person on a one-off basis and the exclusion of a person indefinitely, Mr McHugh submits, in effect, that the ratio of Cowell was that what was there being exercised were rights of a private nature and, if so, it is irrelevant whether the right is exercised on an indefinite basis or not. It seems to me that this is correct. 154 Murphy J then said (at 275):

[74]

It seems to me that the resolution of this case does not depend on the terms of the club's rules or by-laws. If these purport to exclude natural justice in the making of a decision to warn off or to permit arbitrary exclusion of a person from the lands, then they are to that extent invalid as being contrary to public policy. This result is consistent with the concept of due process which has its roots deep in the common law. The fact that this concept was taken to the American colonies and became the basis of Federal and State constitutional guarantees should not obscure its common law nature and its close association with great English constitutional instruments which have become intertwined with the common law. Natural justice and fairness are different ways of expressing the concept or facets of the concept of due process. When one departs from the purely domestic area of householder and from contracts affecting only individuals, into the sphere where there is an accumulation of rights the exercise of which affects the public to a significant degree, then increasingly, requirements of due process are imposed and arbitrary and unreasonable conduct is not permitted. This approach has been taken to monopolies, contracts in restraint of trade, as well as to statutory authorities. It has also been taken to the conduct of trade unions and clubs in dealing with their members. The question is where the line is to be drawn between public power which requires observance of due process and private power which does not. The development of civil rights and liberties is evolutionary (see Earl of Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] AC 603 at 614 ; [1923] All ER Rep 442. The stage has been reached where the exercise of power to exclude a person indefinitely from a public racecourse should be treated as public power subject to due process. (my emphasis) Defendants' submissions on Forbes 155 As noted above, Mr McHugh submits that the ratio of Forbes is very narrow - going simply to the characterisation of the notice - and that everything else (including the passages on which he relies) is obiter. He places weight on what was said by Barwick CJ (in his dissenting judgment) and by Aickin and Stephen JJ. 156 Barwick CJ first noted the concession that had been made (at 248):

[85]

…It was submitted on [the Club's] behalf that even if, as I believe to be the case, the resolution complained of by Forbes must properly be regarded as a purported exercise of the power to "warn off" conferred by r 28, vitiated for want of observance of natural justice, yet the club's ownership and occupation of its two trotting courses nevertheless enables the resolution to be supported as valid, at least in respect of those two courses. I would prefer to base my rejection of this submission upon the second only of the two grounds relied upon by Aickin J, rejecting it for the reason that an ineffective exercise of the power to "warn off" conferred by r 28 cannot be saved or made good by calling in aid the existence of the quite distinct power of the club arising not from any rule but simply from its status as owner and occupier of these two courses . No true analogy, such as was sought to be drawn by counsel for the club, exists between the present case and that of the justification of the dismissal of a servant upon grounds other than those on which the employer in fact acted: nor can support be found for the submission in the passage relied upon from the judgment of Gibbs J in Re AWU; Ex parte Graham (1977) 13 ALR 545 at 553. The present is not a case of the exercise of some specific power or jurisdiction found to be sustainable on grounds other than those in fact relied upon at the time of exercise: it is, rather, a case of the purported (but in fact vitiated) exercise of a particular power which might only be validly exercised, and thus give rise to legal consequences, if exercised with due regard to the requirements of natural justice. In such circumstances it is nothing to the point that the exercise of some quite different power might have been valid and effective without need to conform to such requirements. (my emphasis) Application of Forbes/Heatley on present facts 164 What conclusion, for this claim, follows from an analysis of that dicta? 165 It seems to me that the following propositions emerge from a synthesis of their Honours' judgments in the above cases: (a) a non-owner or occupier of property (such as the Commission in Heatley ) exercising a statutory power to exclude persons from a public venue such as a racecourse (or, as here, a casino) has an obligation to afford natural justice (at least where its decision to exclude directly affects rights, interests or legitimate expectations of members of the public); (Therefore, but for the exclusion in s 141(4), it would seem difficult to argue that the Authority, in exercising a power to exclude someone from the casino, would not be so bound.) (b) an owner (or occupier) of a public venue such as a racecourse (or casino), not having a statutory power or some form of governmental or administrative control, does not have an obligation to afford natural justice when deciding to exclude a person from that venue, even though it may be in breach of a contractual obligation in so doing (Cowell, Heatley, Forbes) (unless the position espoused, in obiter, by Murphy J in Forbes, is correct and extends so far as to operate such that the public nature of the venue gives rise to such an obligation even in the absence of a relevant statutory power because the owner can be said to be exercising a "public power" and/or because the exclusion is indefinite rather than "one-off"); (c) where an owner (or occupier) of a public venue does have, in addition to its private rights, a statutory (or controlling) power in respect of a public activity carried on at that venue, then if, as a matter of construction, it exercises that power (as opposed to any private proprietary rights it may also hold) to exclude a patron or member of the public from that venue, it is likely to have an obligation to afford natural justice (and cannot save an invalid exercise of that power by reliance on an alternative common law power which it had not purported to exercise) ( Forbes ); (Thus if, in truth, what Star City was doing when it issued the Notice was an exercise of a power under s 79 of the Act statutorily to exclude Mr Hinkley, I would have held that it had an obligation to afford him natural justice in so doing.)

[86]

(d) where an owner (or occupier) of a public venue has a statutory/controlling power and does not, as a matter of construction, exercise that power but relies instead on its private proprietary rights to exclude an individual from entry to the venue, then the weight of dicta favours the view that it does not thereby have an obligation to afford natural justice (Barwick CJ, Aickin and Stephen JJ versus Gibbs and Murphy JJ in Forbes , with Mahoney JA dissenting in the Court of Appeal). 166 I should note that where there is an obligation to afford natural justice in any of the above scenarios, this arises on the basis that what is being exercised is a power (of a statutory, administrative or "public" nature) to make a decision which affects the rights, interests or legitimate expectations of a member of the public to have access to such a venue. 167 Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th edn), Lawbook Company, 2009, at [7.65] note that the current threshold test for determining the application of procedural fairness (though they refer to earlier indications that it might have been expanded beyond this) remains that established in Kioa (see [7.65/7.780]) - that being, that there is an administrative (or governmental) decision which affects rights, interests and legitimate expectations in a direct and immediate way (at 584). They emphasise (at [7.330]) that the duty arises in the area of what they suggest can "loosely" be described as "governmental" decision-making, which they see as implying a limitation on the reach of procedural fairness. The starting point of that reach is identified by the authors as found in the concept of "public power". 168 The authors posit (fn. 915 para 7.330) that in "special cases" (such as Forbes, there citing Murphy J, and Crowe v Mercy Health and Aged Care Central Queensland Ltd [2001] QSC 384, at [18] per Dutney J) a duty may arise where the exercise of power is by a company that is essentially an incorporated club or is providing a public function under governmental authority, but consider that the imposition of a duty in that case is due to the nature of the power in question not the form of the entity on which it is conferred. (In effect, this is what is contended for by Mr Hinkley - that it is the 'public' nature of the function whether to permit entry to the casino carried out by the holder of a statutory licence to control gambling at the casino that gives rise to the alleged obligation to afford natural justice.) (The recent decision in M61/2010E (and M69/2010) v Commonwealth of Australia [2010] HCA 41, albeit in a very different context, supports the view that it is the nature of the power being exercised that is relevant in considering the obligation to afford natural justice.) 169 On that analysis, what is relevant to determine is whether, in issuing the Notice, Star City was exercising a "public power". (It seems to me difficult on any view to suggest that Casino Properties, which has no statutory power or function in this regard, was so doing.) 170 Insofar as much weight was put, in argument before me, on whether a person in Mr Hinkley's position would have a legitimate expectation of access to the casino (or to the Sovereign Room), it is noted by Aronson Dyer & Groves that the concept of legitimate expectation has been used both to extend the application of procedural fairness and to increase its content (see 7.120, 7,175-7.230 and Ch 8) though noting that "its role as an overarching concept has been on the ebb" see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (para 7.120). 171 It is suggested by the authors that the concept has been made redundant by the broader reach of the threshold test (at [7.145]), that test being by reference to whether the decision affects the interests or circumstances of identified individuals (though they note that, in Lam, at [34] Gleeson CJ considered that in some contexts the existence of a legitimate expectation might enliven an obligation to extend procedural fairness.) In the M61/M69 cases, the High Court, has recently referred with apparent approval to what Mason J had said in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, at 360 that the obligation to afford procedural fairness is not limited to cases where the exercise of the power affects rights in the strict sense but extends to exercise of power that affects an interest or privilege, emphasising the importance of identifying the rights and interests affected. 172 The (formerly principal but now alternative) basis on which Mr Ashhurst contends that the obligation of natural justice arises in this case (namely, that what Star City was exercising, in effect, was a public proprietary right (as distinct from a personal proprietary right) when excluding Mr Hinkley from the casino) would, if sustained, seemingly satisfy the threshold test without the need to resort to the concept of, or identify a, legitimate expectation affected by the decision, since it is couched in terms of the public nature of the right or power being exercised. 173 Reliance for the proposition that this was an exercise of a public power rests largely on the dicta of Murphy J in Forbes, who contrasted in qualitative terms the position of an individual householder and someone in the position of the Club in that case. The public policy test invoked by Murphy J seems to envisage a balancing exercise between the rights of the owner or occupier of a "public" venue (or, as described in article by Ian Warren, 'An air of uncertainty: private security regulation in Victoria' (1997) 2(2) Deakin Law Review 223, "mass private property") and those of an individual. In this regard, a casino is seemingly in no different position than, say, a football stadium, nightclub, bar, theatre or shopping centre, all being areas to which the public or sections of the public can generally have access, whether with or without payment of a fee, and some aspects of which (such as the operation of poker machines or the sale of alcohol) are subject to the holding of particular licences. (The "public" nature of such property has been considered, for example, in Canada in the context of allegations of trespass by a picketer on a shopping centre sidewalk - Peter Harrison v Sophie Carswell [1976] 2 S.C.R. 200; [1976] 2 RCS 200; applying Peters v The Queen (1971) 17 D.L.R. (3d) 128, where the owner was able to maintain an action in trespass against the picketer on the curtilage of the shopping centre premises.) 174 Had the Notice (as properly construed) been issued under s 79 then there would have been much to support the view that it was in the exercise of a public power, that being a power conferred by statute on the casino operator in its capacity as casino operator and in the exercise of a power to regulate the exclusion of patrons at the casino (carrying with it potential criminal and other consequences). 175 However, to suggest that an owner (or occupier)'s common law property rights are limited by the fact that it controls or makes available to the public a venue for public entertainment seems inconsistent with the recognition in Cowell that the owner of a racecourse might terminate arbitrarily the licence of a racegoer. Does the existence of additional powers with which the owner might choose to control that activity alter the position? The fact that control of the activity, as here in the case of gambling, derives from a statutory power or licence (or, as in Forbes, a governmental consent) does not seem to me sufficient of itself to override or limit the ability of the owner or occupier to exercise whatever common law proprietary rights it may also have, absent an indication in the statute that it was the intention of the legislature so to limit their exercise. 176 The relevant question here is whether the statute operates to abrogate any common law right arbitrarily or capriciously to refuse to grant a licence to enter the casino (or to act in some other way otherwise than in accordance with procedural fairness) simply because the entity exercising such a right (here, Star City) controls the operation of gambling in the casino and has the benefit and responsibility of holding a casino operator's licence to control gambling in the casino. 177 As noted earlier, while Mr Ashhurst initially drew a distinction between abrogation of a common law right and a limitation on how that right is to be exercised, if his fallback argument is correct (and, in exercising its common law right to revoke a licence, Star City is obliged to act in accordance with the statutory exclusion power - which Mr Hinkley contends would oblige it to observe the principles of natural justice), then in substance there is no scope for the common law proprietary right to operate in anything but name. 178 Therefore, insofar as it seemed, in argument, to be suggested that the consequence of having the powers (or privileges) reposed in the casino operator is to require it to exercise those powers in accordance with the way a statutory power would be exercised, this does not seem to me to address the fact that, had the legislature intended that persons be excluded from the casino only by utilisation of the s 79 procedure, it could have made express provision to that effect. 179 There does not seem to me to be a discernible statutory intention that the s 79 procedure was to cover the field in prescribing the way in which access to the casino could be limited by the casino operator. Had the legislature intended that to be the case then it would have been a simple matter to do so. 180 If an owner/occupier in the position of Star City is obliged (by reason of its statutory power of exclusion and/or its statutory right or function to operate and control gambling at the casino) to afford natural justice, then it is difficult to see why a nightclub operator, for example, holding a statutory liquor or gambling licence (or both), would not be under a similar obligation when refusing entry to customers. Where then would the line between "public" and "private" powers be drawn? 181 As Mr McHugh submits, if Mr Hinkley is entitled to be afforded natural justice by Star City and Casino Properties in relation to the Notice (which Mr McHugh submits is just an advance or blanket version of an on-the-spot decision to refuse entry), then logically a Star City staff member at any casino entrance must also afford natural justice when he or she makes an "on-the-spot" decision to permit or refuse entry to patrons.) (Mr Ashhurst, however, submits that there is a confusion between Star City's right to make an on the spot refusal of entry (of the type discussed in Forbes at 264.6 and 275.6 and in Heatley at 510-511, as a private right) and the statutory entitlement to exclude indefinitely. It seemed initially to be accepted by him that the first of these rights is properly described as the operation of a private right that does not carry with it the obligation to provide procedural fairness but that the right to exclude (similarly to that of the right to "warn off") is either the exercise of the statutory right or the exercise of a public right which does carry with it the obligation to provide procedural fairness. However, such a submission is inconsistent with the now contention that the only licence a person can have to enter the casino is a statutory licence (albeit one granted by the casino operator) since in that case there could be no distinction between a decision "on the spot" to grant or withhold the grant of a licence to enter the casino and a decision to exclude indefinitely. 182 The potentially arbitrary or capricious nature of refusal of entry (assuming that does not breach other legislation, such as anti-discrimination legislation) is something that follows upon the concept of private ownership or occupation of premises - be they individual houses or larger venues that are made open to the public. A casino is in no qualitatively different position than, say, a nightclub in this regard, yet would it be suggested that there was an obligation to afford natural justice in the decision whether or not to admit entry to a venue of that kind? I am not persuaded that public policy requires the conclusion that there is an obligation of natural justice in the present context and I would follow the observations of Aickin J (with whom Stephen J concurred and Barwick CJ in that regard. 183 I would therefore answer this second question in the negative.

[89]

186 For the reasons set out below, I consider that the true nature of the Notice is the withdrawal of (or, perhaps more precisely, refusal in advance to grant) a common law implied licence in the exercise of Star City and Casino Properties' respective proprietary rights. This is not, as in Forbes, a case where, having invalidly issued an Exclusion Order, that same order is now sought to be maintained as a withdrawal of licence. 187 In Forbes, there was only one notice and it purported to cover all courses then or which might become under the "control" of the Club. In its reach it was found to cover not only the two courses owned by the Club (in respect of which the Club had undisputed private proprietary rights) but also other race courses (which it did not own but over which it had or might have control). In Forbes, what the Club unsuccessfully sought to argue was that if the relevant notice was invalid as an exclusion notice, then it could be "saved" (i.e. relied upon by the Club) by treating it as a notice given in the exercise of its private rights. Here, there were two notices, very different in their terms, and (at least for a time) both were on foot and (subject to questions as to validity) operative. 188 In submitting that the Notice was in fact an exercise of common law rights, Mr McHugh emphasises not only that this was expressed in the terms of the Notice itself but also that the Notice was issued by both Star City and Casino Properties and relates to every part of the Premises and not only the casino. As noted earlier, Casino Properties has no power to exclude a person from the premises other than in exercise of its common law proprietary rights. Similarly, neither Star City nor Casino Properties has any statutory power to exclude a person from the non-casino premises other than in exercise of whatever their common law proprietary rights may be. Mr McHugh notes that the non-casino parts of the premises are not regulated by the Act (other than insofar as the Commissioner of Police has power under s 81 to exclude a person from the "casino precinct" as defined by the Regulations). 189 While the fact that the notice was issued by both defendants (only one of whom had any statutory powers of exclusion under the Act) and covered premises in addition to those regulated by the Act would not of itself necessarily lead me to conclude that, when Star City was issuing the Notice, it was doing so in the exercise of a common law proprietary power (and while the fact that it was expressed not to be in exercise of statutory power might be seen to be self-serving and again not necessarily determinative of the issue), I consider it to be significant that there was already on foot, at the time the Notice was issued, an Exclusion Order under the Act. Admittedly, that Order was subsequently revoked but it does not alter the fact that there can have been no need for a second Exclusion Order at the time the Notice was issued. (While it might be suggested that a plausible explanation for a second s 79 exclusion order was to address concerns as to the validity of the first, such as when a second notice or demand is issued, without prejudice to a contention that the first was binding or otherwise valid, in order to preserve the position in case that contention proved to be wrong, that explanation would only have logical force if the second notice in some way sought to address those perceived concerns or deficiencies. Here, the Notice made no attempt whatsoever to address the substance of the complaints that had been made in relation to the Order - indeed, in its terms the parties issuing the Notice expressly disavowed any need to do so.)

[90]

190 The fact that Star City may have considered that there was more prospect of enforcing the Notice than the Exclusion Order is no reason for construing the former to be an instance of the latter. 191 In construing the effect of the Notice, the two alternatives (as put to me initially) seemed to be that it was a notice in truth exercised under the statutory power of exclusion in s 79 or it was an instance of exercise of a common law proprietary right (albeit one that it was said should have been exercised consistently with the former or one that was of the nature of a public power). 192 Reference having been made to Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096; (2005) 62 NSWLR 534, and my attention having been drawn as to the distinction there drawn between the proprietary rights of a lessee and the contractual rights of a licensee, it seemed to me that there had been an assumption (without that assumption having been tested) that Star City as licensee had the power at common law to exclude patrons from the casino. (The validity of that assumption was a relevant factor in construing the Notice because, if Star City had no such common law power and the Notice operated in effect as an exclusion, then it might be thought that it must necessarily have been predicated on the existence and exercise of a statutory power). Hence, the further submissions I invited the parties to make on that issue. 193 As it was made clear in the course of those supplementary submissions that it was common ground Star City had actual possession of the casino premises (so as to have standing at common law to maintain an action in trespass), the issue I had posed for consideration did not arise. There was no dispute that (if I were to find against Mr Hinkley on the question of statutory codification, as I have) then Star City had the common law right to grant a common law licence to patrons to enter the casino premises, subject only to a question as to the process it had to follow in so doing. (There was some debate as to the position of the non-casino premises which I address in answer to sub-issue (iii).) Had it been necessary to determine, I would have held (having regard to what was said in Georgeski at paras [94], [98], [101], [104] and [106] in particular, and the authorities to which Barrett J there referred) that Star City did have possession of the casino premises in fact (notwithstanding that its licence conferred only contractual rights in relation thereto and not an interest in land as such). 194 Having regard to the terms of the Notice and the circumstances in which it was issued (in particular, the fact that at the time it was issued there was in existence already an Exclusion Order that had been issued under s 79 and hence the expressed intention on the part of Star City not to follow that course is consistent with what it in fact did in issuing the Notice) I find that the Notice was issued by it in the exercise of its private proprietary rights and not in exercise of the statutory power held by Star City to issue a s 79 Exclusion Order.

[93]

200 Mr McHugh submitted that the 'clubs' cases are irrelevant here since Mr Hinkley cannot point to any contractual right to enter the casino or the casino premises. Furthermore, Mr McHugh submitted that, as the source of any such obligation of natural justice is contractual (whether the term is express or implied), any contravention in such a case is a breach of contract (citing Rose, at [105] per Brereton J). 201 There was no evidence of any unincorporated body or other kind of cooperative association of Sovereign cardholders mutually bound and governed by agreed rules of club membership as is found in the so called 'club cases' which have considered a member's entitlement to natural justice in relation to expulsion from membership - and this submission was not strongly pressed as such by Mr Ashhurst. The Sovereign Room 'membership' in that sense seems to me to be a misnomer. What Mr Hinkley obtained, when his card was issued, was some form of recognition that he had passed the first hurdle for entry to the Sovereign Room. It is not apparent from the terms of the form of application for access that Mr Hinkley completed, that he would be automatically granted access on acceptance of his application or on presentation of the Sovereign card - indeed the application expressly noted that access was not guaranteed. 202 It was submitted by Mr Ashhurst that contractual consideration can be provided simply by an acknowledgment of terms and conditions, and I accept in principle that this may in appropriate circumstances be sufficient consideration for a contractual promise. However, it seems to me difficult to discern in the terms of the application for access any objective intention that acceptance of the application would give rise to a binding contract pursuant to which Mr Hinkley could insist upon admission to the Sovereign Room on any particular occasion (and such a contract, without reserving on the part of Star City a discretion to refuse entry, would surely not be consistent with the objectives of the legislation in relation to the control of gambling to which I have referred above). 203 I am therefore unable to conclude that there is any binding contract pursuant to which Mr Hinkley is either entitled to insist upon access or to require that he be afforded natural justice in relation to any particular decision not to permit him access to the Sovereign Room. Even if there were such a contract, breach of it would sound in damages not an application for judicial review. 204 I have considered whether the acceptance of Mr Hinkley's application in relation to Sovereign Room access might be said to provide a legitimate expectation such as to give rise to an entitlement to be afforded natural justice. In the absence of a finding that this was a decision made in the exercise of a 'public' power in the sense considered above, the existence of an expectation on Mr Hinkley's part does not suffice to establish an entitlement to procedural fairness (as discussed above). Moreover, I do not accept that Mr Hinkley's Sovereign cardholder status would have given rise to any expectation beyond an expectation that if he were permitted access to the general casino premises and he presented himself at the entrance to the Sovereign Room, then a staff member would consider whether to permit him access. 205 I therefore answer this question in the negative. (iv) Could Casino Properties exclude Mr Hinkley in any event? 206 The final sub-issue relates to the question of futility canvassed during the hearing. On the assumption that the Notice as issued by Star City is invalid (for failure to observe the rules of natural justice), could the Notice still operate as an effective notice to exclude Mr Hinkley from the casino by reference to Casino Properties' refusal to permit him access to the non-casino premises (through which he would need to travel to get to the casino). This question seems to be predicated on there being in existence some form of existing licence (be that a statutory or free-standing common law licence) at the point at which Mr Hinkley arrives at the casino complex. 207 Mr Ashhurst raises two principal arguments in this context. First, he says that Casino Properties has no common law power to exclude Mr Hinkley (on the basis that it is Star City that has actual possession of the casino complex and therefore has standing to sue in trespass to the exclusion of any such suit by Casino Properties) and, secondly, that there is an implied easement that has been granted to the invitees of Star City of which Mr Hinkley has the benefit. (Insofar as complaint was made as to the joint nature of the Notice or the fact that it covered two separate parts of the casino complex, it did not seem to me that this went beyond the substance of the two main arguments raised by Mr Ashhurst.) 208 I consider each in turn. Right to maintain a claim in trespass against Star City's invitee? 209 It is submitted by Mr Ashhurst that the argument that Casino Properties would be separately entitled (as licensor) to evict persons that Star City (as its licensee) could not, would be contrary to the principle that the party entitled to evict is the party who is in actual possession of the premises (relying upon Georgeski, at [98]). 210 Clause 2 of the Occupational Licence Agreement dated 14 December 1994 between Casino Properties and Star City sets out the nature of the licence granted to Star City under the occupation agreement. It is clearly stated to be a non-exclusive licence and there is express recognition that the licence does not confer any proprietary rights (and confers contractual rights only) on Star City as licensee. Clause 2.1 provides: 2.1 Grant of Licence: (a) SHCP [Casino Properties] grants to SHC [Star City] and SHC accepts from SHCP a licence granting SHC a non-exclusive right to occupy the Permanent Site for the Term subject to the obligations and provisions set out in this Agreement. … (c) SHC acknowledges that this Licence and the other rights conferred in this Agreement rest in contract only an do not create or confer on SHC any tenancy or any estate or interest whatsoever in or over the Permanent Site and the rights of SHC will be those of SHC only and do not comprise or include any further or other rights. 211 There seems no dispute that the licence so conferred extends to the whole of the casino complex (other than the light rail easement), thus covers the non-casino premises and there was evidence from Mr Stevens that the entrances on non-casino land to the casino are staffed by Star City employees. 212 As noted in Georgeski, trespass vindicates possession and rights of possession rather than mere occupation (at [103]). As lessee of the casino complex, there would thus be no question as to Casino Properties' standing to sue in trespass but for the fact that under the licence arrangements with Star City the latter is in occupation of the whole of the casino complex and in actual possession of at least the casino premises (if not also the non-casino premises). In Georgeski, Barrett J thus noted at [106]:

[95]

Possession in fact may also be sufficient, at least as against a defendant having no right of possession. Such a defendant, unless entering with the authority of the owner or lessee, may not plead that person's right to possession as a defence and, for that reason, may be unable to resist an action by a plaintiff whose possession is possession in fact only. But possession in fact is by no means the equivalent of occupation, even sole occupation. It may be found to exist where, as Wonnacott put it (see paragraph [102] above), a person "is, as a matter of observable fact, enjoying the rights and incidents of an estate or interest in land". Mere physical presence or physical use can never satisfy that test. 213 Insofar as the position of Casino Properties depends on the rights it has granted to Star City over the non-casino premises, the first question would be whether those rights give Star City actual possession or possession in fact sufficient to maintain an action in trespass and, if it does, then whether Casino Properties retains the right of possession sufficient to maintain its own action on trespass. In other words, does the existence (if that be the case) of actual possession in fact by Star City operate to exclude any concurrent standing on the part of Casino Properties. 214 The evidence as to Star City's control over the non-casino premises is not as clear as in relation to the casino premises - in the case of the latter, Star City has statutory powers and functions and it is not suggested that Casino Properties exercises (or would be able to exercise) any control over the activities on that part of the premises. In the non-casino premises there is obviously not the same statutory control. However, the evidence was that Star City staff are stationed at the entrances and it might be inferred that if, say, security issues arose on the premises it would be Star City staff that would respond at least in the first instance. (And I note that the Notice itself, though issued for both defendants, was on Star City letterhead.) 215 Relevant to his Honour's determination in Georgeski that an action in trespass could not be maintained by the licensee there, was the fact that the right of occupation under the licence was for a stated purpose and did not confer an exclusive right to possession; and that the area subject to the licence was open and unfenced. His Honour said [at 38]:

[99]

The lessee, having a right to exclusive possession, could, before entry into possession, maintain an action for ejectment. A licensee, if he did not have a right to exclusive possession, could not bring ejectment. A tenant or a licensee who was in actual possession - that is to say in occupation in circumstances in which he had exclusive possession in fact - could maintain an action for trespass against intruders; but that is because he relied on the fact of his possession and not on his title. 219 His Honour cited with apparent approval (at [102]) the distinction drawn by Wonnacott, writing in 'Flawed judgment' [1999] Estates Gazette 165, between "occupation" and "possession" and noted that the former entails physical presence or physical use or enjoyment in some tangible way but that the latter does not describe a relationship between a person and any tangible property. Rather, "[i]t describes "a relationship between a person and an estate or interest in land, rather than a relationship between a person and any physical feature of the land". 220 It seems to me on the evidence of Mr Stevens that the likely conclusion is that Star City has actual possession of the whole of the casino complex, notwithstanding that Casino Properties has implicitly reserved to itself the ability to license others to enter onto or traverse the non-casino land by the grant of the licence being on a non-exclusive basis (though there is nothing in the licence agreement it entered into with Star City that reserves a right to exclude Star City's guests or invitees from the premises and I doubt whether that could be implied from the non-exclusive nature of the licence). 221 Does this mean that Casino Properties therefore has no right to refuse access to, or to remove from, the non-casino premises or to sue in trespass (leaving aside for the present the question whether it can do so to a person who has the status of an invitee of Star City)? 222 This turns on whether more than one party can maintain an action in trespass at the same time (here, both the lessee having the right to possession subject to the grant of a non-exclusive contractual licence and the licensee having actual possession in fact). 223 Smart AJ in Craftsman Homes Australia Pty Limited & 3 Ors v TCN Channel Nine Pty Limited & 2 Ors [2006] NSWSC 519, considered whether multiple parties could maintain an action in trespass in respect of the same land at the same time. There, it was submitted that the plaintiffs were joint occupiers and each entitled to bring proceedings against a third party with inferior title, reliance being placed on Newington v Windeyer (1985) 3 NSWLR 555, at 563E and 564A where McHugh JA, as his Honour then was, had noted that one did not have to be the owner of land to be able to maintain an action of trespass and that seisin gave ownership good against everyone who had a better, because older, title. Smart AJ did not cavil with the proposition that two or more persons might be occupiers (and able to sue for trespass) at the same time or with the proposition that for a person to be an occupier it was not necessary that the person have entire control over the premises (though his Honour there, not without some doubt, ultimately reached the conclusion that the corporate plaintiffs did not have a degree or control over who entered the premises to have sufficient title to sue in trespass). 224 In Craftsman, the corporate plaintiffs who were found not to have standing were companies associated with the individual tenant and the finding that they could not maintain the claim in trespass turned, not on the fact that there was more than one party asserting standing to sue, but on the lack of control of the corporate occupiers (who hence did not have the requisite level of possession to maintain the claim). The position is somewhat different here, where Casino Properties is the holder of the leasehold interest and where it has maintained (at least arguably) some control over the non-casino premises by implicitly reserving an ability to license others to use parts of those premises. 225 In BBB Constructions Pty Limited v Burn [2008] NSWSC 1356, the question whether two parties with different interests in land could concurrently have standing to sue in trespass arose in the context of a pleading dispute, in which the defendant had complained that the legal right to possession on which the claim in trespass was based had not been adequately pleaded. In that context, McCallum J noted that one plaintiff (a company retained to carry out construction works on the site) had asserted that it had exclusive possession of the whole of the site and the other plaintiff (the owner of the land) had maintained that it retained a legal right of possession of the site "possibly even to the exclusion of the [building company plaintiff] as its agent". Complaint was made that any cause of action in trespass lay at the suit of either the owner or the builder in possession but not both. Her Honour noted that there was an issue as to whether the suit could be maintained by both but did not need there to determine it, saying at [24] that:

[104]

As Aikens LJ said in the Court of Appeal [2010] Ch 100, para 66, it is difficult to say that Bocardo has actual possession of the strata below the Oxted Estate as it has done nothing to reduce those strata into its actual possession. But he held that Bocardo, as the paper title owner to the strata and all within it (other than any gold, silver, saltpetre, coal and petroleum which belong to the Crown at common law or by statute), has the prima facie right to possession of those strata so as to be deemed to be in factual possession of them. I think that he was right to conclude that this was the effect of Slade J's dictum. As the paper title carries with it title to the strata below the surface, Bocardo must be deemed to be in possession of the subsurface strata too. There is no one else who is claiming to be in possession of those strata through Bocardo as the paper owner . (my emphasis) 227 This might suggest that, in the absence of conclusive evidence as to the extent of control by Casino Properties (as opposed to Star City) over the non-casino premises, it might nevertheless be deemed to be in possession as a function of the holding of its leasehold estate or interest in the land. 228 In Wuta-Ofei v Danquah [1961] 1 W.L.R. 1238; [1961] 3 All E.R. 596; (1961) 105 S.J. 806, the Privy Council held that the slightest degree of evidence may amount to possession sufficient enough to allow an owner to land to maintain a claim in trespass where a claim is made against someone who otherwise has no title to the land (in that case the facts sufficient to prove possession of what was otherwise considered to be vacant unenclosed land was that the plaintiff's mother "kept watch" on the land, where there was otherwise an absence of positive evidence indicating an abandonment of possession) but this was not a case where there was another party in occupation (and likely to have sufficient control over the site to be able to maintain it own claim in trespass). Lord Guest there said:

[122]

… The test is one of reasonable convenience and practicality, not of absolute necessity, and convenience and practicality must be assessed in the light of the factual matrix at the time that the estate in land was granted. So, if both parties to the grant contemplate that the grantee will use its land for a certain purpose or in a certain way, and at the time of the grant the land is in fact used in that way or for that purpose by means of an accommodation over the grantor's land, that in itself will usually be strong evidence that the accommodation is necessary, in the sense of reasonably convenient and practicable, for the reasonable enjoyment of the estate granted. 238 However, the principle expressed in the above cases concerning the imputation of a common intention on the part of the parties to confer such property rights as are reasonably necessary to the enjoyment of and additional upon the main grant, is one that relates to the grant of property, and not to a grant of contractual rights to occupy and remain on property or to use property for a particular purpose. 239 I was not referred to any authority for the proposition that the principle applies in the context of cases where there is a contractual right of occupation granted to a licensee (be that an exclusive or non-exclusive licence). It does not seem to me that this is surprising. An implied grant of an easement (creating a proprietary right) would seem inconsistent with the express term in the parties' licence agreement (as here) that it was to confer no proprietary estate or interest in the land. I have difficulty with the proposition that one would imply into the parties' agreement a term which directly contradicts an express term of that agreement. 240 I note that in Star Energy, to which I was referred by Mr McHugh on a different point, there was a suggestion that the doctrine of non-derogation from grant could apply in favour of licensee (as opposed to a lessee or recipient of a proprietary interest in land). In Star Energy, an issue arose as to whether a party granted exploration and extraction rights in relation to an oil field under a statutory licence was able to enforce such rights against a private third party who owned the land below which the oil field lay. Having determined that the third party's ownership of land extended below the surface of the soil to include the oil field and that (as the 'paper' owner of the land, absent any other party claiming exclusive possession), it could be assumed that the third party was in possession of the land and thus able to sue in trespass, consideration was given to whether the principle of non-derogation from grant provided Star Energy with a defence to an action in trespass. There it was said that where the licence was not granted by the owner seeking to bring the claim in trespass (but rather was a licence arising by way of statute) then the principle of non-derogation from grant (which it was said would otherwise been applicable, had the licence been granted by the owner) did not provide a defence to trespass. Lord Hope said (at [32]):

[127]

"But a licence to hunt in a mans park, and carry away the deer kill'd to his own use; to cut down a tree in a mans ground, and to carry it away the next day after to his his own use, are licences as to the acts of hunting and cutting down the tree; but as to the carrying away of the deer kill'd, and tree cut down, they are grants" (ibid, 351; 1109). To revoke a licence thus granted is to destroy or impair the grant, and a grantor of a proprietary right may not derogate from his grant. Thus a licence, in its ordinary nature revocable at the will of the licensor, is irrevocable when given by way of accessory to a grant, being then described as a "licence coupled with an interest", and it has always been accepted that the "interest" means a proprietary interest in land or chattels such as a right to cut timber, to take game, to construct and use a watercourse, and so on. The revocability of a bare licence, as opposed to a licence coupled with an interest, is demonstrated in the conflicting authorities of Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351 and Hurst v Picture Theatres Ltd [1915] 1 KB 1. In Wood v Leadbitter the plaintiff was ejected from the Doncaster races although he had bought and paid for his ticket. His action for assault was dismissed by the Court of Exchequer because the licence obtained by purchasing the ticket was not coupled with an interest and was therefore revocable by the defendant at will. The plaintiff's only remedy was to sue for damages for breach of contract. In Hurst v Picture Theatres Ltd the plaintiff was ejected from a cinema in the wrong belief that he had not bought a ticket for the performance. The Court of Appeal, in a majority decision, found in favour of the plaintiff in an action for assault on the ground (inter alia) that his right to see the performance amounted to a grant or interest, and that Wood v Leadbitter was inapplicable in view of the fusion of law and equity in 1873, which thereafter had authorised the Courts to recognise a binding contract of which specific performance could be decreed. Hurst's case has been the subject of considerable criticism. The actual result has been justified, notably by Viscount Simon LC, in Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173; [1947] 2 All ER 331, upon the ground that there must be read into the type of contract in Hurst's case an implied negative covenant on the part of the licensor that a well-behaved licensee shall not be evicted or otherwise treated as a trespasser until the event which he has paid to see is over. But little support can be found in the cases for the proposition relied on by the majority of the Court in Hurst's case that the right to see the performance amounted to a grant or interest to which the licence was accessory. The difficulties are apparent in seeking to extend in this context the notion of grant or interest to any legal right apart from a proprietary right in land or chattels. As Megarry J himself observed in the Twickenham Garden case (supra), counsel for the contractor had pointed to a variety of interests to which the contractor had succeeded pursuant to the building contract. They included possession of the site and an insurable interest in executed works and plant and chattels, but Megarry J, while recognising the logical force of the argument, elected not to decide the point either way. He went on to hold in favour of the contractor on the other point, namely the existence of an implied covenant on the part of the owners not to determine the licence in breach of contract. For my part, I cannot see any justification for extending the "grant" or "interest" beyond the traditional definition of proprietary interests in land or chattels. In my view the rights conferred on a contractor under a conventional building contract are in essence rights in personam, notwithstanding that they may attach to or be related to the owner's land and they cannot correctly be included in that category of proprietary rights in rem, which alone, on established authority, transmute the accessory licence into an equitable interest co-terminous with the life of the grant. (my emphasis) 244 In considering the issue whether a party granting a non-exclusive licence could refuse access to an invitee of its licensee, it seems to me that assistance may be derived from the somewhat similar (though of course not directly analogous) position of co-owners of property. In that context, consideration has been given to the question whether one co-owner can lawfully terminate a licence given by another co-owner (in Koumdjiev). 245 In Koumdjiev, it was implicitly accepted that one co-owner may terminate a licence given by another co-owner (each owner seemingly having the concurrent right to sue in trespass) but whether such a termination would be effective turned upon whether the licence so granted went beyond those rights that the licensor/co-owner itself would have and thus be able to license. In Koumdjiev the Court of Appeal seemed to proceed on the basis that if a licence is granted by one co-owner that is in excess of what is reasonable and incidental to that co-owner's possession, use and enjoyment of the property and which prejudices the other co-owner's common possession, use and enjoyment of the property, then such a licence will be terminable by another co-owner (at [41]). (I note that special leave to appeal to the High Court refused; State of New South Wales v Kouumdjiev [2006] HCATrans 7.) (See also Pitt v Baxter [2007] WASC 104). 246 In Koumdjiev, it was found that a tenant in common of property, although able to transfer or lease its interest to a stranger, cannot (short of such transfer or lease) grant a licence to a stranger which is irrevocable by other tenants in common if that licence is of a kind which goes beyond what is reasonable or incidental to the grantor's possession and use and enjoyment of the property, enjoyment in common with the other tenants in common, and which interferes with the possession and use and enjoyment of the property by other tenants in common. Hodgson JA (with whom Beazley JA and Hislop J agreed) noted (at [31]) that: There is little authority or textbook discussion concerning the position where one tenant in common of property purports to grant permission to another person to enter the property, and another tenant in common purports to refuse or revoke that permission. … and recognised at [34] that where what is granted by one tenant in common is a licence, and the other tenant in common purports to terminate or countermand that licence, the position is not clear. 247 His Honour referred to Robson-Paul v Farrugia (1969) 20 FCR 820; Annen v Rattee [1984] 1 EGLR 136; and Hong v Choo [2004] HKEC 64, and then at [40] - [41] said: In my opinion, the Hong Kong case [ Choo ] is incorrect insofar as it asserts that, so long as a licence granted by a tenant in common does not purport to give exclusive possession, such a licence may both authorise another person, in the absence of the grantor and for an indefinite period, to do whatever a tenant in common can do, and also not be terminable by other tenants in common of the property. In my opinion, that gives too little weight to an incident of possession, namely the right or power to grant or withhold permission to others to enter property . Although one tenant in common can transfer or lease its interest, I do not think one tenant in common can, without such a transfer or lease, grant a licence to another, irrevocable by other tenants in common, if that licence is of a kind that goes beyond what is reasonable and incidental to the grantor's possession and use and enjoyment of the property in common with the other tenants in common, and which interferes with the possession and use and enjoyment of the property by other tenants in common. For example, suppose there are two tenants in common of a small house, and one of them purports to grant a licence to twenty people to live in the house. If this amounted to excluding the other from possession, it would be a trespass; but if it fell short of excluding the other person, but was substantially detrimental to the other tenant in common's use and enjoyment of the property, in my opinion such a licence could be terminated by the other tenant in common, assuming that it went beyond what was reasonable and incidental to the grantor's possession and use and enjoyment of the property. That is, in my opinion, any licence in excess of what is reasonable and incidental to one tenant in common's possession and use and enjoyment of the property, and which prejudices the other tenant in common's possession and use and enjoyment of the property, is a licence terminable by the other tenant in common. Otherwise, in my opinion, there can be no reasonable reconciliation of the rights of both tenants in common to have possession and use and enjoyment of the property . (my emphasis)

[130]

250 Applying the above reasoning to the situation here, it seems to me that there is an argument that even if (as I think is the case) both Star City and Casino Properties have rights of possession over the non-casino premises and could maintain an action in trespass in respect of a patron whose licence to enter the casino complex (or that part of it under their respective control) had been withdrawn or refused, nevertheless Casino Properties' ability to evict or refuse access to the non-casino premises to an invitee of Star City (where such access was an incident to the right to use and enjoy the casino premises) would depend upon whether the access so sought was other than consistent with the reasonable use of the casino premises by Star City under its licence. 251 In my view it is not necessary to go as far as the implication of an implied easement in favour of invitees of Star City (even if it were possible to do so in light of the express provision in the licence disavowing the intention to create any proprietary rights in relation to the land). 252 I also note that while there would be a reasonable argument for the implication of a term into the licence agreement (necessary to give business efficacy to that agreement) that Casino Properties would permit invites of Star City to traverse the non-casino premises if additional rights of access were necessary to give effect to the purpose contemplated by the parties for the grant of the licence, (Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337) the difficulty for Mr Hinkley in such an analysis, however, is that any such contractual right lies in Star City, albeit ultimately perhaps for the benefit of its invitees, and a breach by Casino Properties would simply sound in a claim for damages by Star City. (There might potentially be a basis on which a party who, as against Star City, has a right of entry to the casino could compel Star City to enforce as against Casino Properties any rights of access it had impliedly promised to give across the non-casino premises, but no such claim was raised here and the issue was not the subject of argument before me.) 253 In summary, on this issue and noting that it does not strictly arise having regard to my findings on the earlier issues, I am of the view that, as against Mr Hinkley, (assuming for this purpose that he remains an invitee of Star City - either because he has the benefit of a statutory licence not validly excluded or because Star City has not validly withdrawn a freestanding common law licence), while Casino Properties is likely to have had sufficient title to bring an action in trespass (even though Star City would also appear to have standing to do so by reference to its actual possession of the premises), the question would then be whether Mr Hinkley could set up a defence based on the licence derived from Star City. 254 I do not consider that Mr Hinkley can maintain an entitlement to the benefit of an implied easement based on the doctrine of non-derogation from the grant. (Such a proprietary right would be inconsistent with the terms of the licence and as Mr McHugh pointed out, the purpose of non-derogation from grant relates to the party making the grant - and, here, it is not suggested that Casino Properties has granted anything to Mr Hinkley.) While I think it likely that Casino Properties would have an implied obligation, as a matter of contract, to afford access to Star City's invitees, that obligation is owed to Star City and though a breach of that obligation would potentially sound in damages viz a viz Star City it does not necessarily lead to the conclusion that Mr Hinkley could enforce as against Casino Properties rights under a licence from Star City. 255 However, by analogy with an analysis of the kind in Koumdjiev, it seems to me, in this case is that, having granted a non-exclusive licence to Star City for the purpose of enabling casino patrons (and other members of the public) to have access to the casino complex, Casino Properties cannot in effect terminate (or set up its own right to possession against) an invitee to whom Star City has granted a licence to enter the casino complex (unless that licence or the use made of that licence is for a purpose inconsistent with the reasonable use and enjoyment of the premises contemplated by the grant of the licence to Star City). The answer to this issue, in favour of Mr Hinkley, is therefore in the negative. Futility 256 As to the remaining discretionary question (namely whether there would be any utility in granting the relief sought if Star City could simply refuse to grant a fresh licence the next time Mr Hinkley attended the casino), this does not arise on the findings I have made. If it had arisen, and insofar as it is not already addressed above, I note that Mr Ashhurst submitted that there is no evidence that Star City intends to act capriciously and refuse entry to Mr Hinkley on every occasion that he attends at the casino and says that, if it did, any such arbitrary behaviour would itself be a denial of natural justice. 257 Had I been of the view that there had been an obligation to afford, and a denial of, natural justice on the part of Star City, then I would have considered the appropriate relief was to set aside the Notice. On the hypothesis that the claim for such relief was sustained, there is no evidence before me to suggest what would be the outcome of a re-consideration of the decision to exclude Mr Hinkley either in accordance with the procedures under s 79 of the Act or consistently with the manner of exercise of those statutory powers. (I have addressed above the question whether it would still have been open to Casino Properties to exclude Mr Hinkley irrespective of the position viz a viz Star City.)

Hinkley v Star City Pty Ltd

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Judgment (132 paragraphs)

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