Hinkley v Star City Pty Ltd & Anor

Judgment (25 paragraphs)

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R McHugh SC & K Richardson - First and Second Respondents Adams & Partners, Penrith - Appellant Mallesons Stephen Jaques - First and Second Respondents File Number(s): CA 2010/334935 Decision under appeal Citation: Hinkley v Star City Pty Ltd [2010] NSWSC 1389 Date of Decision: 2010-12-02 00:00:00 Before: Ward J File Number(s): 10/334935

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Judgment 1GILES JA : The facts and principal relevant statutory provisions are set out in the reasons of Tobias AJA, which I have had the considerable advantage of reading in draft. Drawing upon his Honour's reasons, I can briefly state why I concur in the orders he proposes. 2The appellant accepted that the Notice was an exercise by Star City of its right, as occupier of the Casino, to exclude persons from the Casino. He contended that nonetheless Star City could not exclude him without first observing the rules of natural justice, on the grounds - (a) he had a reasonable expectation of being allowed to enjoy the public activity of legalised casino gambling in New South Wales; or (b) the Notice was not just an exercise by Star City of its right, but also an exercise of "public power" concerning enjoyment of that public activity; or (c) where s 79 of the Casino Control Act 1992 ("the Act") gave Star City a statutory power of exclusion, it had to exercise its right consistently with any limitation on the exercise of the statutory power, and the exercise of the statutory power was limited by observance of the rules of natural justice. 3Each of these grounds was contested by the respondents. The respondents also contended that the Notice was effective as an exclusion by Casino Properties, as lessee in possession of the non-casino premises, from the non-casino premises, with the practical result that the appellant could not get to the Casino. 4The appellant accepted that, if natural justice did not have to be afforded in exercising the statutory power under s 79, his appeal must fail. That is plainly so for ground (c), and in the view I take whether natural justice had to be afforded in exercising the statutory power is relevant to determining grounds (a) and (b). Natural justice in exercising the statutory power was not argued before the trial judge, although her Honour observed (at [165(c)]) that she would have held that there was an obligation to afford natural justice. Tobias AJA has refrained from any final view in the absence of full argument, but the matter was squarely raised and addressed in submissions and is part of my determination of all three grounds. Accordingly, I first deal with it.

[3]

Section 79 and natural justice 5An exclusion order precludes the person to whom it is given from partaking of the only legal casino gambling in the State, and where the exclusion order was given at the direction of the Commissioner of Police (s 81(1)) from partaking of casino gambling in other States and Territories (s 81(8), (9)). The person is exposed to a criminal penalty (s 84(1)). The respondents implicitly accepted that a decision to give an exclusion order affected rights and interests so as to require, subject to displacement, observance of the rules of natural justice. I will proceed on that basis, but it is not irrelevant in considering displacement that the occasion for effect on rights and interests is a person's participation in a voluntary and essentially recreational activity; moreover, one which (as the Act makes clear, eg. ss 4A and the extensive powers of the Authority in Pt 3) is closely controlled in the public interest. 6A requirement to observe the rules of natural justice may be displaced by statute, but the displacement must be express or by necessary implication: eg Kioa v West (1985) 159 CLR 550 at 584 per Mason J ("clear manifestation of a contrary intention"); Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ and Deane and McHugh JJ ("excluded by plain words of necessary intendment"); re Minister for Immigration and Cultural Affairs, ex parte Miah [2001] HCA 57; (2001) 206 CLR 57 at [126] per McHugh J ("clearly excluded"). There can be exclusion by implication, but an intention on the part of the legislature to exclude the rules of natural justice is not to be assumed or spelled out from "indirect references, uncertain inferences or equivocal considerations": Commissioner of Police v Tanos (1958) 98 CLR 383 at 396 per Dixon CJ and Webb J. It is a question of construction of the statute. 7A number of matters count against observance of the rules of natural justice in giving an exclusion order. 8First, s 79 extends to, indeed directly contemplates, giving a verbal (meaning oral) exclusion order when a person presents himself or herself at an entrance to the casino or is in the casino. An exclusion order may be given by the person for the time being in charge of the casino (s 79(1)), also indicating an ad hoc occasion. If requested, the exclusion order must be put in writing and is suspended while that is done (s 79(2)), but if the exclusion order is put in writing notice of it must be given to the Authority (s 79(4)). The exigencies of giving an exclusion order on an ad hoc basis, for example if the person is inebriated or disorderly, suggest that even procedures adapted to the circumstances in accordance with the flexibility of observing the rules of natural justice would not be realistic. 9Secondly, the casino operator must give an exclusion order if directed by the Commissioner of Police (s 81(1)), including in anticipation of a person entering the casino (s 81(2)). The Commissioner of Police may himself or herself be giving the direction simply because an exclusion order has been directed and made in another State or Territory (s 81A). There is a comprehensive exclusion of challenge to a direction (s 81(7A); although see now Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531), and to the directed exclusion order (s 80(1A)). An exclusion order so given can not be subject to review by the Authority pursuant to s 80 (s 80(1A)). If it had to tell a person to whom the exclusion order was given why it was given, the casino operator could only say that it was directed to give the exclusion order, and the statute is at pains to provide that the person can not do anything about the direction or the exclusion order. While not standing wholly against informing the person and giving an opportunity to be heard, that would be rather hollow. That procedural fairness is not required can readily be seen as part of protecting casino gambling from criminal influences, in the public interest. 10Thirdly, an exclusion order may be given by either the Authority, the casino operator or the person for the time being in charge of the casino (s 79(1)). If given by the Authority, the Authority is not required to observe the rules of natural justice (s 141(4)); compare, for example, the specific provision in s 59(3) for notice of disciplinary action against a licensed casino employee and the opportunity to make submissions. Again there is a comprehensive exclusion of challenge to the exclusion order (s 80)1A)). It would be most odd if giving an exclusion order was bifurcated so that in the alternative events of an exclusion order given by the casino operator or the person for the time being in charge of the casino the rules of natural justice nonetheless had to be observed; the more so when an exclusion order would often be given by the Authority not in the exigencies of the ad hoc basis abovementioned, and so might be thought more readily to attract procedural fairness. 11Fourthly, where the exclusion order is given by the casino operator or the person for the time being in charge of the casino, the person to whom it is given has a right of review by the Authority (s 80(1)); but in that review the Authority is not required to observe the rules of natural justice (s 141(4)). Again, it would be most odd if the giving of the exclusion order was subject to the rules of natural justice although the review was not. 12In my view, a scheme inconsistent with observance of the rules of natural justice is evident, and clearly so. 13The person to whom an exclusion order is given has very limited rights. If the exclusion order is oral, upon request it must be put in writing. If it is given by the casino operator or the person for the time being in charge of the casino, there can be review by the Authority, but there can be no challenge if it is given by the Authority or at the direction of the Commissioner of Police. Observance of the rules of natural justice is expressly no part of the Authority's action in giving an exclusion order or reviewing the giving of an exclusion order, even though in the case of review the person must have specified the grounds for review (s 80(2)). 14Natural justice when the casino operator or person for the time being in charge of the casino gives an exclusion order is no part of these rights, conformably with the exigencies in which an exclusion order will often be given. The person to whom it is given may have a right of review, but that is all and it does not entail observance of the rules of natural justice in giving the exclusion order. The scheme stems from the need for close control, in the public interest, of legalised casino gambling. 15In my opinion, natural justice did not have to be afforded in exercising the statutory power in s 79.

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Ground (a): Reasonable expectation 16For the reasons given by Tobias AJA, Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 and in particular the reasons of Gibbs J and Murphy J in Forbes v New South Wales Trotting Club Limited (1978) 143 CLR 242 do not establish that any reasonable expectation from the public nature of an activity trumps the right of the owner or occupier of the land on which it takes place to refuse entry to a member of the public without giving a reason. The weight of authority is to the contrary. 17The appellant did not contest that he could be denied entry to the Casino in the exercise of Star City's right as occupier of the Casino. The issue was whether Star City had to afford natural justice in denying entry, and the reasonable expectation in question was not that the appellant would be allowed entry, but that he would be afforded natural justice by being given a reason for denial of entry and an opportunity to be heard. There can not be such a reasonable expectation in the face of s 77 of the Act and the position that (as I consider is the case) an exclusion order could be made pursuant to s 79 without affording natural justice; to which may be added the notices placed by Star City asserting Star City's entitlement to refuse entry or withdraw permission to remain without reason. 18The appellant ultimately accepted that a member of the public presenting at an entrance to the Casino could be refused entry, or after admittance could be required to leave, without Star City giving a reason or an opportunity to be heard in accordance with the rules of natural justice. The acceptance was in my view correct. The appellant submitted that it was otherwise when there was refusal of entry by notice for a term or an indefinite period. However, accepting that there is an entitlement to refuse ad hoc entry without affording natural justice is destructive of a reasonable expectation founded on the availability to the public of the legalised gambling facilities of the Casino, and so is destructive of the necessary reasonable expectation where the refusal of entry is by notice for a term or an indefinite period.

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Ground (b): Public power 19As explained by Tobias AJA, the appellant's reliance on the reasons of Gibbs J in Forbes v New South Wales Trotting Club Limited was misplaced, and the approach of Murphy J in that case did not command acceptance and has not since been applied. The appellant linked his Honour's reference to the exercise of public power to the so-called Datafin principle, from R v Panel on Take-overs and Mergers, ex parte Datafin plc (1987) 1 QB 815, but that case was concerned with judicial review of a decision of a private body exercising "regulatory functions of government" (at [74]), which Star City was not doing. 20The exercise of a public power is not made out simply because Star City's decision to permit or refuse entry affects any member of the public who presents himself or herself, and there is no more the exercise of a public power when Star City has a monopoly of the non-essential service of providing legalised casino gambling. The Act makes legal what would otherwise be illegal, under strict conditions including that there is only one casino operator and there can be entry only by licence of the casino operator . The casino operator is itself subject to general direction by the Authority, and to particular direction from the Commissioner of Police as to giving exclusion orders. The Act does not purport to control the right recognised in s 77, which the appellant accepted remained available to Star City as occupier, and when legalised casino gambling in New South Wales is not an essential activity of life demanding intervention in the public interest, the exercise by Star City of its right as occupier of the Casino is not the exercise of a public power. 21In any event, to the extent that Star City be regarded as exercising a public power, when the exercise of the statutory power in s 79 of the Act is not subject to observance of the rules of natural justice the "public power" exercise of the right as occupier can not be regarded as requiring observance of rules of natural justice.

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Ground (c): Consistency with s 79 exclusion 22For reasons earlier given, the exercise of the statutory power in s 79 of the Act was not limited by observance of the rules of natural justice. For that reason alone, this ground can not be sustained. 23Assuming that Star City was obliged to observe the rules of natural justice in exercising the power to give an exclusion order pursuant to s 79, that does not mean that the exercise of its right as occupier is similarly confined. The right and the statutory power are very different, and even the fact that a refusal of entry is for a term or for an indefinite period does not take it to anything like an exclusion order. An exclusion order has provision for review (s 80). It has penalties upon both the excluded person if the order is contravened (s 84) and upon the casino operator and others if the person is known to have entered and is not removed (s 85). There is an express power to remove (s 85(3)). An exclusion order can have the consequence of exclusion from casinos of other States or Territories (s 81A). The import of an exclusion order is quite different from, and more significant than, that of refusal of entry, even for a term or indefinitely. 24As earlier noted, the appellant accepted that a member of the public presenting at an entrance to the casino could be refused entry, or after admittance could be required to leave, without Star City giving a reason or an opportunity to be heard in accordance with the rules of natural justice. Importation of natural justice from a s 79 exclusion order breaks down if it is not imported in all circumstances of exercise of the right as occupier. In my opinion, even if Star City was obliged to observe the rules of natural justice in exercising the power to give an exclusion order pursuant to s 79, it did not have to exercise its right as occupier consistently with that limitation on the exercise of the statutory power.

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General 25It is not necessary to deal with the respondents' contention, which would itself raise questions of observance of the rules of natural justice which were not fully covered in submissions. They should be left for further consideration if and when they arise in the future. 26It was accepted that Star City could refuse entry in the exercise of its right as occupier, and that its ability to do so was not lost because of the statutory power to give an exclusion order. The appellant's essential argument was that Star City had to observe the rules of natural justice because it had a monopoly over legalised casino gambling in New South Wales. It may be accepted that casino gambling has popularity, but it is not an essential service. Nor is Star City its real controller; the Authority has the real control. Star City has occupation of the land on which the activity is conducted, and both statutory obligations and commercial interests to which it must and may look when doing that which s 77 of the Act requires, namely, licensing entry upon the land. There is no compelling occasion to require that, when it permits or refuses to permit entry, it give reasons for and a hearing concerning a refusal of entry, nor on the construction of the Act is it required to do so. 27I agree with the orders proposed by Tobias AJA. 28YOUNG JA : I agree with Tobias AJA, but would wish to make two sets of comments. 29First, I agree with Tobias AJA that we should not apply the approach of Murphy J in Forbes v NSW Trotting Club Ltd [1979] HCA 27; 143 CLR 242, 274-5. This is for three reasons. First, Cowell v Rosehill Race Course Co Ltd [1937] HCA 17; 56 CLR 605, which Murphy J considered was wrongly decided, is binding on us. Secondly, the reason his Honour gave for distinguishing that case, namely that Cowell involved removal from one race meeting, whereas Forbes involved exclusion from all meetings, does not, with respect, appear to me to be sufficient. Thirdly, I do not consider that the fact that in Cowell Cowell bought a ticket to the race course, whereas in the present case there is no ticket, is a reason for distinguishing Cowell . 30The second set of comments involves the supposed doctrine of prime necessity. In Vector Ltd v Transpowers New Zealand Ltd [1999] 3 NZLR 646, 666 [51], Richardson P, a member of a five judge Court of Appeal, said that the doctrine embodied the principle: "that monopoly suppliers of essential services must charge no more than a reasonable price". 31In the Vector case the Court said, however, that the principle was best viewed as a backstop common law remedy applied in the absence of other remedies where there was no contra-indications as to its use and could be, as it was in the Vector case, precluded by specific provision in legislation. The case has been followed on a number of occasions in New Zealand, some of which were cited by Tobias AJA. 32In Pacifica Shipping Ltd v Centreport Ltd [2003] 1 NZLR 433, Tipping J, giving the judgment of the New Zealand Court of Appeal, said that the principle did not oblige a supplier to accept any offer that could be characterised as reasonable, the onus was on the person seeking to invoke the principle to show that the supplier is seeking to charge more than a reasonable sum. 33It seems to me that, whilst there are no Australian cases on the principle that I have been able to find, the authority of the Privy Council in Minister of Justice for the Dominion of Canada v City of Levis [1919] AC 505 is probably sufficient to say that there is such a principle in Australian law. I must say that the principle has a very limited operation and that is probably why there are no reported examples of it. It is confined to cases where a statute confers a virtual monopoly on a corporation or individual with respect to an essential commodity or service and the statute does not make provision with respect to the pricing of that commodity or service. 34The principle applies in cases of water supply ( Minister of Justice case), electricity ( Vector ) and where traders are compelled to use a particular port or warehouse ( Allnutt ). I agree with Richardson P who said in Vector at [49]: "What constitutes a prime necessity will change over time." 35I agree with Tobias AJA that a casino is not a prime necessity within the doctrine, assuming that it does apply in Australia. 36I have also read in draft Giles JA's reasons and agree with them. 37TOBIAS AJA : The first respondent, Star City Pty Limited (Star City) is the holder of the licence for, and operator of, the Star City Casino (the Casino) located at Pyrmont in Sydney. The second respondent, Sydney Harbour Casino Properties Pty Limited (Casino Properties) is the lessee of the whole of the Star City Casino premises (the casino complex) under a lease from the Casino Liquor and Gaming Authority (the Authority), the registered proprietor of the site on which the casino complex is constructed and in part of which the Casino is located. The Authority is constituted under the Casino, Liquor and Gaming Control Act 2007 (NSW) (the Authority Act). 38The appellant, Andrew Shane Hinkley (Mr Hinkley), was a regular gambler at the Casino from September 2004 to April 2010. By letter dated 10 September 2010 (the Notice), the General Counsel of Star City and Casino Properties (together the respondents) wrote on their behalf to Mr Hinkley giving him notice that any express or implied licence he may have had to enter or remain upon any part of the casino complex was thereby withdrawn. 39By summons filed in the Equity Division of the Supreme Court on 11 October 2010, to which Star City and Casino Properties were joined as defendants, Mr Hinkley sought declarations that the decision of the respondents to issue the Notice denied him natural justice or procedural fairness and that the decision of Star City and/or Casino Properties to issue the Notice was invalid, ultra vires and of no effect. Other consequential orders were also sought. 40The summons was heard by Ward J on 21 October and 26 November 2010. Her Honour delivered judgment on 2 December 2010 rejecting Mr Hinkley's claim that he was entitled to natural justice or procedural fairness before the Notice was issued. She therefore ordered that his summons be dismissed with costs: Hinkley v Star City Pty Limited [2010] NSWSC 1389. On 24 February 2011, Mr Hinkley filed a summons in this Court seeking leave to appeal from her Honour's orders. The application for leave and the substantive appeal have been heard concurrently.

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Leave to appeal should be granted 41As will appear, Mr Hinkley's appeal raises some important issues with respect to the rights, if any, of a member of the public to enter and/or remain within private premises which the owner or occupier represents as being open to the public for the purpose of advancing its commercial interests. The other side of that coin involves the power, if any, of that owner or occupier to exclude a member of the public from its premises without first affording that person procedural fairness. 42The foregoing issues are given particular significance in the present case where the relevant occupier has a monopolistic right to operate the only casino in the State. In these circumstances the matters so raised justify the grant of leave to appeal.

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The relevant statutory provisions 43The outcome of the appeal depends on certain provisions of the Casino Control Act 1992 (NSW) (the Act). It contains in s 3(1) a number of definitions relevant to the issues in the appeal which are as follows: " Authority means the Casino, Liquor and Gaming Control Authority constituted under the Casino, Liquor and Gaming Control Authority Act 2007 casino means premises, or part of premises, defined as a casino for the time being under section 19 casino licence means a licence in force under Part 2 to operate a casino casino operator means a person who is the holder of a casino licence exclusion order means a written order under section 79 prohibiting a person from entering, or remaining in, a casino game means a game of chance or a game that is partly a game of chance and partly a game requiring skill gaming means the playing of any game gaming equipment means any device or thing (including chips) used, or capable of being used, for or in connection with gaming inspector means an inspector within the meaning of the Casino, Liquor and Gaming Control Authority Act 2007 operations , in relation to a casino, means: (a) the conduct of gaming in the casino, (b) the management and supervision of the conduct of gaming in the casino, (c) money counting in, and in relation to, the casino, (d) accounting procedures in, and in relation to, the casino, (e) the use of storage areas in the casino, and (f) other matters affecting, or arising out of, activities in the casino." 44Section 3(2)(a) of the Act provides, relevantly, that a reference to a function includes a reference to a power, authority and duty. 45Section 4(1) of the Act renders lawful the conduct and playing of a game and the use of gaming equipment provided in a casino by or on behalf of the casino operator being the holder of the licence for that casino under the Act. Section 4(2) provides, amongst other things, that the Unlawful Gaming Act 1998 (NSW) does not apply to gaming in a casino. 46Section 4A sets out the " Primary objects of the Act ". It provides: "(1) Among the primary objects of this Act are: (a) ensuring that the management and operation of a casino remain free from criminal influence or exploitation, and (b) ensuring that gaming in a casino is conducted honestly, and (c) containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families. (2) All persons having functions under this Act are required to have due regard to the objects referred to in subsection (1) when exercising those functions." 47Part 2 of the Act is headed " Licensing of casino ". Section 6 provides that only one casino licence may be in force under the Act at any particular time. Accordingly, the holder of a casino licence has a monopoly on the lawful conduct and playing of a game (as defined) to which, but for s 4, the Unlawful Gambling Act 1998 would apply. This factor was heavily relied upon by Mr Hinkley in his submissions on the appeal. 48Section 10 provides for the Authority to publicly invite applications for a casino licence and s 18 provides that any such application may be granted or declined by the Authority and, if granted, will be subject to such conditions as the Authority thinks fit. Section 19 provides that the boundaries of a casino are to be defined in the casino licence subject to their being redefined by the Authority. Section 20 provides that a casino licence remains in force for the period for which it is granted as specified therein. Section 21 states that a casino licence confers no right of property upon the holder and is incapable of being assigned or otherwise encumbered. Section 22 empowers the Authority, subject to giving the licensee at least 14 days to make submissions, to amend the conditions of the licence by substituting, varying, revoking or adding conditions thereto. 49Part 3 of the Act is headed " Supervision and control of casino operators" . Section 29 is of significance and I set it out in full: "29 Directions to operator (1) The Authority may give a casino operator a written direction that relates to the conduct, supervision or control of operations in the casino. (2) It is a condition of a casino licence that the casino operator must comply with such a direction as soon as it takes effect. (3) The direction takes effect when the direction is given to the casino operator or on a later date specified in the direction. (4) The power conferred by this section includes a power to give a direction to a casino operator to adopt, vary, cease or refrain from any practice in respect of the conduct of casino operations. (5) A direction under this section is not to be inconsistent with this Act or the conditions of the casino licence." 50Without referring to the particular provisions, it is appropriate to observe that the Act is replete with prescriptive provisions as to the conduct and operation of gaming in a casino by the casino operator. Furthermore, it would be fair to say that although the casino operator conducts and manages the casino and carries out "operations" (as defined) in relation to it, the actual control of the casino and its operations is vested solely in the Authority to the point where there is little a casino operator can do without the prior approval of the Authority. An example of this is contained in Part 4 of the Act relating to the licensing of casino employees. It provides for the licensing by the Authority, subject to such conditions as it may impose, of a person referred to as a " special employee ", who is defined in s 43(1) to mean a person who: "a) is employed or working in a casino in a managerial capacity or who is authorised to make decisions, involving the exercise of his or her discretion, that regulate operations in a casino, or (b) is employed or working in a casino in any capacity relating to any of the following activities: · the conduct of gaming, · the movement of money or chips about the casino, · the exchange of money or chips to patrons in the casino, · the counting of money or chips in the casino, · the operation, maintenance, construction or repair of gaming equipment approved by the Authority under section 68, · the supervision of any of the above activities, · casino security, · any other activity relating to operations in the casino that is prescribed for the purposes of this definition." 51Part 5 is headed " Casino operations ". By s 65(1), it is a condition of a casino licence that gaming is not to be conducted in the casino unless the facilities provided in relation to the conduct and monitoring of operations in the casino are in accordance with plans et cetera that are, for the time being, approved by the Authority under that section. Section 66 provides for the approval by the Authority of the games that may be played in a casino as well as the rules for those games. Section 67 empowers the Authority to give directions in writing to a casino operator relating to the particular games that are or are not to be available to be played in the casino as well as the minimum and maximum number of any particular game that is to be available to be so played. Section 70(1) provides that it is a condition of a casino licence that the provisions that then follow must be complied with in the casino and that the casino operator is to be considered to have contravened that condition if they are not complied with. There then follows some nine matters that relate to the conduct of gaming. 52Section 71(1) provides that it is a condition of a casino licence that the casino is to be open to the public for gaming in accordance with the Act on such days and at such times as are for the time being directed by the Authority by order in writing served on the casino operator. However, that provision must be read subject to s 77 (the terms of which are of critical significance to the outcome of this appeal) and which I set out in full: " Right of entry to casino (1) A person enters and remains in a casino only by licence of the casino operator, except as provided by this section and section 78. (2) An inspector may enter, and remain in, a casino, or any part of a casino, pursuant to the functions conferred or imposed on an inspector by this Act." (emphasis added) 53Section 78 is headed " Police powers of entry to casino ". Relevantly, s 78(2) provides as follows: "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." 54Also of significance with respect to the submissions advanced on the appeal are ss 79 and 80 which, relevantly, are in the following terms: " 79 Exclusion of persons from casino (1) The Authority or the casino operator or the person for the time being in charge of the casino may, by order given to a person verbally or in writing, prohibit the person from entering or remaining in a casino. (2) If a person is given such a verbal order and the person requires the order to be given in writing, the verbal order is suspended while the order is put in writing (but only if the person remains available in the casino to be given the written order). (3) ... (4) It is a condition of a casino licence that the casino operator must, as soon as practicable after a written order is given to a person under this section by the operator or by the person for the time being in charge of the casino, cause notice of the order to be given to the Authority. (4A) It is a condition of a casino licence that the casino operator must, as soon as practicable after a written order is given to a person under this section by the operator following a direction given under section 81, cause notice of the order to be given to the Commissioner of Police. (5) This section does not authorise the exclusion from a casino of any person acting in the person's capacity as an inspector or other authorised person, or as a police officer. 80 Review of exclusion order (1) A person who is given an exclusion order may apply to the Authority within 28 days after the order is given for a review of the order unless the order was given by the Authority or at the direction of the Commissioner of Police. (1A) An exclusion order given by the Authority, or at the direction of the Commissioner of Police, may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court or tribunal in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus. (2) An application for review must be made in writing and must specify the grounds on which it is made. (3) The Authority may make such inquiries as it thinks fit into the question of whether or not the exclusion order should be overruled. (4) ... (5) On consideration of the grounds specified in the application for review and the results of its inquiries, the Authority may overrule the exclusion order or allow it to stand and is to communicate its decision to the applicant in writing. (5A) The regulations may make provision for or with respect to matters to be taken into consideration by the Authority in making its decision with respect to an application for review of an exclusion order. (6) If the decision of the Authority is to overrule the exclusion order, the decision operates to revoke the order but does not prejudice the right of a casino operator or person for the time being in charge of a casino, acting in good faith, to give a further exclusion order to the person affected. (7) An application for review of an exclusion order does not stay or otherwise affect the operation of the order pending the Authority's decision on the application." 55Section 81 (which was amended in 2010 but in its amended form was accepted as forming part of the Act for present purposes) also bears on the issues in the appeal and relevantly provides as follows: "(1) The Commissioner of Police may direct a casino operator in writing to exclude a person from a casino by giving the person or causing the person to be given an exclusion order, and it is a condition of the casino licence that the operator must comply with the direction. (2) The Commissioner may give such a direction in anticipation of the person entering a casino. ... (7A) A direction given under this section may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court or tribunal in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus. (8) The Commissioner of Police is to: (a) notify the appropriate authority in each State or Territory of the making of an exclusion order following a direction given under subsection (1) and the revocation of any such order, and (b) provide the appropriate authorities with the name of the person subject to the exclusion order and, where practicable, a photograph of that person. (9) In this section: appropriate authority means: (a) in relation to the Australian Capital Territory-the Commissioner of the Australian Federal Police, or (b) in relation to a State or Territory (other than the Australian Capital Territory)-an authority exercising, in relation to the police force of that State or Territory, functions corresponding to those of the Commissioner of Police in relation to the NSW Police Force." 56Section 81A (which was also inserted into the Act in 2010 and was again accepted as relevantly forming part of the Act for present purposes) provides: " 81A Direction to be made in relation to exclusion orders in other States and Territories (1) The Commissioner of Police is to give a direction under section 81 (1) in relation to a person if the Commissioner becomes aware that the person is subject to exclusion from another casino following the giving of a similar direction under a corresponding law. (2) The direction is to be made as soon as practicable after the Commissioner becomes aware that the similar direction under a corresponding law has been given. (3) The Commissioner is to advise the Authority of any direction given in accordance with this section as soon as practicable. (4) A direction given in accordance with this section in relation to a person cannot be revoked under section 82 while the person remains subject to exclusion from another casino following the giving of a similar direction under a corresponding law. (5) In this section: another casino means premises, or part of premises, defined as a casino for the time being under an Act of another State, or a Territory, corresponding to this Act. corresponding law means a provision of an Act of another State, or a Territory, corresponding to section 81." 57I interpolate here that the effect of s 81(8) and (9) when combined with s 81A is that an exclusion order made against a person in respect of the Casino also acts as an exclusion order in respect of casinos in other States and Territories and vice versa where those other States and Territories have casino legislation containing a provision corresponding to s 81. Accordingly, the making of an exclusion order under s 79(1) has ramifications outside New South Wales in that it has the effect not only of excluding a person from the Casino but also from the casinos of other States and Territories. 58Section 82 relates to the duration and revocation of exclusion orders. Section 82(1) provides that an exclusion order remains in force in respect of a person unless and until it is revoked by the person who gave the order. By sub-s (2) where such an order is given by a person for the time being in charge of a casino, it may be revoked by any other person who is for the time being in charge of the casino or by the casino operator. However, s 82(3) provides that an exclusion order given at the direction of the Commissioner of Police may not be revoked except with the Commissioner's written approval. 59Section 84 is headed " Excluded person not to enter casino ". It states the consequences where a person enters or remains in a casino contrary to an exclusion order. It relevantly provides as follows: "(1) A person...the subject of an exclusion order must not enter or remain in a casino to which the order relates. Maximum penalty: 50 penalty units [one penalty unit = $110.00] or imprisonment for 12 months, or both." 60By s 85, the person for the time being in charge of a casino, an agent of the casino operator or a casino employee must, as soon as practicable after it becomes known to the person that a person the subject of an exclusion order is in the casino, notify an inspector and then remove the person or cause the person to be removed from the casino. Failure to do so attracts a maximum penalty of 20 penalty units. Section 85(3) then provides as follows: "(3) It is lawful for a person to whom this section applies, using no more force than is reasonable in the circumstances: (a) to prevent a person the subject of an exclusion order from entering the casino, and (b) to remove such a person from the casino or cause such a person to be removed from the casino." 61Section 90(1) provides that for the purposes of the Environmental Planning and Assessment Act 1979, a casino is to be considered to be a place of public entertainment and the conduct of operations in a casino is to be considered to be use as a place of public entertainment. It is apparent from the terms of s 90(1) that the categorisation of a casino as a place of public entertainment is solely for planning purposes. 62Part 8 of the Act relates to the payment of casino duty. Section 114(1) provides that a casino duty is to be paid to the Authority in respect of each casino licence and, by sub-s (2), that that duty is to be as agreed from time to time by the Treasurer and the casino operator concerned or, in the absence of agreement, as determined by the Treasurer from time to time. The duty paid to the Authority is to be paid into the Consolidated Fund. 63Part 10 of the Act is headed " Additional functions of Authority and administrative matters ". Section 140 sets out the objects of the Authority under the Act in the following terms: "(a) ensuring that the management and operation of the casino remains free from criminal influence or exploitation, and (b) ensuring that gaming in the casino is conducted honestly, and (c) (Repealed) (d) containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families." 64Section 141(1) provides that the Authority has such functions as are necessary or convenient to enable it to achieve its objects under the Act. Sub-section (2) then sets out some specific functions including keeping under constant review all matters connected with casinos and the activities of casino operators. Sub-section (4) is of importance and is in the following terms: "(4) In the exercise of its functions under this Act, the Authority is not required to observe the rules of natural justice (except to the extent that it is specifically required to do so by this Act)."

[10]

The factual background 65The site upon which the casino complex is located is owned by the Authority which leased the whole of the Casino complex to Casino Properties. The Casino is located within the boundary of the overall casino complex and is accessible only via what I shall refer to as the non-casino premises. Thus to enter the Casino, a patron must first pass through some part of the land that is leased to Casino Properties but is not the subject of the casino licence and, therefore, is not an area governed by the provisions of the Act. 66By an Occupational Licence Agreement dated 14 December 1994, Casino Properties granted a non-exclusive licence to Star City to occupy, in effect, the casino complex. Clause 2.1 of the licence agreement made it clear that it conferred a contractual right only and that Star City obtained no proprietary estate or interest in the casino complex (being the premises the subject of the licence) or any part thereof. 67The evidence established that there were 17 entrances to the Casino from the surrounding non-casino premises. An employee of Star City is stationed at each of those entrances for the purpose of vetting those who seek to enter. At every entrance to the Casino there is a large sign which, relevantly, states the following: "CASINO CONTROL ACT 1992 ... RESTRICTED ACCESS ... Star City has the right to refuse entry to any person, including those considered to be improperly dressed or behaving in an inappropriate manner. Star City reserves the right to withdraw any person's permission to remain in the premises without reason and to inspect any bag at any time." 68By letter dated 27 April 2010, the Security Manager of the Star City Security Department wrote to Mr Hinkley enclosing an exclusion order that had been issued to him by Star City pursuant to s 79(1) of the Act and dated 23 April 2010 (the Order). The letter stated that the Order was issued in respect of conduct of Mr Hinkley relating to "illegal and undesirable activity" on 23 April 2010. The letter also stated that the effect of the Order was that from 23 April 2010, Mr Hinkley was not permitted to enter any gaming areas of the Star City Casino and that the Order would remain in force until revoked. The letter referred to the right of review under s 80. 69The Order itself relevantly stated: "Pursuant to section 79 of the Act you are prohibited from entering or remaining on the premises of Star City (The Casino) while this Order is in force. This Order shall remain in force from Friday, 23 April 2010 until such time it is revoked by the person who gave this Order." 70The Order also referred to the right of review under s 80 and stated that non-compliance with the Order could result in Mr Hinkley being convicted of a criminal offence. Reference was made to s 84 of the Act which, as recorded at [23] above, provides for a maximum penalty of 50 penalty units (equivalent to $5500) or imprisonment for 12 months, or both. 71By letter dated 18 May 2010, Mr Hinkley's solicitors exercised his right of review to the Authority pursuant to s 80. The attention of the Authority was drawn to the fact that the conduct and allegations referred to in the Order (or more accurately the covering letter of 27 April 2010) had not been brought to Mr Hinkley's attention and it was asserted that the casino operator had not followed due process and had not observed the rules of natural justice. 72By letter dated 29 July 2010, the Director, Casino and Authority Operations, advised that the Authority had decided not to revoke the Order. Mr Hinkley then requested that Star City revoke the Order, which it did by letter dated 23 September 2010. That letter noted that the exercise of the statutory power of revocation was independent of any exercise by Star City and/or Casino Proprieties of their proprietary right to withdraw any licence that Mr Hinkley might have to enter or remain upon the casino complex (including the Casino). It also stated that the letter was not an invitation for Mr Hinkley to enter the complex. 73However prior to the revocation of the Order on 23 September 2010, Star City and Casino Properties had issued the Notice on 10 September 2010 in the form of a letter to Mr Hinkley's solicitor. It was in the following terms: "Ref: Withdrawal of licence to enter or remain upon Star City premises Star City Pty Ltd and Sydney Harbour Casino Properties Pty Ltd (together 'Star City') hereby give notice that any express or implied licence you may have to enter or remain upon any part of the Star City premises, located at 80 Pyrmont Street, Pyrmont NSW 2009, is hereby withdrawn. You must not enter the Star City premises. This withdrawal of licence will be effective unless and until it is expressly reinstated in writing. Any advertising or promotional material received by you should not be taken to be a reinstatement of the licence or an express or implied invitation to you to enter the Star City premises. This withdrawal of licence is an exercise of the proprietary rights of Star City. It is not an exercise of the statutory power of Star City Pty Ltd to make an exclusion order under s 70 of the Casino Control Act 1992 (NSW). This withdrawal of licence is independent of any exclusion order and will remain effective irrespective of whether Exclusion Order No 7215 or any other exclusion order which may be issued from time to time is revoked, quashed or otherwise ceases to be of effect. If you attempt to enter the Star City premises, you will be trespassing. Star City may use reasonable force to prevent you from entering or to remove you from the Star City premises. Star City may also contact the Police if you attempt to enter the Star City premises." 74The Authority's solicitors sent a copy of the letter to Mr Hinkley's solicitors. Its covering letter explained that the withdrawal of the licence was an exercise by Star City and Casino Properties of their proprietary rights and was independent of Star City's statutory power to make an exclusion order under s 79 of the Act. Reference was made to s 77(1) of the Act and to the decision of the High Court in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 506-507, 511 as authority for the proposition that Star City and Casino Properties were not obliged to observe the rules of natural justice in exercising their respective proprietary right to revoke any express or implied licence Mr Hinkley may have had to enter or remain upon the casino complex. It was that issue that was in contest before the primary judge.

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The statement of the issues by, and the findings of, the primary judge 75One of the issues contested before her Honour was whether Casino Properties had the right to exclude Mr Hinkley from the non-casino premises. The non-casino premises, it was accepted, was private property in respect of which the Act had no application as it was outside the boundaries of the Casino as determined by the Authority under s 19 of the Act. Ultimately, it was unnecessary for her Honour to finally determine that issue as she rejected Mr Hinkley's submission that Star City was obliged to afford him procedural fairness or natural justice before it excluded him from the Casino. However, on the assumption that Star City was not entitled to so exclude Mr Hinkley without first affording him procedural fairness, her Honour expressed the tentative view that it was not open to Casino Properties to exclude Mr Hinkley from the non-casino premises, the traversing of which was necessary for him to gain access to the Casino. Casino Properties challenged that tentative finding and, by leave, filed a notice of contention in which it was contended that her Honour should have held that, as lessee in possession of the non-casino premises, Casino Properties was entitled to exclude Mr Hinkley from those premises and had effectively done so. 76As appears from the primary judge's reasons, the legal basis relied upon by Mr Hinkley in seeking to invalidate the Notice underwent some refinement as the case proceeded from the interlocutory hearing to the final hearing. As she noted at [13] of those reasons, the principal basis upon which it was initially contended by Mr Hinkley that the respondents had an obligation to afford him procedural fairness was founded on the respective statements of Gibbs J and Murphy J in Forbes v New South Wales Trotting Club Limited [1979] HCA 27; (1979) 143 CLR 242. Her Honour records that it was contended that by reason of the public nature of the facility (the Casino) operated by Star City within the casino complex and its statutory right to make an exclusion order under s 79 of the Act, Star City was required to exercise its proprietary right to exclude persons from the Casino in a manner consistent with the exercise of its statutory right of exclusion under s 79 ( Forbes at 269 per Gibbs J). In addition, or alternatively, Star City's 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 before it is exercised ( Forbes at 274-275 per Murphy J). 77It was further submitted that Star City, having purported to exercise its statutory right to make an exclusion order under s 79 of the Act, could not then seek to circumvent its obligation to provide procedural fairness in the making of that order by giving that act another name. This last-mentioned submission was based upon the proposition that in exercising its power to make the Order pursuant to s 79(1) of the Act, Star City as the casino operator was bound to afford Mr Hinkley procedural fairness, notwithstanding that under the same provision the Authority could issue an identical exclusion order without having to provide procedural fairness: see s 141(4). 78The primary judge then noted various alternative bases for the contention that Star City, and for that matter Casino Properties, were bound to observe the rules of natural justice. However, as those alternative bases are no longer pressed, it is unnecessary to refer to them. When the matter came to a final hearing, Mr Hinkley's principal claim to be entitled to natural justice was, according to her Honour, advanced on a different basis, namely, that Star City had no common law right to grant a licence to enter the Casino (and thus no common law right to exclude patrons from those premises). It was contended that any common law rights it may formerly have had were abrogated by ss 77 and 79 of the Act. In particular, it was submitted that s 77 operated to codify the right of Star City as the casino operator to regulate entry to the Casino. It was contended that the effect of s 77 was that the only entitlement to enter those premises was a statutory entitlement so that any licence granted by the casino operator pursuant to s 77 was a statutory licence which could not be revoked without first providing procedural fairness. Ultimately the primary judge rejected this submission and that finding has not been challenged. 79Accordingly, her Honour stated the issues for her determination at [30] ff of her reasons. The first question for determination was whether Star City has a separate independent common law right to grant and/or refuse access to the Casino; in other words, whether Mr Hinkley, when entering the Casino, did so pursuant to a common law licence or a statutory licence. As I have indicated, her Honour determined that it was pursuant to a common law licence and that conclusion has not been challenged. 80The second issue which constituted the central question for determination was whether, even if Mr Hinkley entered the Casino pursuant to a common law licence granted by Star City, it was required to afford him procedural fairness before withdrawing that licence. 81Ultimately, her Honour recorded at [34] of her reasons that in final addresses, Mr Hinkley reformulated the issues for determination into the following three propositions: first, whether the right to enter the casino premises is a statutory right under s 77 of the Act; secondly, if it is not, whether Star City is nevertheless obliged to exercise its common law proprietary right (which, on that hypothesis, it was conceded it would have) to grant a licence to enter the Casino or withdraw or decide not to grant that licence consistently with the manner in which it would be obliged to exercise its power of exclusion under s 79 of the Act (applying the reasoning of Murphy J in Forbes ); and, thirdly, if Mr Hinkley is correct on either of those points, whether Casino Properties could nevertheless bring an action in trespass against Mr Hinkley (as an invitee of Star City) so as to legally prevent him from having access to the Casino from the non-casino premises. It is this third issue which, as I have indicated, her Honour only determined tentatively against Casino Properties and which is the subject of its amended notice of contention. 82Her Honour then proceeded to summarise her findings with respect to the foregoing issues at [37] of her reasons: (a) The right to enter the Casino is not a statutory right under s 77 of the Act but a licence granted at common law, the limitation on the nature of that right having been given statutory recognition, but not statutory force, by s 77 of the Act; (b) Star City is not obliged in the exercise of its common law proprietary right (to withdraw a patron's licence to enter the Casino or not to grant such a licence) to afford natural justice or, if there be any relevant difference, to act consistently with the manner in which it would be obliged to exercise its power to make an exclusion order under s 79 of the Act; and (c) If Star City has not legally terminated a licence granted by it to permit Mr Hinkley to enter the Casino or has not lawfully withdrawn in advance any licence for him to do so, then Casino Properties would not be able to refuse entry or exclude from the non-casino premises a person exercising a licence to enter the Casino granted by its own licensee, Star City, unless the person was exercising the licence for purposes not reasonable and incidental to the right of Star City to use the Casino in accordance with its licence. 83The primary judge then proceeded to set out her reasons for coming to these conclusions of which only the second and third are presently relevant. In this respect her Honour's finding on the third issue was expressed by her to be tentative. 84Her Honour agreed with the respondents' submission that each time a member of the public such as Mr Hinkley visits the Casino and is permitted entry, there is the grant of a new common law licence which is revocable after the licensee has entered those premises. On this basis, it was submitted by the respondents that as Mr Hinkley never had any freestanding or ongoing licence to enter or remain on the casino premises, there could be no legitimate expectation on his part that he would, on any occasion, be permitted entry in light of the express reservation of the casino operator's right to refuse entry or to ask a member of the public to leave the casino premises in accordance with the terms of entry located at each entry point. The relevance of the existence of such a legitimate expectation underpinned Mr Hinkley's submission that he could only be denied that expectation if he was first accorded procedural fairness or natural justice. 85The respondent submitted that, other than in respect of the persons to whom a statutory licence is granted by ss 77(2) and 78(2) (where there is no suggestion that the licence is one granted by the casino operator), there is nothing in the legislation to warrant the conclusion that Star City does not retain the common law right as an occupier (with acknowledged actual possession of the Casino) to refuse to grant (or to revoke once granted) a licence to enter those premises. At [97] and [111] of her reasons, her Honour accepted this submission. 86The primary judge then addressed the question as to whether, when exercising the common law right to refuse to grant or to revoke, if granted, a licence to enter the Casino, Star City was required to afford natural justice. In discussing this issue, her Honour referred in some detail to the decisions of the High Court in Heatley v Tasmanian Racing and Gaming Commission and Forbes v New South Wales Trotting Club Limited . Both before the primary judge and on appeal, Mr Hinkley relied heavily upon what Aickin J said in Heatley and upon what Gibbs J and Murphy J respectively said in Forbes . It is therefore convenient at this point to analyse those two authorities, drawing on what her Honour said about them with the addition of some observations of my own.

[12]

(a) Heatley v Tasmanian Racing and Gaming Commission 87In Heatley, the High Court was required to consider the exercise by the Tasmanian Racing and Gaming Commission (the Commission) of its power under s 39(3) of the Racing and Gaming Act 1952 (Tas) to give a written notice requiring a person to refrain from entering any racecourse or racecourses specified in the notice or from racecourses generally while the notice was in force. Such a notice was issued to Mr Heatley. The Commission was not the owner or occupier of any of those racecourses the subject of the notice. The High Court held that the Commission was required to observe the rules of natural justice in exercising its statutory power to issue what was referred to as a warning-off notice. One immediate and obvious difference between that case and the present is that whereas the Commission was not the owner or occupier of any of the racecourses to which the notice applied, Star City was the occupier of the Casino in respect of which it issued the Notice. 88The leading judgment of the majority was delivered by Aickin J, with whose reasons Stephen J agreed. At 506, his Honour said: "Since the decision in Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 there has been no doubt that a member of the public, admitted to such places as theatres or racecourses, has only a revocable licence from the owner or lessee of the premises, and that revocation, even in breach of contract, is effective so that such person may be required to leave the premises. Needless to say the owner of such premises may refuse to admit any person without assigning any reason. Members of clubs which own or occupy premises are in a special position." (Emphasis added) 89At 507-508, his Honour, in effect, contrasted the common law situation of an owner-occupier of a racecourse to the position of the Commission under s 39. He said: "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 announcements 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, ie 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. The concept of a 'reasonable expectation' of some entitlement, ie an expectation that some form of right or liberty will be available, or will not be taken away without an opportunity for the subject to put his case to the relevant governmental authority armed with the compulsory power in question is a relatively recent development. It was first expressed by Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 ; [1969] 1 All ER 904. In that case both Lord Denning MR and Widgery LJ were disposed to regard a 'legitimate expectation' as sufficient to confirm an entitlement to treatment in accordance with the principles of natural justice by the relevant governmental authority." (Emphasis added) 90After noting that the case before him was not concerned with an expectation that a relevant government authority will exercise its statutory power in a particular manner, his Honour continued (at 509) in the following terms: "What we are concerned with is an expectation on the part of members of the public that they will continue to receive the customary permission to go onto racecourses upon the payment of a stated fee to the racecourse owner. Members of the public do, it seems to me, expect that if they present themselves at the gate of a football ground or a racecourse or a dog-racing course and tender the stated entrance fee that they will be admitted, because generally speaking it is in the interests of the owner or occupier that they should in fact attend the relevant game or meeting, and upon receiving such permission they then have what is properly called a right as against all the world (save the owner) to remain there for the duration of the relevant event. The statutory power which s 39(3) gives the Commission is one which enables the Commission to destroy that right, as well as to destroy the expectation that they will on future occasions be granted the like right in respect of subsequent race meetings." 91Again, at 510, his Honour observed: "I do not think that this is a case in which one can properly say that the legislature has in fact so dealt with the manner in which this particular power is to be exercised as to exclude the requirements of natural justice." 92Accordingly, his Honour held (at 516) that fairness required that the person affected should, save in an emergency, be given notice by the Commission of its intention to issue a warning-off notice and of the grounds of that proposed action and should be afforded an opportunity to make representations to the Commission on his behalf which it must consider before taking action. A notice effective for an indefinite period should not be issued without compliance with at least those procedural requirements. 93Mason J (at 494) agreed with the reasons given by Aickin J "...to support the conclusion that the provisions of the Racing and Gaming Act 1952 (Tas) on their true construction do not exclude the requirements of natural justice in their application to the exercise of the power conferred by s 39(3) of the Act and for the further conclusion that these requirements were attracted in the instant case because the applicant as a member of the public had a legitimate expectation that he would be admitted to race meetings on racecourses in Tasmania on payment of the stipulated charge, whatever that might be, an expectation that would be defeated by the issue of a valid notice under the sub-section." 94The other member of the majority, Murphy J, referred to the power of the Commission under s 39(3) and the provisions of s 39(8) which made it an offence for a person served with a warning-off notice to enter a racecourse contrary to the notice and then continued in the following terms (at 495): "The exercise of the power will probably have an adverse effect on the person and his reputation and possibly his livelihood. It will seriously alter his legal position. If he enters a racecourse, he becomes liable to the penalties in s 39(8). He may not lawfully enter a racecourse even if the club or owner of the racecourse wished him to enter and did all it could to confer on him a proprietary right to do so. The strong presumption is that the legislature did not intend to authorize the Commission (in exercising its power of warning-off) to depart from the standards of official behaviour towards individuals which are basic to every civilized society. These standards referred to as natural justice, due process, or the rule of law, require that when such public power is exercised, the person affected should be given an opportunity to be heard before the order is made to show why it should not be made. This involves notice of the proposed order and of the matters alleged against him, and an opportunity to refute or explain or advance reasons against making the order." 95I note the reference by Murphy J to the fact that the Commission, when exercising its power of warning-off, was exercising what he referred to as a " public power " and that before such a power can be exercised, natural justice must be afforded to the person to whom the exercise of the power is intended to be directed. His Honour returned to this question of the exercise of a public power in Forbes to which I now turn.

[13]

(b) Forbes v New South Wales Trotting Club Limited 96As the primary judge observed at [126] of her reasons, Heatley was a case where the body issuing the relevant notice was not the owner or occupier of the premises in question. Forbes concerned the position of an owner (the Club) of two trotting courses which also held powers in relation to the exclusion of patrons from other courses under its control. 97The Club controlled trotting in the State by the consent of the government and all the trotting clubs in the State. It also conducted trotting meetings on two courses that it owned at Harold Park and Menangle. It administered trotting under the Rules of Trotting (the Rules). Rule 28 (r 28) of the Rules empowered the committee of the Club to warn any person off any course that it controlled, including a course in which it had no proprietary interest. 98The Club issued a notice excluding Mr Forbes from admission both to the two paceways it owned and to "any other Course or Courses which may now or in the future be occupied by or come under the control of the New South Wales Trotting Club Ltd" (the notice). Mr Forbes challenged the validity of the notice on the basis that he had not been afforded procedural fairness before it was issued. It was conceded in that case that if there was an obligation to observe the requirements of natural justice, the Club had not done so. It was further conceded by the Club when the matter came before this Court, and not disputed before the High Court, that the Club was required to observe the rules of natural justice when exercising its powers under r 28. 99As the primary judge noted at [130] of her reasons, the question for consideration by the High Court (and prior thereto, this Court) was whether the notice was an attempted (and, if so, admittedly invalid) exercise of the power conferred by r 28. 100In the High Court, Barwick CJ, who dissented, summarised (at 249) the reasoning of the majority (Hutley and Samuels JJA) in this Court and that of Mahoney JA who dissented. The Chief Justice observed that Mahoney JA had held that a contract existed between Mr Forbes and the Club derived from the Rules which exclusively defined the powers of the Club in respect of "warning-off" and which limited, if they did not supplant, the Club's proprietorial rights. Further, Mahoney JA appeared to consider that the Rules conferred on Mr Forbes a right of entry into the Club's paceways and that the Club's resolution was a warning-off under the Rules and void for non-observance of the requirements of natural justice. 101The majority in the High Court comprised Gibbs, Stephen, Murphy and Aickin JJ. Stephen J (at 272) agreed with Aickin J subject to one reservation which related to the precise grounds for rejecting the Club's submission concerning r 28. It was the Club's case that its resolution to issue the notice could be supported as valid at least with respect to the two trotting courses it owned and occupied. Stephen J rejected that submission for the reason that an ineffective exercise of the power to "warn-off" conferred by r 28 could not 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 those two courses. The present was not a case, his Honour said at 273, 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; rather, it was 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. 102In his reasons, Aickin J also noted (and rejected) the argument of the Club that the purpose of the resolution was to exclude Mr Forbes from its own courses and that it should not be construed as an exercise of the power given by r 28 because that power was not effectively exercised for want of compliance with the rules of natural justice. The problem, his Honour noted at 277-278, arises because the Club has two different capacities, each carrying its own powers and authorities. He then observed (at 278): "As a landowner it has the ordinary rights and powers of the owner of land, including the power to refuse admission to the land to such persons as it may choose, and to remove persons therefrom who have no interest in the land, notwithstanding that they may be there pursuant to permission granted under a binding contract. In its capacity as the controlling body for trotting in New South Wales it has the powers and authorities given to it under the Rules of Trotting which include the power to warn off which carries consequences far wider than the confines of its own land and the courses which it operates thereon." 103Aickin J then held that the Club's resolution to issue the notice did not merely exclude Mr Forbes from the two named paceways it operated but also from those paceways "which may now or in the future be occupied by or under the control of the" Club. His Honour rejected the decision of the trial judge who treated the resolution as being supportable as an exercise of the Club's proprietary rights in relation to its own land and accordingly treated the resolution as valid. He referred (at 280) to the view of Samuels JA that although the resolution was an exercise of the power with respect to warning-off which he treated as void, Mr Forbes was not entitled to declaratory relief as the Club's proprietary rights remained unimpaired so that it could continue to exclude Mr Forbes from the two paceways that it owned and occupied. 104On the other hand, his Honour noted (at 281) that Mahoney JA took the view that the existence of the power to warn off under the Rules operated to exclude any other right, as those rules were inconsistent with the retention in the controlling body of a power otherwise to prohibit entry to the courses. Aickin J then continued: "It is true that the respondent club, as the owner of the land on which two paceways are constructed, may, in the exercise of the ordinary rights of a landowner, refuse permission to any person who may wish to enter and may terminate the permission granted to any person who has entered, even pursuant to the terms of a contract, so long as that contract does not confer upon him an interest in the land. The exercise of such a right or power would have the effect of excluding the appellant from the two respondent Club's paceways in New South Wales." 105The Club submitted that a new or fresh resolution, which it sought to introduce into evidence in the court below after the hearing had concluded and which purported to exclude Mr Forbes from the two courses the Club owned, was sufficient to protect Mr Forbes from the consequences of the void resolution. In the Club's submission, this would have the consequence that, as a matter of discretion, a declaration of invalidity should be refused. However, his Honour rejected these submissions. He considered that the resolution in purported exercise of its proprietary rights was insufficient to provide that protection as a consequence whereof the declaration should be granted. 106At this point I think it can fairly be said that neither Aickin J nor Stephen J said anything in Forbes which was inconsistent with their reasons in Heatley . If anything, their Honours confirmed the difference between first, an owner or occupier of premises (including premises such as racecourses) who is entitled at common law to exercise their proprietary right to refuse entry to those premises or to revoke a licence to enter without affording either reasons or natural justice and, secondly, a body such as the Commission in Heatley and the Club in Forbes with statutory or quasi-statutory powers to exclude entry to premises it neither owns nor occupies but otherwise controls who must afford natural justice before the power is exercised. 107This distinction seems to have been recognised by Mr Hinkley in the present case. Once the primary judge had rejected the statutory licence submission, Star City did not, at least directly, fall within the category occupied by the Commission and the Club in Heatley and Forbes respectively. Hence Mr Hinkley relies on the reasons of Gibbs J and Murphy J in Forbes . Accordingly, it is necessary to analyse their Honour's judgments with some care and in some detail.

[14]

(c) An analysis of the reasons of Gibbs J and Murphy J in Forbes 108At 264, Gibbs J noted that Mr Forbes' case rested on the foundation that the decision to exclude him from the courses under the Club's control was made in contravention of the requirements of natural justice. Although it was conceded by the Club before this Court, and not disputed before the High Court, that it was required to observe the rules of natural justice in exercising its powers under r 28, his Honour considered that concession was correctly made. He said: "The respondent, although not granted statutory powers, was in fact the body whose function was to control trotting in New South Wales, and trotting is a public activity in which quite large numbers of people take part, whether as spectators or otherwise. Members of the public have the legitimate expectation that they will be given permission to go onto courses when trotting meetings are being held provided that they pay the stipulated charge and provided of course that they are not drunk, disorderly or otherwise unfitted by their condition or behaviour to be admitted. The respondent had power to defeat this expectation by acting under r 28, and was accordingly required to observe the rules of natural justice: Heatley v Tasmanian Racing & Gaming Commission (1977) 14 ALR 519 ; 51 ALJR 703 at 705-6, 711." 109His Honour then noted that the question was whether the relevant resolution was a decision taken by the Club under r 28 and whether the letter conveying the Club's resolution to Mr Forbes was a warning-off. If so, those acts were beyond the power given by r 28 and were void. He then noted the submission of the Club that the resolution was simply a decision by it to exercise its proprietary rights with respect to the two paceways that it owned. Gibbs J rejected this submission, holding that the resolution was clearly an exercise by the Club of its powers under r 28. To accept the Club's submission it would be necessary, his Honour observed (at 267), to hold that those parts of the resolution and letter which referred to the courses under the control of the Club were severable from those parts which related to the courses owned or occupied by it. When the whole of the correspondence was read, it clearly amounted to a warning-off under the Rules. Accordingly, no question of severance arose. 110At 268, his Honour expressed the view that the Rules limited the exercise by the Club of its right as landowner to exclude from its courses any person whom it did not choose to admit. The Rules applied to all trotting races held under the management, control or direction of the Club. Under them, the stewards have "the whole control of racing" at a trotting meeting. Accordingly, his Honour considered that the effect of the Rules was that during the currency of a race meeting, the power of exclusion or removal from a course lay with the stewards and not with the Club and the stewards could exercise that power only on specific grounds. In particular, neither the stewards nor the inspectors or supervisors were bound to defer to the views of the committee (of the Club) that a person who has not been warned off should be excluded from a course. 111His Honour then continued in the following terms (at 269): "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, 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." (Emphasis added) 112With respect to the passage from the reasons of Gibbs J recorded in the preceding paragraph, the primary judge commented as follows: "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)." 113I respectfully agree with her Honour's analysis of Gibbs J's reasoning that directly addressed the issue relating to the validity of the notice and which depended on the proper construction of the Rules. In that respect it differs from the obiter reasoning of Murphy J to which I refer below. 114Both before the primary judge and this Court, Mr Hinkley relied heavily upon that part of the reasons of Gibbs J which I have recorded at [75] above and which I have emphasised. However, the restrictions on the rights of the owner of the course to which his Honour was there referring were the restrictions contained in the Rules which vested in the stewards, and not the Club, control of the course and the power to exclude people from it, and this was so even if the course in question was one owned by the Club. Moreover, the last sentence of the emphasised extract seems to recognise that it was the Rules which gave a public element to race meetings conducted on courses controlled by the Club which thus restricted its common law proprietary rights with respect to courses it owned. 115Accepting that in Forbes the effect of the Rules was to impose restrictions upon the manner in which the Club might exercise its proprietary rights, the question which still arises is whether the Act places any such restrictions upon Star City's proprietary right to refuse to grant a member of the public a licence to enter the Casino and, if so, the nature of those restrictions. Can one find a restriction in the Act whereby the refusal to grant a licence or to revoke it once granted cannot be exercised without affording the relevant person procedural fairness or only a restriction that requires that a licence be refused or revoked other than arbitrarily or capriciously: that is, for a given reason? In my opinion, the only relevant limitation, if such it be, to be found in the Act is s 79. I shall return to this aspect below. 116I would also observe that the first sentence in the above passage from the reasons of Gibbs J which I have emphasised refers to a "moral duty" not to exclude an invitee "arbitrarily and capriciously". There seems to me, as I have indicated, to be a difference between a requirement to provide procedural fairness before excluding a person and excluding them for cause. I turn now to the reasons of Murphy J. 117Murphy J relied on Heatley for the proposition that to be valid, a decision to warn off must be made in accordance with the rules of natural justice which required an opportunity to be heard before the decision is made. Heatley supports that proposition in the context of the statutory power there under consideration. However, as will be seen, Murphy J regarded it as a general proposition applicable even where no power was being exercised equivalent to the statutory power in Heatley or the Rules in Forbes . 118His Honour (at 274) then rejected the contention of the Club that its resolution could be treated as an exercise of an owner's rights. Even if that were not so, the question would remain as to whether the Club was entitled to rely on its private rights, as owner of the land on which the racecourse was conducted, to arbitrarily exclude Mr Forbes. His Honour noted that the Club contended that it was in the same position as an individual householder with a right to arbitrarily exclude anyone it wished. In his opinion that was not so and although he noted that it was not necessary for the decision in the instant case, his Honour nevertheless proceeded to state his views on that issue. 119Murphy J then referred to the provisions in the New South Wales legislation which permitted the Club to conduct race meetings on its lands and to permit tote betting thereon. In light of those provisions, his Honour considered that the Club exercised powers which significantly affected members of the public who go to watch the spectacle, to bet as a hobby and some, like Mr Forbes, who sought to make a living by betting. Accordingly, he considered that the functions of the Club in relation to the conduct of race meetings on its lands was qualitatively different from that of the ordinary householder exercising his private property rights. 120His Honour then continued (at 274-275) as follows: "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. When rights are so aggregated that their exercise affects members of the public to a significant degree, they may often be described as public rights and their exercise as that of public power. Such public power must be exercised bona fide, for the purposes for which it is conferred and with due regard to the persons affected by its exercise. This generally requires that where such power is exercised against an individual, due process or natural justice must be observed. There is, of course, legislative and executive powers affecting individuals which traditionally have been treated as not being required to conform to natural justice. There is a difference between public and private power but, of course, one may shade into the other. When rights are exercised directly by the government or by some agency or body vested with statutory authority, public power is obviously being exercised, but it may be exercised in ways which are not so obvious. In my opinion, a body, such as the respondent, which conducts a public racecourse at which betting is permitted under statutory authority, to which it admits members of the public on payment of a fee, is exercising public power. It may not arbitrarily exclude or remove such a person from the lands during a race meeting ." (Emphasis added) 121Murphy J then concluded in the following terms (at 275-276): "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... 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) (sic). 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."

[15]

(d) The primary judge's conclusions with respect to Heatley and Forbes 122At [165] of her reasons, the primary judge concluded that the following propositions emerge from a synthesis of the judgments of the majority in Forbes : "(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.) (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)." 123I interpolate to note the words in parenthesis at the end of proposition (c) above in which her Honour considered that if Star City had exercised its power under s 79 to make an exclusion order, it was required to afford Mr Hinkley procedural fairness. This was not a point which was argued before her Honour as she acknowledged at [74] of her reasons where she said: "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 [respondents] 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." 124In oral argument on the appeal, Star City sought to challenge the correctness of her Honour's assertion in the last sentence of [165(c)] and, by consent, leave was granted for it to file an amended notice of contention to give effect thereto. I shall return to this issue below at [102]. 125It was submitted by Mr Hinkley both before her Honour and reiterated on appeal, that Star City was providing a public function (being the conduct of the only casino in the State) under governmental authority (being the Act). The imposition of the duty to afford procedural fairness was due to the nature of the power rather than the form of the entity on which it was conferred. Accordingly, it was the " public " nature of the function to permit entry to the Casino by the holder of the statutory licence to control gambling at the Casino that gave rise to the obligation to afford natural justice. It was therefore submitted that in issuing the Notice, Star City was exercising a " public power ". 126An alternative basis advanced by Mr Hinkley which, perhaps, was but a variation of the submission referred to above, was that Star City was exercising, in effect, a public proprietary right as distinct from a personal proprietary right when it purported to exclude Mr Hinkley from the Casino. 127At [173] of her reasons, the primary judge noted that reliance for the proposition that Star City was exercising a public power when it issued the Notice rested largely on the dicta of Murphy J in Forbes when he contrasted in qualitative terms the position of an individual householder and someone in the position of the Club in that case. Her Honour observed that the public policy test invoked by Murphy J seemed to envisage a balancing exercise between the rights of the owner or occupier of a " public" venue and those of an individual. She continued: "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." 128The primary judge's findings on this issue were as follows: "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." 129I note that on the hearing of the appeal Mr Hinkley eschewed any submission that the Act generally, and s 79 in particular, operated to abrogate Star City's common law proprietary right as the occupier of the Casino to refuse entry to a member of the public or to exclude that person or to revoke a licence to enter, if granted. Rather, it was submitted that s 79 limited Star City's common law right in that it could only be exercised in a manner which was " consistent" with the exercise of its powers under s 79. That limitation was confined to the alleged requirement that in making an exclusion order under s 79(1) Star City was (although the Authority was not) bound by the rules of natural justice. 130Her Honour continued: "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?" 131Finally, at [182], her Honour concluded that she was not persuaded that a casino was qualitatively in a different position than, say, a nightclub and it would be difficult to suggest that there was an obligation to afford natural justice in a decision whether or not to admit entry to a venue of that kind. She was not persuaded that public policy required the conclusion that there was an obligation to afford Mr Hinkley natural justice in the present context.

[16]

The submissions on the appeal 132As noted at [89] above, Mr Hinkley contended that Star City was a private body exercising a public function under governmental authority. The error of the primary judge was that she had focused, indirectly, on only two possibilities, namely, whether the Notice was the exercise of a statutory power or a common law proprietary right when in fact there was a third possibility being the exercise of a public right independent of any statutory power. Her Honour failed to consider the nature of the power being exercised. In other words, although not granted statutory powers, Star City was required to observe the rules of natural justice because it was effectively controlling a public activity, namely, the lawful conduct of gaming in the only casino in New South Wales. 133Throughout Mr Hinkley's submissions there is the assertion that Star City was controlling a public activity. There is no doubt that it was conducting an activity, namely, legalised gambling, in which the public were impliedly invited to take part. But when it came to the control of that activity, in my opinion it is the Authority and the inspectors (as defined) that control the activity and not Star City. Certainly, as the definition of " operations" in relation to a casino in s 3(1) of the Act makes clear, the casino operator conducts gaming at the casino and manages and supervises the conduct thereof but the real control of Star City's activities is vested in the Authority and its inspectors: see the Authority Act , ss 18 and 32. As I noted at [14] above, the Act is replete with prescriptive obligations imposed upon the casino operator, the breach of which make it liable to disciplinary consequences or prosecution and, the imposition of a penalty. 134When Mr Hinkley's written submissions are read in conjunction with his oral submissions on the appeal, it would appear that he bases his argument on the proposition that his exclusion from participating in gambling in the only legal casino in the State was, by its nature, a decision of a public character. It was accordingly an exercise of a public function and, as Murphy J held in Forbes, attracted the rules of natural justice. It was submitted that the decision to exclude Mr Hinkley from participating in the gambling activities of the casino was, therefore, not the exercise of a proprietary right to exclude a person from private property but was the exercise of a public power to exclude him from participating in the lawful gambling activities which Star City was authorised to conduct. Accordingly, the central question in the appeal involved an examination of the nature of the right that was exercised by Star City. If it was a right to exclude Mr Hinkley from gambling at the Casino, then it was the exercise of a public power or function. 135An alternative argument advanced by Mr Hinkley was based upon the dissenting judgment of Mahoney JA in Forbes. His Honour held that the existence of the power of the Club to warn-off under the Rules operated to exclude any other right as the relevant Rules were inconsistent with the retention in the Club as the controlling body of the power to prohibit entry to the relevant racecourses. It was submitted that what his Honour was saying was that where a controlling body of a public activity has two powers to exclude a person from that activity, namely, a common law proprietary power on the one hand and a quasi statutory power (such as under the Rules) on the other, then the former power could not be exercised in a manner inconsistent with the exercise of the latter power. It was submitted that Mahoney JA's analysis was adopted by Gibbs J in the passage from the latter's reasons which I have recorded at [75] above. 136Mr Hinkley advanced an alternative contention based both on the moral duty to which Gibbs J referred in Forbes and also to the statement by his Honour recorded at [72] above that members of the public have a legitimate expectation that they will be given permission to enter public racecourses which cannot be defeated except, so it was contended, by affording those persons procedural fairness. However, whether procedural fairness must be afforded in such circumstances depends on the particular nature of the power being exercised for the purpose of denying that expectation. In Forbes it was r 28. In Heatley it was s 39 of the legislation there under consideration. In the present case, it is the exercise of a common law proprietary right. In my view, there is a difference between the exercise of the last-mentioned right and the exercise of the warning-off powers the subject of the decisions in Heatley and Forbes . 137Finally, Mr Hinkley submitted it was not open to Star City to circumvent the limitations imposed upon its power to make an exclusion order pursuant to s 79(1) of the Act by purporting to exercise its common law proprietary rights to revoke the implied licence which, it was accepted, had been extended to Mr Hinkley by Star City. It was contended that the reasons of Gibbs J (recorded at [75] above) supported the proposition that the statutory power to exclude a person from the Casino vested in Star City as the casino operator by s 79(1) and was required to be exercised by affording a person against whom it was directed procedural fairness. Accordingly, it was submitted that it was not open to Star City to circumvent that obligation by exercising its proprietary rights without reference to the limitation on its power under s 79.

[17]

(a) Legitimate expectation 138For the purpose of dealing with Mr Hinkley's submissions I shall assume, without deciding that, as the casino operator, Star City was required to afford procedural fairness to a person in respect of whom it proposes to make an exclusion order pursuant to s 79(1) (although I would note that I do not accept that proposition as self-evident). Mr Hinkley's submission, therefore, requires a finding that Star City: first, has the power to make an exclusion order pursuant to s 79 only if it affords the person in respect of whom it proposes to make the order procedural fairness and, secondly, cannot exercise its common law proprietary right to exclude that person from the Casino without first affording that person procedural fairness. In my respectful opinion, there is no basis for construing s 79 as in some way imposing a limitation by way of a requirement to afford procedural fairness on the exercise by Star City of its admitted right to refuse entry to Mr Hinkley to the Casino and to inform him that any implied licence he might otherwise have had to enter those premises had been withdrawn. 139One of the difficulties facing Mr Hinkley and his reliance upon the legitimate expectation argument extracted from the reasons of Gibbs J in Forbes, is that it ignores the provisions of s 77(1) of the Act which, for convenience, I repeat: "A person enters and remains in a casino only by licence of the casino operator, except as provided by this section and section 78." (Emphasis added) 140The use of the word " only " in s 77(1) makes it clear that a member of the public has no right or entitlement to enter and remain in the casino unless and until he is licensed to do so by the casino operator. In my view, the section itself negatives any legitimate expectation which a member of the public might otherwise have had to enter the Casino and remain there. The section does not oblige the casino operator to grant a licence but leaves it to the discretion of the operator as the owner or occupier of the Casino. The only persons who have the right to enter and remain in the Casino is the inspector referred to in s 77(2) and a police officer pursuant to the powers of entry referred to in s 78(2). Neither of those persons require a licence to enter a casino from the casino operator. Everyone else does. And it is only if they obtain such a licence that they may enter and remain in the Casino. A similar approach has been taken in New Zealand with respect to its casino legislation: see below. 141Furthermore, the terms of entry, of which Mr Hinkley was apparently aware, make it clear that Star City asserted that it had the right to refuse entry to any person and the right to withdraw any person's admission to remain in the Casino without reason.

[18]

(b) The consequences of the exercise of the right 142Another difficulty which Mr Hinkley's submissions do not attempt to overcome involves the quite significantly different consequences between the exercise by the casino operator of its common law proprietary right to refuse entry to the Casino on the one hand and its making of an exclusion order pursuant to s 79(1) on the other. With respect to the former, a person who has been refused entry but who enters nonetheless is merely committing a trespass. This gives rise to a civil remedy, although the damages may well be nominal in a case such as the present. 143It is possible that such a person might be prosecuted pursuant to s 4(1) of Inclosed Lands Protection Act 1901 (NSW) which provides that a person who, without lawful excuse, enters into inclosed lands without the consent of the owner or occupier and who remains on those lands after being requested by the owner or occupier to leave those lands, is liable to a penalty not exceeding, relevantly, five penalty units (or $550). In this respect, it is probable that the casino complex constitutes inclosed lands: see Director of Public Prosecutions (NSW) v Strang [2011] NSWSC 259 where Johnson J held that a Best and Less store within a large multistorey shopping complex was capable of falling within the statutory definition of "inclosed lands" . On the other hand, a person the subject of an exclusion order who enters or remains in a casino to which the order relates is subject to a maximum penalty equivalent to $5500 or imprisonment for 12 months or both: see s 84(1) of the Act. Furthermore, such a person may well be excluded from other casinos in Australia as a consequence of the provisions of ss 81 and 81A of the Act. No such consequences attend the exercise by Star City of its common law proprietary right to exclude persons from the Casino. 144In the foregoing circumstances it seems to me, as was suggested during the course of argument, that s 79 is a freestanding statutory power which operates independently of the casino operator's common law proprietary rights with respect to the casino in respect of which it holds a casino licence.

[19]

(c) Adoption of Gibbs J's analysis of Mahoney JA in Forbes 145I now turn to the appellant's submission respecting the adoption of Gibbs J's analysis of Mahoney JA's reasons in Forbes. Mr Hinkley submitted that the effect of what Mahoney JA said in the Court of Appeal and Gibbs J's endorsement of his Honour's approach was that Star City's common law proprietary right to refuse to grant Mr Hinkley a licence to enter the Casino would not be exercised other than in accordance with the restrictions which applied to the exercise of an exclusion order under s 79(1). With respect, that is not how I perceive Gibbs J to have understood what Mahoney JA said in the Court of Appeal. 146It is true that in Forbes, Aickin J said that Mahoney JA (in dissent in this Court) had taken the view that the existence of the power to warn off under the Rules operated to exclude any other right, as such r 28 was inconsistent with the retention by the controlling body (the Club) of the power to otherwise prohibit entry to its courses. However, of the four majority justices in Forbes , only Gibbs J purported to adopt what Mahoney JA had said in this Court and then described his Honour's finding in somewhat different terms to how it had been expressed in his reasons in the Court of Appeal. 147With respect, I regard Mahoney JA as holding that the effect of r 28 of the Rules was that, in relation to relevant persons, a power to prohibit entry of the kind which constituted a warning-off could not be exercised in any manner other than in accordance with that rule; the effect of the rule was to impose restrictions upon the manner in which the Club might otherwise exercise its proprietary rights. As I understand his Honour's approach, it was based on an abrogation of the common law power as being inconsistent with the power to "warn off" under the Rules. However in oral argument Mr Hinkley did not contend that the power to make an exclusion order under s 79 abrogated the common law right of the casino operator to refuse entry of persons to the Casino or to revoke their licence to remain on the premises. His submission was simply that before that right was exercised, Mr Hinkley was entitled to be afforded procedural fairness. 148In this respect Mr Hinkley's oral submissions on the appeal revealed some inconsistency. At Appeal Transcript 18, senior counsel for Mr Hinkley was asked whether he was asserting that the proprietary right to exclude could be exercised only in accordance with the statutory right to exclude. His response was that the proprietary right to exclude permanently could not be exercised in a manner so as to circumvent the implied requirement of the Act (presumably s 79) and natural justice has to be applied to such a decision, a proposition which, he accepted, he garnered from Mahoney JA's judgment in Forbes. On the other hand, senior counsel expressly eschewed any submission to the effect that any proprietary right which might otherwise have been exercised to exclude a person from entering the Casino could no longer be exercised given the power to exclude under s 79(1). 149However, part the confusion that occurred during the course of argument was that Mr Hinkley submitted that the obligation to afford procedural fairness only applied where a common law proprietary right to refuse entry to the Casino was exercised on an indefinite or permanent basis as distinct from an "on the spot" basis. In this respect the primary judge found, and it was not challenged, that an ordinary member of the public approaching the Casino on a day in which it was in operation had an implied licence to approach its entrance and seek to be admitted. If that person was admitted, then he or she was licensed to enter and remain within the Casino until that licence was revoked. It is difficult to see how this right, which is exercised on a day to day basis, could either be abrogated by the more draconian power contained in s 79(1) or be subject to an obligation to afford procedural fairness each time before a person was refused entry.

[20]

(d) Should Murphy J's approach in Forbes be adopted? 150In any event, and with respect, I would not be prepared to apply the approach of Murphy J in Forbes which appears to be based upon his Honour's perception of public policy which, in a case such as the present, would ignore the express provisions of the Act. It may well be that the obiter remarks of his Honour can be confined, and in fact should be confined, to the exercise of a power to exclude a person indefinitely from a public racecourse. However, to the extent to which it is sought by analogy to apply his Honour's approach to a casino, in my view that approach is far too widely stated and, subject to the position in New Zealand, is yet to be authoritatively adopted in any other jurisdiction. As Murphy J's dictum, accepting that it was " seriously considered ", did not command a majority of the High Court, this Court is not bound to apply it: Farah Constructions v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 at [134]; Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 at [311] per Campbell JA. 151Of course, one of the difficulties is determining what his Honour meant by the exercise of a " public power ". Mr Hinkley submitted that it was the right or privilege of Star City to operate the only casino in the State. On the following page of the Appeal Transcript, he submitted that the power of Star City, as casino operator, to make a decision in respect of whether to include or exclude persons from an activity that would otherwise be illegal constituted a public power. However, such a definition or explanation of the phrase " public power " does not accord with the final sentence of Murphy J's reasons in Forbes (see [85] above) where he said that it was the exercise of the power to exclude a person indefinitely from a public racecourse which should be treated as a public power subject to due process. It is important to note that his Honour did not seek to limit the approach that he adopted to trotting or horseracing activities or to an activity such as the casino in the present case, of which there is only one in the State. His approach was much more broadly stated than that. 152Furthermore, his Honour's approach only applied where " rights are so aggregated that their exercise affects members of the public to a significant degree ". Such rights are said to be properly described as public rights and their exercise that of a public power. However, in the present case the Court was not favoured with submissions as to which rights or powers of Star City were so aggregated because their exercise would affect members of the public to a significant degree. This may be due to the fact that there was no aggregation of rights or powers vested by the Act in Star City. Apart from its power to make an exclusion order under s 79(1), it only had one common law power, namely, to grant or refuse a licence to enter the Casino or to revoke such a licence. 153Murphy J's reasoning in Forbes has not been referred to in any other case which I have been able to find. Forbes itself was referred to by Spigelman CJ in Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381 at [7] where he said: "In my opinion, the common law basis for the duty to accord procedural fairness is reflected in the cases which extend the duty to the exercise of prerogative powers...It is also the basis for the extension of the principles of judicial review to private bodies which make decisions of a public character. (See e.g. Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; R v Panel on Take-overs and Mergers; Ex parte Datafin [1987] QB 815.)" 154However, the reference by the Chief Justice to Forbes in the passage recorded above does not constitute an adoption by his Honour of the approach of Murphy J in that case. Rather, it adopts the view of the majority in Forbes that judicial review applied to a decision of the Club in respect of which it was found, on conventional grounds, that there was a requirement to afford procedural fairness which had been breached. Nevertheless, there is some judicial support for Murphy J's view to which I now turn.

[21]

(e) The doctrine of prime necessity 155An attempt was made independently of, and without reference to, Murphy J's dictum in Forbes , to apply a similar, but not necessarily identical, approach to the exclusion of a member of the public from the Auckland casino of Sky City Auckland Limited (SCA) in Sky City Auckland Ltd v Wu [2002] 3 NZLR 621. 156The facts, taken from the headnote, were as follows. SCA served a trespass notice on Mr Wu forbidding him from entering any part of the Sky City casino in Auckland for a period of two years. Mr Wu complained that SCA had acted unreasonably in banning him. He contended that he was banned because he was a successful gambler and that he had raised with SCA an issue about discrepancies in pay-outs from slot machines in the casino. SCA alleged that Mr Wu was ejected after threatening a staff member and argued that in any event, under the general law and under s 67 of the Casino Control Act 1990 (NZ) (the NZ Act), it was entitled to exclude people without giving any reasons. 157In the High Court Mr Wu obtained from Chambers J an interlocutory injunction restraining SCA from enforcing the trespass notice. His Honour concluded that SCA owed " a special duty to the public ". He said that when property owners open their premises to the general public in pursuit of their own property interests, they must not exclude people unreasonably. They have a duty not to act in an arbitrary or discriminatory manner towards people who come onto their premises. This was but a development of the old law of common callings. 158SCA appealed to the New Zealand Court of Appeal. In delivering the judgment of himself and Anderson J, Blanchard J regarded the case as turning on the interpretation of s 67(1) of the NZ Act. It provided as follows: " 67. Entry to and exclusion of entry from casino - (1) The fact that a casino is licensed under this Act shall not entitle any person to enter or to remain on the casino premises as against the holder of the casino premises licence or the casino operator's licence; and, subject to any right conferred by or under any other Act, every person shall leave the casino premises when required to do so by or on behalf of the holder of the licence." 159It was submitted on behalf of Mr Wu that at common law the right of a property owner or occupier to require persons to leave the property or to refuse them entry has been qualified where the owner or occupier is using the property to conduct a business affected by the public interest. A casino operator, by virtue of a licence from the state, is in the position of having a " virtual monopoly " and, therefore, has such a business. Because of the status of the business the casino operator cannot exclude a member of the public from access to it without good reason. 160At [17] Blanchard J recorded Mr Wu's submission that the New Zealand Court of Appeal in Vector Ltd v Transpower New Zealand Ltd [1999] 3 NZLR 646 had traced the common law doctrine of prime necessity back to a treatise of Sir Matthew Hale written in 1670 but not published until 1787 and had accepted that, where a relevant monopoly exists, property becomes affected by the public interest and subjected to the asserted common law obligations. The modern form of the doctrine, it was submitted, had developed by analogy and resembled the American law relating to public utilities. The concern was with the abuse of monopoly power. It was contended that the point had been reached in New Zealand where the various doctrines had merged into one which had several aspects, namely, businesses affected with a public interest are bound to supply goods and services to the public equally, without discrimination and unreasonable exclusion, and at a reasonable price. 161At [22] of his reasons, Blanchard J observed: "The idea that a business invested with "the monopoly of a public privilege" must, in the absence of good reason in a particular case or situation, such as a lack of capacity to provide goods or services, make its facilities available to all, and at a reasonable price, is soundly based both in New Zealand law and in economic good sense." 162His Honour then noted that the Court of Appeal in Vector had referred to Allnutt v Inglis (1810) 12 East 527; 104 ER 206 where the London Dock Company had a monopoly bond store facility (for the deposit of wine pending the payment of duties) but had refused to store the plaintiff's wine because they would not pay the company's notified charges. It was held that there was such a monopoly and public interest attaching to the company's bond store that it was bound by law to receive the plaintiff's wine into its warehouses for a reasonable hire and reward. Lord Ellenborough CJ, in the leading judgment, while recognising a general principle that "every man may fix what price he pleases upon his own property or the use of it", said (at 538) that: "if, for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms" 163The Chief Justice continued that the company's warehouses had been: "invested with the monopoly of a public privilege, and therefore they must by law confine themselves to take reasonable rates for the use of them for that purpose". 164At [24] Blanchard J observed: "[24] The same principle, deriving from Hale, was accepted by the Supreme Court of the United States to be part of the common law in that country in Munn v Illinois 94 US 113 (1876). Waite CJ, delivering the opinion of the Court, said at p 126: "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use he must submit to the control." A subsequent reference to Hale makes it clear that the Court was contemplating a situation in which the person concerned had an effective monopoly. [25] Vector confirms the reception of the principle into New Zealand law and refers to a considerable body of authority in this country. The label given to it in that case - the doctrine of prime necessity - is a term appropriate to cases which concern the supply of electricity or water by a utility company but we think that Mr Taggart is correct in his submission that that doctrine is a strand of the broader principle which, as Vector recognised, is adaptable to meet new legal and social situations. [26] This Court viewed the doctrine of prime necessity as a "backstop common law remedy", to be applied in the absence of other remedies and where there are no statutory contra-indications to its use, such as were found in that case in the Commerce Act 1986, reinforced by the State-Owned Enterprises Act 1986. As Thomas J said in his concurring judgment in Vector at para [77], without such a remedy the law would be deficient. Thomas J spoke of the law's objective of curbing the exploitation of monopoly power in the supply of essential services (para [80])." 165After noting (at [27]) that in the United States it was not yet settled whether, and to what extent, licensed gambling facilities were properly to be regarded as businesses affected by the public interest, his Honour then discussed a number of American authorities relating to racecourses and concluded: "[34] Although we do not find it necessary to express a concluded view ... based in part on the foregoing authorities, that the common law of New Zealand will now recognise a casino or other licensed gambling facility as a business affected by the public interest in circumstances where the operator enjoys a monopoly; and that in such a case, subject to any statutory provision to the contrary, the operator's right to exclude members of the public may be qualified by an obligation to do so only for an articulated good reason. [35] We do not, however, express a firm conclusion on this point because, even if that is assumed to be the law and the Sky City casino is further assumed to be operating in monopoly conditions, in our view s 67 expresses a legislative contra-indication, namely that the fact that the casino is licensed does not make it necessary for the licence holder to have a good reason for excluding someone from the premises." 166His Honour then set out s 67 of the NZ Act, and observed: "[37] It can be seen that it is directed to the effect of the licensing of the casino under the Act. That fact is not to entitle any person to enter or remain on the premises and, subject to any right conferred by or under any other Act - such as the Human Rights Act - every person is to leave the casino premises when required to do so by or on behalf of a holder of the licence. ... It seems to us that the very purpose of the section is to negate the doctrine upon which the respondent is relying - to negate any suggestion that because the casino is licensed, and in its particular situation therefore may operate as a monopoly created by the licence, patrons must not be excluded without good reason. ... ... [39] We have therefore concluded that the purpose of s 67 is to make it clear that the holders of licences pertaining to casinos under the Act are entitled to exclude members of the public without assigning a reason so long as they do not commit any breach of the Human Rights Act or other relevant legislation, ..." 167McGrath J delivered a separate judgment agreeing with Blanchard and Anderson JJ with respect to the effect of s 67. After referring to the structure of the NZ Act his Honour stated (at [44]) that its "overall effect is that licence holders, while precluded from charging for entry or the right to play any game, are otherwise free to choose which members of the public they will admit to or exclude from the casino premises in the exercise of their private rights of ownership of the business and their ownership or occupation of the premises." 168His Honour concluded his analysis of s 67 in the following terms "[45] Such a meaning of s 67 is consistent with the statutory scheme whereby the holder of, in particular, the casino operator's licence is responsible for the proper operation of the casino. This responsibility is reflected, first, in the mandatory considerations addressed by the Casino Control Authority at the time casino licences are granted, under Part II of the Act and, secondly, in the provisions for "Supervision and Disciplining" of licensees under Part VII of the Act. In this wider statutory context s 67 can be seen as a provision with the purpose of facilitating the orderly conduct of casino businesses. The ability to control who may enter and remain on the premises is to be seen as an important part of the means by which Parliament envisaged licensees would discharge their responsibility for ensuring the proper conduct of the casino in terms of the statutory requirements. The nature of a casino business is clearly regarded by the legislature as requiring the giving of that unusual degree of operator control over public access to the licensed facility." 169McGrath J then turned to consider the scope of the underlying common law principle of prime necessity which was central to Mr Wu's argument in that case and, in effect, to Mr Hinkley's submissions in the present case. Like the other two members of the Court, he did not wish to express a concluded view on the issue but nevertheless, given what had been said by those judges, considered it appropriate to express his own tentative views on the scope of prime necessity in New Zealand. 170After referring to Vector and some earlier New Zealand cases in which the term " prime necessity " was considered in relation to utilities supplying water for domestic and sanitary purposes, his Honour noted (at [51]) that the element of a necessary service or commodity appeared constant in those cases including Vector . Thus reference was made to one case involving the collection of refuse at post offices as being a matter of necessity in the interests of public health and to another involving a water supply authority where it was held that the supply of water was a matter of prime necessity. 171His Honour also made reference to Wairoa Electric-power Board v Wairoa Borough [1937] NZLR 211, a case involving an electricity supply utility, where Ostler J stated the principle as being that a statutory body having " a practical monopoly of the supply of a commodity of prime necessity ... is under a legal liability to supply that commodity at a reasonable price ... " 172McGrath J concluded his consideration of the authorities and Mr Wu's submissions in the following terms: "[53] The effect of the submission to which the majority is attracted, would be to remove from the principle the requirement of the element of "public necessity". Only by doing that will there be a basis for applying it to restrain the operators of casinos, or other licensed gambling facilities, from excluding people from their premises without giving good reason. Given the rather anachronistic nature of the doctrine and its limited relevance in the modern political economy as Vector Ltd demonstrates, it would be strange for the Courts to attempt to broaden the scope of its traditional application in New Zealand." 173A year later a five member bench of the Court of Appeal was asked to reconsider Wu in Jones v Sky City Auckland Ltd [2004] 1 NZLR 192. In that case Mr Jones, a successful patron of the casino, had been served with a notice forbidding him from entering the premises without assigning a reason therefor. The bench included Blanchard and Anderson JJ but not McGrath J. In an unanimous judgment delivered by Keith J, the Court confirmed its decision in Wu with respect to the effect of s 67(1) of the NZ Act. In so concluding, the Court considered (at [25]) that s 67 left no possible room for an argument that the casino had the character of a prime necessity, a common calling or a business affected with the public interest which would qualify the common law powers of the owner or occupier. Their Honours (at [27]) declined to express a view as to whether a casino could be so characterised. 174In my opinion there is no relevant difference in substance or effect between s 77(1) of the Act and s 67(1) of the NZ Act. True, the latter is more detailed in its terms but for the reasons I have articulated at [104] above, I do not regard that factor as creating a different outcome. Accordingly, even if the so-called doctrine of prime necessity was otherwise applicable, its effect is abrogated by s 77(1) of the Act. 175That is not to say that there are no limitations on Sky City's common law power to refuse entry of a member of the public to the Casino. It would, for instance, be acting unlawfully if it denied entry in breach of the provisions of the Anti-Discrimination Act 1977 (NSW): see paragraph (f) in the definition of " services " in s 4(1) of that Act which would bring a casino within that legislation's reach. 176Finally, I would express the view that a casino, whether or not having a monopoly status, cannot be fairly categorised as having an element of " public or prime necessity " when compared to those essential commodities or services that have been held to so qualify such as water and electricity supply and sewerage and garbage collection services. I therefore prefer the reasoning on this issue of McGrath J to that of Blanchard and Anderson JJ. In particular, I do not, with respect, adopt the broad proposition of their Honours articulated at [22] of their reasons and which I have recorded at [125] above. 177There are two further observations which I would make with respect to this issue. The first is that the application of the proposition accepted by the majority in Wu to the Casino would be antipathetic to the objects of the Act set out in s 4A(1): see [10] above. It would also be inconsistent with the considerations referred to at [14] and [97] above. 178The second is that the prime necessity doctrine or its wider application to a business invested with " the monopoly of a public privilege " or a business " affected by the public interest " appears only to require, at its highest, the provision of that business's goods and services at a reasonable price and that those goods and services not be denied to members of the public " without good reason ". Neither the New Zealand cases nor the English and United States authorities to which they refer suggest that any such denial and exclusion attracts the rules of natural justice or, as Murphy J described it in Forbes , " due process ". 179Mr Hinkley's complaint was that his implied license to enter and remain in the Casino had been withdrawn without him first being afforded procedural fairness. The expanded New Zealand doctrine of prime necessity does not appear to assist him in that respect. Be that as it may, I do not consider that that doctrine is as yet part of Australian common law and, even if it is, it has no application to a casino or a casino operator regulated by the Act.

[22]

(e) Conclusion 180For the foregoing reasons, in my opinion Mr Hinkley's submissions to the effect that it was not open to Star City to issue him with the Notice without first affording him procedural fairness should be rejected. Given the terms of the Act and, in particular, s 77(1), the present case is governed by the principle adumbrated by Aickin J in Heatley at 506 (recorded at [52] above).

[23]

Miscellaneous matters 181One of the issues that arose before the primary judge and to a limited extent on the appeal, was whether the decision of Star City to issue the Notice was subject to judicial review. Reliance was placed on a decision of the English Court of Appeal in R v Panel on Take-overs and Mergers; Ex parte Datafin PLC [1987] QB 815. In that case the Panel on Take-overs and Mergers was an industry body which lacked legal recognition. Its determinations were, however, of undoubted commercial and public significance in the operation of the London Stock Exchange and the enforcement of the non-statutory City Code on Takeovers and Mergers. The Court of Appeal held at [74] that although a private body, it was amenable to judicial review because it was exercising " regulatory functions of government" . 182Whether or not Datafin applies in New South Wales was the subject of extensive analysis by Basten JA, with whom Spigelman CJ agreed, in Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited [2010] NSWCA 190; (2010) 272 ALR 750 at [74]-[81]. It has been held to apply in Victoria: Ceca Institute Pty Limited v Australian Council for Private Education and Training [2010] VSC 552; (2010) 245 FLR 86 per Kyrou J. It is unnecessary on the facts of the present case to revisit the issue as to whether Datafin applies in New South Wales if only for the reason that the factual context in Datafin is entirely different to that in the present case. In particular, Star City was not exercising " regulatory functions of government " . To the extent to which any regulatory functions were being exercised with respect to the Casino, they were being exercised by the Authority and not by Star City as the casino operator. Accordingly, in my view Datafin and the authorities that have referred to it have no application to the present case. 183I should add, as Basten JA observed in Chase Oyster at [79], that the duty to accord procedural fairness is not co-extensive with the availability of the prerogative writs such as certiorari for breach of that duty. Breach of procedural fairness, his Honour noted, was a form of jurisdictional error in respect of which declaratory relief could be obtained rather than judicial review. In fact, the summons in the present case does not seek judicial review but a declaration of invalidity with respect to the Notice on the ground that there was a failure to accord procedural fairness. 184The second matter that does not require consideration arises out of alleged errors of the primary judge which are the subject of the respondents' amended notice of contention. In view of my opinion that her Honour was correct in finding that Star City was not obliged to accord procedural fairness to Mr Hinkley before it issued him with the Notice, it is unnecessary to consider whether Casino Properties was entitled to exclude Mr Hinkley from the non-casino premises. 185Finally, it is also unnecessary to determine whether Star City, as the casino operator, was required to afford procedural fairness in the making of an exclusion order pursuant to s 79(1) of the Act. This issue, as I indicated at [87] above, was not argued before the primary judge but it was raised during the course of oral argument on the appeal given the reliance by Mr Hinkley on s 79 as restricting Star City's common law proprietary right to refuse to grant Mr Hinkley a licence to enter the Casino. This limitation or restriction was assumed to be a requirement to afford procedural fairness when Star City as the casino operator proposed to make an exclusion order pursuant to s 79(1). If that was not the case, then the foundation of Mr Hinkley's argument falls away. 186Accordingly, Star City made submissions during the course of the appeal to the effect that as a matter of construction of the Act, the common law duty to afford procedural fairness where it proposed to make an exclusion order pursuant to s 79(1), had been excluded by necessary implication. It was submitted that the application of procedural fairness to the exercise by the casino operator of its power to exclude under s 79(1) would be inconsistent with the operation of the relevant statutory provisions and, in particular, would be contrary to the objectives of the Act set out in s 4A(1) to which Star City was required by s 4A(2) to have regard when exercising its powers under s 79(1). 187As this was a new matter raised during the course of the argument, Mr Hinkley sought leave to provide supplementary submissions with respect to the issue. Those submissions did no more than refer to passages from three decisions of the High Court and one of the Federal Court together with a reference to Aronson, Dyer and Groves Judicial Review of Administrative Action , 4 th ed. Lawbook Co. 2009. 188One of the difficulties in acceding to Star City's submissions with respect to s 79 is that s 141(4) expressly provides that in the exercise of its functions under the Act the Authority is not required to observe the rules of natural justice except to the extent that it is specifically required to do so by the Act. There is no equivalent provision applying to the casino operator. Therefore, so the argument runs, the legislature did not intend to exclude the rules of natural justice from the exercise by the casino operator of its power to make an exclusion order pursuant to s 79(1). 189In my view, the issue so raised is one of some difficulty and the answer is not entirely clear-cut. Although in oral submissions Star City took the Court to various provisions of the Act which, so it submitted, by necessary implication excluded the common law duty to afford procedural fairness in the exercise by the casino operator of its power to make an exclusion order pursuant to s 79(1), we were not taken to any of the relevant authorities. My own reading of the text of Aronson, Dyer and Groves at 477-503 illustrates the difficulties to which I have referred. 190However, I do note that s 79(1) is the only provision of the Act which vests a power in the casino operator which is capable of attracting a requirement to afford procedural fairness. On the other hand, there are a plethora of functions (as defined in s 4(2)) vested in the Authority which, but for s 141(4), would attract that requirement. I can see no logical reason to exclude the Authority but not the casino operator from that obligation. Although there is a right of review to the Authority pursuant to s 80 with respect to an exclusion order made by the casino operator, the Authority is not required to provide the applicant with procedural fairness in conducting that review. According to Aronson et al, ibid at [7.300]-[7.305], this militates against the proposition that that right of review excludes by necessary implication the requirement to afford procedural fairness when the casino operator exercises its s 79(1) power. On the other hand, to require the application of procedural fairness to the exercise of such power, given the objects of the Act set forth in s 4A(1), may well be inconsistent with the operation of s 79 in achieving those objects: Aronson et al, ibid at [7.240]. My tentative view is that that is the case. 191In the absence of full argument on this important question, it would be inappropriate to express any final view thereon, and I do not do so. However, it is a matter to which the legislature's attention should be directed in order that the issue be put beyond doubt. However, since writing this judgment I have had the benefit of reading in draft the reasons of Giles JA which deal directly with this issue. I acknowledge the force of his Honour's conclusion and his cogent reasons in support of it which accord with my own tentative view on the issue.

[24]

The result 192The primary judge held that in issuing the Notice, Star City was not bound to afford Mr Hinkley procedural fairness. In my view, her Honour's decision was correct. The submissions of Mr Hinkley, founded as they are upon dicta of Gibbs J and Murphy J in Forbes , should be rejected. 193I would therefore propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed with costs.

[25]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2011

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