Plaintiff v Defendants

1 The plaintiff, Harry Kakavas, was and is a problem gambler. Indeed, a diagnosis which I accept has him as a pathological gambler; and I also find that the first defendant, Crown Melbourne Ltd ("Crown") cannot divorce itself of some knowledge of his condition. Within weeks of the opening of the Casino in Melbourne on 30 June 1994, Crown had enrolled him as a patron. Less than five months later, however, on 29 November 1994, Crown had to write to him about bounced cheques totalling $47,500. He says - and I accept - that, during the negotiations that followed, he told Crown about his gambling problem. Shortly before that, on 10 November 1994, he had been interviewed by police and charged with defrauding a finance company, Esanda Finance Corporation Ltd, of $286,000. Crown came to know about that too, and to know also that he attributed his criminal conduct to a gambling addiction.

2 Crown was nevertheless sceptical. It believed that, although his love of a bet may have swayed Mr Kakavas' judgment at times, even to the point of criminality, his elevation of it to the status of an addiction was a mere pitch, calculated to gain the sympathy of the judge who sentenced him for the Esanda fraud. Nevertheless it was at Crown's suggestion, or at the least with Crown's active acquiescence that, on 8 November 1995, a year after being charged, Mr Kakavas took out a self-exclusion order. This is a simple process made available by the Casino Control Act 1991 by which patrons who wish to avoid the temptation to gamble may ban themselves from entering or gambling at a casino.

3 Crown was involved with Mr Kakavas and his gambling problem in other ways too. In July 1996, he became a patient of Dr J P Darmody, a psychologist nominated by Crown as specialising in the treatment of problem gamblers. Crown became aware of the patient/consultant relationship. Crown was involved, too, when on 23 January 1998, Mr Kakavas came up for sentence for defrauding the financier. But, consistently with its scepticism, Crown in a report prepared for the sentencing judge referred to Mr Kakavas' gambling only as something for which he had an "inclination".

4 Following his sentence, Mr Kakavas was imprisoned for four months. Almost immediately upon his release, he applied in writing to Crown to have his self-exclusion order revoked. By signing the form of application, he agreed (among other things) that he had not been encouraged to apply for revocation, that he had given the matter careful consideration, and that he would contact Crown immediately if he had any concern about its consequences. He put himself forward as a man untroubled by any gambling problems. And, as the evidence clearly shows, he continued to present to Crown in this way.

5 The application to resume gambling at Crown was supported by an expert opinion. Mr Timothy Watson-Munro, another of the psychologists who had treated Mr Kakavas, wrote to Crown on 3 June 1998. That letter stated, in effect, that the plaintiff had made so much progress in overcoming the gambling problems from which he had previously suffered that "he now feels ... that he now has both the insight and requisite behavioural skills to maintain his involvement at the Casino at no more than that of a recreational gambler." Moreover, as Mr Watson-Munro reported, he had taken Mr Kakavas carefully through the form of application to revoke the self exclusion order. The result, in the psychologist's opinion, was that his client had "a clear understanding of the relevant matters in that document and attendant to this, his duties and obligations to the Casino". Crown was entitled to accept this as true - which, I find, it did. It follows, then, that Crown was also entitled to act on Mr Kakavas' "authorisation" and "direction" (to use the terminology of the form of application) to revoke that order. This it did by letter dated 18 June 1998. On the same day, however, it told him that his licence to enter or remain on any part of Crown premises, whether the Casino or the Crown Towers Hotel or anywhere else, had been withdrawn.

6 Crown contends that its withdrawal of Mr Kakavas' licence to enter its premises had nothing to do with any concern that he was a problem gambler. According to Crown, that was not a consideration. Rather, the withdrawal of licence had everything to do with the fact that Mr Kakavas had by then been charged with another serious offence - armed robbery. If indeed this crime had been committed, its victim was both a tenant of Crown and a high roller patron of the Casino. In any event, the charge against Mr Kakavas was dismissed at the subsequent committal proceeding, and nothing further has come of it. As at June 1998, however, Crown had reason to fear that the alleged victim and one of the alleged perpetrators might meet on its premises. I find, therefore, that the withdrawal of licence was warranted. Despite Mr Kakavas' attempts, which he vigorously pursued until 2001, to have his licence restored, Crown did not finally give it back until January 2005. This was some five months before his return to the Casino as a patron - a return during which, over the following 14 months or so, Mr Kakavas turned over $1.479 billion (sic).

7 Mr Kakavas did more, in the period between June 1998 and the ending of his relationship with the Casino in August 2006, than merely present himself to Crown as a man whose gambling problems had been overcome. From about the year 2000 he also held himself out to the world as a very successful Gold Coast businessman who, in the years following his concentration on property development in Queensland, had managed seamlessly to combine the roles of real estate salesman and recreational gambler. And this picture had more than an element of truth. Admittedly, he had during this period self excluded from a number of casinos, and the police had intervened to exclude him from the Star City Casino in Sydney. But he attributed his self-exclusion from Burswood Casino in Perth to a disagreement with staff rather than to a gambling problem, and - it seems - did not broadcast the other exclusions. Crown nevertheless knew about at least some of them.

8 Despite his agreement to contact Crown with any concerns he might have about the revocation of his self-exclusion order, Mr Kakavas did not at any time before he recommenced gambling at the Casino suggest, or even hint, to Crown that he had any gambling problems. Indeed, for about three years following June 1998, he applied repeatedly to resume his patronage of the Casino; and when that failed, he applied for permission to enter the remaining areas within the Crown complex. This was at a time when he had independent reasons for wanting such permission. Auctions of real estate were conducted there, and Mr Kakavas - who was then a real estate consultant - had a commercial interest in attending them. Until January 2005, his requests were denied.

9 By the end of 2004, however, Crown's opposition to Mr Kakavas' attempts to return was wavering. Indeed, with the possible exception of one or two Crown executives, Crown then took the view that his return was to be encouraged. He was, to Crown's knowledge, a high roller at other casinos, including casinos in Las Vegas. It also knew, or at least believed, that he was wealthy. Crown therefore wanted his business.

10 It is this set of circumstances which now forms the core of the plaintiff's case. He maintains that, when his wealth and his journeys to Las Vegas came to Crown's attention, its previous indifference towards him transmogrified into a desire to exploit what it remembered as his addiction for the gaming tables. Crown, he asserts, therefore determined to prey upon that addiction by enticing him to return to Melbourne for as long and as often as it took for his fortune to fall into Crown's lap.

11 I do not accept this account. Although the plaintiff contends otherwise, Crown was in no position to prey upon him. Despite his attempts to persuade me to the opposite conclusion, he was not a person so helplessly entrapped by his love of cards that he found it impossible to resist Crown's attentions. On the contrary, as Crown was well aware, many other casinos were happy to accommodate Mr Kakavas and his money. Crown knew that, unless it offered him terms that matched those of the opposition, he would without a qualm ditch Crown for another willing suitor. Moreover, he had another and particularly potent, weapon. He could self-exclude. This, necessarily, gave Mr Kakavas a lot with which to bargain. He seized it.

12 It is true, and I so find, that Crown had in mind its earlier assessment of Mr Kakavas as a sometime problem gambler. It accordingly prepared a letter in which it had him disavowing any continuation of those problems. It asked him to sign that letter. He willingly did so. Crown also required that he obtain an assessment from a psychologist or a psychiatrist to the effect that he was not a problem gambler. Mr Kakavas, albeit grudgingly, acceded to this. He saw a psychologist (Ms Janine Brooks) on the Gold Coast, where he lived. She was unfamiliar with him. Although she was prepared to write a report about her consultation with him, she therefore declined to make a professional assessment. Much was made of this by counsel for Mr Kakavas; and it is the fact that, in the result, Crown allowed Mr Kakavas to resume his patronage of its Casino without first being furnished with any kind of expert assessment about his status as a problem gambler. On the other hand, the report prepared by Ms Brooks was the best possible evidence of what Mr Kakavas himself was asserting that time. His clear message was that any previous tendency towards problem gambling had been overcome. What is more, if it resurfaced, he had readily available the means to deal with it: he would again self-exclude. That is what he told her. He was perfectly capable of disclosing to her any vulnerability about which he was concerned. He did not.

13 Mr Kakavas told Ms Brooks the truth when he asserted, in effect, that he knew how to secure a self-exclusion order, and would do so if in his judgment his gambling problem re-surfaced. Yet he now contends (in effect) that Crown should have seen through Ms Brooks' entire report as false. It should have realised that he was a fraud. Indeed, it should have realised even more than that. It should have known - it did know - that he was living a lie. In particular, it should have known that, whereas he had demonstrated in the past a capacity to self-exclude, that capacity had somehow now completely deserted him.

14 Mr Kakavas contends that Crown concocted a predatory scheme with long-term implications. He does not allege that Crown sought to entice him into an occasional gambling foray. Such an allegation could not have been sustained. He would not have been especially attractive to Crown as a once in a while patron, because the odds were that the Casino would not benefit much from such patronage. Rather, Mr Kakavas' case is that Crown had a purely predatory purpose which it intended would be played out over the long term. It was to entrap him into becoming a regular visitor for as long as it took for him to gamble his fortune out of his hands and into the coffers of Crown. Then a triumphant Casino would tell him that, much as it valued his custom, it would be best if he put some distance between his empty wallet and a seat around its tables.

15 It is therefore not the plaintiff's case that he, a person with limited financial capacity, was inveigled into a few gambling transactions with Crown. Rather, it is his case that he, being helpless to resist the lure of the gambling salon - indeed, being so helpless that he could not even take the straightforward path to self-exclusion - was enticed by Crown, and against his better judgment, to become a regular, long-term patron of the Casino, and to gamble there for as long as it took to exhaust his admittedly extensive funds.

16 This proposition cannot survive close examination. Crown was acutely aware, when contact was made with Mr Kakavas in late 2004, that in any negotiations which followed, he might not accept the conditions Crown wished to impose upon him; and that, if he came to that view, he would not recommence, or would withdraw, his patronage. He had available to him, and he was fully aware of, his right to self-exclude. And he, being fully alive to his negotiating strength, used the implied threat of the withdrawal of his patronage as a legitimate, but effective, negotiating weapon. There was none of the inequality of bargaining position about which Deane J spoke in Commercial Bank of Australia Ltd v Amadio[1], and which is of the essence of a claim that a person with a special disadvantage or disability has been unconscientiously exploited.

17 This case, then, depends upon the plaintiff being able to prove on the balance of probabilities that he could not resist the inducements deliberately and unconscientiously dangled before him by Crown. Captured by his pathological gambling addiction, he could not resist Crown's initial or any subsequent approach, even though he knew that in the self-exclusion process he had readily to hand a means of avoiding the consequences of his addiction.

18 The facts tell a different story. Between June 2005 and mid-August 2006, Mr Kakavas never suggested to Crown that he was other than financially capable of maintaining his high roller status, and keen to do so. Nor did he ever attempt to employ the self-exclusion mechanism. He contends that he was so much in the grip of his addiction that he was incapable of protecting himself even by this simple means. Yet he was quite capable of negotiating hard with Crown about the terms of his patronage, and of declining - not for a week or even a fortnight, but for the whole period between the end of January 2005 and the following 24 June - to visit the Casino when Crown refused to meet those terms. Mr Kakavas thus demonstrated a capacity to participate in the cut and thrust of offer and counter-offer, to reject certain Crown proposals and accept others, and to win terms more consonant with his wishes but which Crown was reluctant to concede. If he had that capacity, then it must follow that he also had the capacity to self-exclude. And if he could self-exclude, then Crown could not be said to have taken unconscientious advantage of him when seeking his patronage.

19 That there was relative equality of bargaining power is apparent from the history of the relationship between Mr Kakavas and Crown. Mr Kakavas had as his bargaining chip the implied threat that he would cease his patronage of the Casino if Crown failed to give him what he wanted. Crown negotiated on this basis. It never believed that it had Mr Kakavas in its power, so that his patronage of the Casino could be secured by an enticement or two. Because it wanted his custom, but knew that he could - and feared the he might - remove it, Crown was prepared to go some distance to reach terms acceptable to him.

20 Another difficulty for the plaintiff is that he has produced no evidence at all of any conspiracy by Crown to exploit him in the way about which he complains. He can point to no collective, or corporate, or even individual, decision to that effect. It is true that, in part, he relies on a valid proposition: that he had a gambling problem, and that Crown once knew about it. But his case also depends upon the invalid contention that, when he and Crown made contact in November 2004, Crown's motive was to exploit unconscientiously his disability to the point that he would become, and then continue as, a patron until his funds were exhausted, with Crown retaining his losses. The evidence cannot sustain the inference of corporate decision-making upon which his case relies.

21 Crown certainly wanted his custom. People like him fed its business. Crown executives, including the individual defendants, were involved in planning for his return as a high-rolling patron. But Crown had no conception of Mr Kakavas as suffering from any kind of relevant disadvantage. There was, indeed, no inequality of bargaining power, and no exploitation of, or any plan to exploit, any special disability from which Mr Kakavas might have been suffering.

22 Mr Kakavas was, at the end of 2004, legally disentitled from gambling at the Casino. There were two bases for that exclusion. The first was that his licence to enter the premises had been withdrawn by Crown in June 1998, and had not been restored. The second was that he had been excluded from the Star City Casino in September 2000 by order of the Chief Commissioner of Police of NSW, or his delegate. Following an amendment to the Victorian gaming laws which came into effect on 19 June 2002,[2] persons who are excluded from an interstate casino by an order of the kind made by the Commissioner in 2000 (designated by the Casino Control Act 1991 as an "interstate exclusion order") are automatically excluded from Victorian casinos as well.

23 There is another important consequence of an interstate exclusion order. It was introduced into the legislative scheme by the Gambling Regulation Act 2003. From 1 July 2004, any person who is the subject of such an order and who enters or remains in a casino, shall forfeit to the State all gaming winnings paid or payable to that person.[3]

24 Neither Mr Kakavas nor Crown appreciated that he was caught by these amendments. This was an omission on the part of both, but more particularly Crown. It was one of a number of examples of the lack of appropriate substance in Crown's protestations that it is a world leader in the promotion of responsible gambling (alternatively, if the claim is true, then other casinos leave even more to be desired).

25 Any casino that is serious about responsible gambling would ensure that it knew precisely who was and who was not subject to an interstate exclusion order. Crown knew enough about Mr Kakavas to know that gambling had presented problems for him in the past, and that he had been self-excluded from its own Casino. Indeed, it knew by no later than 5 November 2000 that the Star City exclusion order had been made. That, it is true, was before interstate exclusion orders had been invented; and when, on 19 June 2002, this species of exclusion entered the Victorian legislative scheme, no-one at Crown made the connection between that scheme and its effect on Mr Kakavas' right to enter the Casino. This is not surprising, since he was not then a Crown patron. Nor was he a patron when, on 1 July two years later, his right to retain any winnings was removed. Nevertheless, Crown should have made appropriate enquiries preceding the restoration, in February 2005, of his licence to enter the premises. Had those enquiries been made, the Star City exclusion order would have been rediscovered.

26 The fact that Crown was seriously careless does not, however, constitute a basis for any of the claims made by Mr Kakavas. Rather, he contends that Crown acted unconscientiously in allowing - indeed, encouraging - him to gamble at the Casino when it knew or ought to have known that he would be required to forfeit any winnings. Had he known the true position, he would of course have declined to have anything to do with the Casino. It would be madness to gamble when you could lose but could not win. He suggests that Crown was keenly aware of this, but failed to warn him for the very reason that Crown wanted his patronage.

27 This contention fails in the face of the evidence that Crown did not at any time bring to its collective mind the connection between Mr Kakavas and the interstate exclusion order which had been made in September 2000. In the absence of this connection, Crown cannot be guilty of taking unconscientious advantage of any disability from which Mr Kakavas suffered as a result of his ignorance of the effect in Victoria of the NSW order. In any event, Mr Kakavas did not forfeit his winnings. Consistently with its failure to appreciate the effect of the interstate exclusion order, Crown not only allowed Mr Kakavas into the Casino, but credited him with everything he won. He forfeited nothing. He therefore suffered no loss arising from the carelessness of Crown.

28 For these reasons, when read together with those set out in the balance of this judgment, Mr Kakavas' claim must be dismissed. Mr Kakavas having admitted that, if his claim should fail, he is indebted to Crown in the sum of $1,000,000, there must be judgment on Crown's counterclaim in that sum.

29 Out of an abundance of caution, I conclude this summary by stressing not only that it must be read with the balance of the judgment, but also that this litigation is concerned with a point of equitable principle as that principle is applied by the courts. It is not concerned with matters properly within the political sphere - such as setting general policies of responsible gaming. For very good reason, these are not within the courts' field of responsibility or power.

30 Nor is a general examination of Crown's conduct within the scope of the present litigation. Crown does present itself as a world leader in responsible gambling. Its relationship with Mr Kakavas does not give one any confidence that it deserves that status. On the other hand, his is one case among many. The Court therefore has no warrant to come to any general conclusions on this topic.

31 The plaintiff, Harry Kakavas, was once among the elite of Australian patrons of gambling casinos. He was the highest of this country's high rollers. And he spread his wings. His gambling took him from the Gold Coast not only to Melbourne, Sydney, Brisbane, Adelaide and Perth, but also to Las Vegas, Hong Kong, Macau and the Bahamas.

32 Very large amounts of money were necessarily involved: over a 16 month period he turned over $1.479 billion in Melbourne alone. He enjoyed some spectacular wins. In the end, however, he lost all he won, and more. Now he claims that some of those losses should be repaid by the defendants. The first of these is Crown Melbourne Limited, which operates a casino ("the Casino") in Melbourne. The second is John Williams, one of the casino's senior executives and, between 2 September 2003 and 16 March 2007, its Chief Operating Officer - International. The third is Rowen Craigie, its Chief Operating Officer between 1 April 2000 and 8 January 2002, and thereafter a director and, until 5 March 2007, its Chief Executive Officer.

33 $1.479 billion is a huge sum to pass through the hands of an individual person in the space of some 14 months. This is a point strongly made by Mr Kakavas. It demonstrates, he claims, the extent of his addiction. He also contends that the amounts he was wagering, together with the manner in which he engaged with his favoured game of baccarat and the betting with which it was and is associated, constituted an unmistakable sign, which Crown must have noticed, that it had on its hands a patron with a very serious gambling problem. Crown, he says, made the unavoidable observation. Having observed, Crown then came to the inescapable conclusion to which that observation necessarily gave rise; and having done so, resolved to exploit unconscientiously the disability thus revealed. And Crown actively took advantage of that disability to wring $20.5m. from Mr Kakavas. He contends that it should not now be permitted to retain those ill-gotten funds.

34 In these circumstances, I have devoted a large portion of this judgment to an analysis of Crown's records of Mr Kakavas' gaming activities at the Casino. One can through such an analysis gain an appreciation of the scale and speed of the plaintiff's playing of baccarat and the betting associated with it. More importantly, one can thereby better evaluate Mr Kakavas' claim that he was exploited.

35 The analysis to which I referred in the previous paragraph is preceded by an examination of the pleadings. This enables the reader to understand how each side pitched its case as the trial began, and to follow how that case maintained its connection with, or deviated from, the evidence subsequently called. I then outline the plaintiff's history insofar as it is relevant to the issues raised by the pleadings, and consider other relevant matters. Following the analysis of Mr Kakavas' behaviour at the gaming tables, I consider the evidence going to his status as a gambler and to the disability under which, as he alleges, he suffers. Crown's knowledge of that disability and its extent is examined, as is the alleged exploitation of it, before final conclusions are drawn.

36 Mr Kakavas contends that he has been subjected to the unconscientious behaviour of all three defendants. More than that, he has succumbed to it. According to his second further amended statement of claim ("the statement of claim") he has an uncontrollable and compulsive urge to gamble. He alleges, in paragraph 4 of the statement of claim, that in 1994 he told the Casino about this problem, and sought and obtained its "assistance, advice and counselling" about means by which he could avoid the temptation of resorting to its gaming tables. One of those to whom he turned - in about late 1994 - was William Horman, Crown's General Manager, Community Affairs. Mr Horman told the plaintiff that all Australian casinos operated a self-exclusion scheme, by which patrons could apply for an order from the casino forbidding their entry.

37 The issue was, by October 1995, a particularly pertinent one. On 10 November the previous year, the plaintiff had been charged with obtaining a financial advantage by deception. He made a full confession, and had pleaded guilty to having defrauded Esanda Finance Corporation Ltd of the sum of $286,125.65. That money, the plaintiff asserted both to the authorities and in the particulars under paragraph 4(2) of his statement of claim, had been used for gambling; and the episode was evidence of his being in thrall to his passion for baccarat. In those circumstances, and with a prison term being a distinct possibility when Mr Kakavas came up for sentence, the obvious step was to self-exclude. Any plea in mitigation would seem hollow unless the plaintiff, before the plea was heard, had removed himself from the temptation to repeat the fraud.

38 It was against this background that, on or about 8 November 1995, Mr Kakavas voluntarily applied to Crown for a self-exclusion order prohibiting him from entering, or remaining in, the Casino. The application was successful (as it was bound to be). As is asserted by paragraph 5 of the statement of claim, it was followed by a self-exclusion order issued by Crown. It is not in contention that the order was issued on 8 November. It is also accepted by all parties that Mr Kakavas did not gamble at the Casino again until June 2005, a period of almost 10 years.

39 Although the plaintiff was charged in November 1994, there followed a very long delay before he was sentenced. A principal reason for this - one not pleaded, but revealed in the evidence - was a deterioration in the mental health of the plaintiff. It was not until 23 January 1998 that Mr Kakavas was sentenced to two years' imprisonment, 20 months of which was suspended. He was released on 23 May 1998. On 3 June that year, he wrote to Crown with a request that his self-exclusion order be revoked. He pleads in his reply to Crown's amended defence to the second further amended statement of claim that the application was made at the suggestion of Mr Horman.

40 The application was successful. It was, nevertheless, a Pyrrhic victory. On 19 June 1998, at the same time that Mr Kakavas was handed the documents that confirmed the revocation of the self-exclusion order, Crown served him with a notice that his licence to enter or remain on any part of Crown's premises, including the Casino, had been withdrawn for an indefinite period.[4]

41 The facts surrounding the revocation of the self-exclusion order and the withdrawal of licence are not in dispute. Indeed, the plaintiff's written application for revocation of his self-exclusion is a document upon which (in paragraph 6(b) of its defence) Crown relies. It contains an acknowledgement that Crown had not encouraged Mr Kakavas to make the application, and that he would contact Crown immediately if, at any time, he had any concern about his decision to have the self-exclusion order revoked, or about his use of Crown's gaming facilities. It also releases Crown from any liability which may otherwise arise in connection with the revocation or the plaintiff's use of Crown facilities.

42 Mr Kakavas does not, in his reply or otherwise, contest the allegations made by Crown about the wording of the application to revoke. Nor is there any challenge to the propositions, put in paragraph 6 of Crown's defence, that the application was accompanied by an opinion in support provided by a consultant psychologist named Timothy Watson-Munro, and that, at the time the application was made, the plaintiff was facing a charge of armed robbery. In his reply, however, the plaintiff pleads - as was the fact - that this charge was dismissed at the conclusion of his committal proceeding in late 1998.

43 The statement of claim (by paragraph 8) then turns to September 2000. In that month, as the parties accept, the Chief Commissioner of Police of New South Wales, through a delegate, issued an order excluding the plaintiff from entering or remaining in the Star City Casino in Sydney. At that time, such an order had no impact on interstate casinos. On 19 June 2002, however, s. 12 of the Gaming Legislation (Amendment) Act 2002 came into operation. It introduced into the Casino Control Act the concept of an "interstate exclusion order", or "IEO", into which category the New South Wales order of September 2000 squarely fell. By this means, Mr Kakavas became subject to an IEO, and also became thereby subject to the statutory regime applicable to it. Among other things, he was from 19 June 2002 (and remains) prohibited from entering or remaining in the Casino, and Crown was (and is) obliged to include his name in a constantly updated list of names of persons who are so prohibited. The prohibition remains in place until revoked by the person who imposed it. Until that time, no promotional material relating to the Casino may knowingly be sent or directed "by any means" to the excluded person.[5]

44 Another effect of an IEO (or any other exclusion order) was pleaded by all parties - in paragraph 10(8) of the statement of claim, and paragraph 10(b) of each of the defences. It was also closely examined by both sides in submissions in this case. If, after 1 July 2004 (incorrectly said in the statement of claim to be 19 June 2002), a person gambles at a casino from which he or she is excluded then, by s. 78B(2) of the Act, all winnings paid or payable to that patron must be forfeited to the State (for payment into the Community Support Fund under the Gambling Regulation Act 2003).

45 Although the allegations of self-exclusion (made in paragraph 11 of the statement of claim) are not admitted, the plaintiff in fact (as I find) made an application to self-exclude from Jupiters Casino on the Gold Coast and from the Treasury Casino in Brisbane on 6 August 2000; from the Burswood Casino in Perth on 6 April 2001; and from the Sky City Casino in Adelaide on 7 September 2004. He was in each case successful, as he was bound to be.

46 According to the statement of claim, from about July 2004 Mr Kakavas has suffered from a psychiatric condition known as "pathological gambling". This is said to be "characterised by a continuous impairment of his ability to control the frequency with which he gambled and the amount of money that he wagered."[6] It is also alleged that "the plaintiff's ability to make rational decisions concerning the frequency with which he gambled and the amount of money that he wagered was significantly impaired." While not admitting the plaintiff's condition, the defendants do accept that, after July 2004, Crown was "aware that there was literature identifying a condition described as pathological gambling".[7] The individual defendants make a like, but not identical, admission.

47 Paragraph 15 of the statement of claim makes allegations about the width and breadth of the defendants' knowledge. It covered, according to the plaintiff, all the pleaded facts going to the plaintiff's gambling history with Crown, his relationships with senior Crown officers, his self-exclusion from Crown and other casinos, and his exclusion from the Star City Casino - together with the legislatively-imposed consequences of the latter exclusion. The defendants, in response, admit knowledge only of the plaintiff's patronage of the Casino, his self-exclusion and its revocation, and the withdrawal of his licence. In his defence, Mr Craigie answers the allegations made against him in paragraph 15A of the statement of claim, a paragraph directed specifically to him, by disavowing knowledge of any of the details of either the self exclusion or its revocation; and he adopts the same approach to the allegation that he knew about the withdrawal of licence. He also limits his admission about knowledge of the plaintiff's patronage of Crown; he accepts no more than that he knew that it commenced "some time prior to 2004".[8]

48 By paragraph 16A, the statement of claim next alleges that, during the first half of 2004, the plaintiff lost "enormous" amounts of money while gambling recklessly and excessively in Las Vegas. This, according to the statement of claim, "was indicative of a person suffering from pathological gambling" with its consequent loss of ability to control the frequency, and the amounts, with which he gambled. The defendants admit that the plaintiff gambled at the place and during the period specified, but do not otherwise make any admissions to these allegations.

49 Details of the extent of the defendants' knowledge about Las Vegas, about the plaintiff's exploits there, and about his vulnerability as a pathological gambler, are the subject of paragraph 16 of the statement of claim. It is a long paragraph, and it makes many allegations. Among them is the charge that each of the defendants knew not only of the fact of the Las Vegas visits and their purpose, but also of the reckless and excessive gambling in which Mr Kakavas then indulged, and of the special disability - pathological gambling, with all its associated symptoms and behaviours - which was indicated by this reckless and excessive conduct. The defendants further knew that the plaintiff had previously sought Crown's assistance in overcoming his problem gambling, had self-excluded as a means to that end, and as a result of his compulsion to gamble had defrauded Esanda. They knew that he "would be vulnerable to approaches by the defendants to recommence gambling at the Casino, and would be easily exploited into recommencing gambling at the Casino."[9] They knew that he did not seek to have restored his right to enter the Casino. If he did return, he would, as the defendants knew, engage in extravagant gambling over an extended period. In particular they knew that, were he permitted to place bets as high as $300,000 per hand, the dam would burst; and money - his money, in "enormous amounts"[10] - would flow into the depths beyond, where Crown would be waiting to gather it in. In these circumstances, he was - again, as the defendants knew - unable to meet the requirements which applicants for revocation of self-exclusion orders must meet; in particular, that Crown be provided with a letter from a properly qualified expert to the effect that his gambling problems had been overcome.

50 Paragraph 16 then turns to the Star City exclusion. The defendants, it claims, knew about it. They also knew that, as a consequence of that exclusion and of the relevant legislative amendments, the plaintiff was not only prohibited from entering the Casino, but also that all his winnings there would be forfeited to the State.

51 Consistently with their position in relation to paragraph 16A of the statement of claim, the defendants admit none of this, except their knowledge of the Las Vegas gambling and except to the extent that relevant admissions have been made elsewhere in their pleadings. They likewise deny the allegations contained in paragraphs 17 and 18 of the statement of claim.

52 Those paragraphs are preceded by the heading "The scheme designed to lure the plaintiff back to the Casino". Paragraph 17 alleges that, in or about late 2004, the defendants devised and gave effect to a scheme "to exploit and take advantage of the fact that the plaintiff suffered or may have suffered from pathological gambling ... in order to induce [him] to recommence gambling at the Casino". Crown, in its defence, seeks to meet this head-on. It alleges that, in or about late 2004, Mr Kakavas took the initiative by himself applying for re-admission.

53 It is not in dispute that such an application was made, and that it was accompanied by two letters. One was dated 9 December 2004 and signed by Mr Kakavas. It is set out in the particulars under paragraph 18 of the statement of claim. In it, Mr Kakavas expresses a wish to once again be permitted to enter the Crown precinct, states that he no longer has any problems with his gambling, and refers to "a letter from my psychiatrist/psychologist" which, it says, is "enclosed".

54 In fact, no letter was enclosed. Nevertheless, a Gold Coast psychologist did provide a letter, albeit that she was not Mr Kakavas' psychologist, and albeit that she never made any assessment of him. In a letter dated 23 December 2004 from a psychologist named Janine Brooks, Crown was told that the plaintiff presented to her on 20 December 2004. He sought an assessment but, since she had never seen him before, she declined to give one. She did, however, state that Mr Kakavas "explained that he was a compulsive gambler between the years of 1990 to 1998". Since that time, he had turned his life around. The letter continued: "He states that he has conquered the gambling problem and if he ever had a relapse of this compulsion he would again self-exclude himself from the Casino".

55 Both sides rely on this correspondence. The plaintiff contends that the 9 December letter was composed by Crown and presented to him for signature at Coolangatta airport. He signed it not because it was true, but because Crown had indicated to him that it was part of the necessary preliminaries for his return. And it was, as he alleges in paragraph 4 of his reply, prepared as part of the exploitative scheme described in paragraph 17 of the statement of claim. The letter of 23 December from Ms Brooks was forwarded by him to Crown because that too, having been obtained at the suggestion of Crown, was part of the process decreed by Crown to be necessary. Even so, its terms were not such as to support an application to be allowed to return to the Casino as a patron, and it therefore should not have been employed as if it did.

56 Crown, by contrast, puts the correspondence forward to bolster its assertion that, far from being unwilling, or even reluctant, to return to the Casino as a patron, Mr Kakavas asked Mr Horman to effect the revocation of Crown's withdrawal of his licence, and used the letters in support of this approach. In its answer to the allegation in paragraph 18A that Crown knew of the deficiencies in Janine Brooks' letter, Crown asserts that it was written to support the plaintiff's application to revoke the withdrawal of his licence to enter the Casino, and obtained by him for that purpose. Otherwise, the defendants deny the allegations in that paragraph (which, as I note in passing, follows paragraph 18, whereas paragraph 16A precedes paragraph 16; and this explains the order in which the allegations they make are dealt with here).

57 I referred in paragraph [43] above to the fact that (by s. 78A of the Casino Control Act) a casino operator must not knowingly direct any promotional material to anyone subject to an exclusion order (which now includes an IEO). Paragraph 19 of the statement of claim alleges three separate breaches of this provision. One was constituted by an invitation to attend the 2005 Australian Men's Open Tennis final. Crown responds with a denial; but neither the fact of the visit nor the fact that it was Crown which issued the invitation (whether on its own initiative or at the request of Mr Kakavas) was in dispute at the trial. I therefore take it that Crown simply denies the characterisation of the invitation as "promotional material". It is not alleged that Mr Kakavas gambled when at the Casino on that occasion. On the contrary, the undisputed evidence is that he did not. Indeed, Mr Kakavas in his reply asserts that "Crown did not permit the plaintiff to gamble at the Casino until about 24 June [11]05".11 He and friends of his were, however, not only provided with tickets to the tennis final, but also (or so he alleges) received complimentary accommodation, food and drink at the Casino, and the use of a limousine.

58 The second of the three allegations of breach is pleaded by paragraph 19(2) of the statement of claim. It is there alleged that, during the visit to the Open, Mr Kakavas at the invitation of Crown and in breach of ss. 77 and 78 of the Casino Control Act, entered the Casino's private gaming salons. These sections forbid a person the subject of an exclusion order from entering or remaining in a casino, and require Casino officers to remove such a person should he or she enter.

59 Each defendant denies each element of this (the second) allegation.

60 Crown also denies the third "promotional" allegation. It is made by paragraph 19(3), and is that, in breach of s. 68 of the Casino Control Act, lines of credit were - on specified dates - extended to the plaintiff. Then, by paragraph 20A, the plaintiff claims that, in order to induce him to continue to gamble at the Casino, Messrs Craigie and Williams approved an application made by him on 2 July 2005 for a cheque cashing facility, and subsequently approved his applications for changes to that facility.

61 Crown's response to these allegations is elaborate, and is set out in paragraph 19(c) of its defence. It there pleads (in effect) that, pursuant to s. 68, it is entitled to establish a deposit account to which are credited deposits made by the patron in whose name the account is held. Crown is thereafter entitled to issue to the patron either money or gaming chip purchase vouchers not exceeding in value the amount in credit; and it may also issue such vouchers to the patron in exchange for a cheque of equivalent value. These entitlements were, on Mr Kakavas' application, exercised in relation to him on a number of specified occasions.

62 One of these occasions was on 2 July 2005. The plaintiff then (according to paragraph 19(c)(iv) of Crown's defence) made an application for a "cheque cashing or facility limit change". This, on its acceptance by Crown, re-activated a cheque cashing facility which in 1994 had been established for Mr Kakavas. Having done that, Crown accepted a cheque from the plaintiff drawn in the sum of $345,000, and issued him with gaming vouchers to that value. On 4 July, after Mr Kakavas had "made a telegraphic transfer of funds to the first defendant", Crown returned his $345,000 cheque.

63 The plaintiff in his reply and defence to counterclaim takes issue with this account. The story, as recounted in paragraph 10 of that pleading, is that on 1 July or thereabouts, he transferred $1m to Crown as the pool from which he intended to fund his gambling. It is known in the industry as "front money". The immediate source of these funds was Mr Kakavas' account with the Commonwealth Bank. A standard "Premium Player Agreement" was then made by him with Crown. It did not include the provision of a cheque cashing facility, the benefit of which Mr Kakavas therefore did not then have.

64 According to the reply and defence to counterclaim, with some added colour injected during the trial, the plaintiff had, by the morning of 2 July, lost both his front money and an additional $200,000 which Crown had furnished to him as a rebate on his losses. But Crown's blood was up - or, as the plaintiff contends, it wanted Mr Kakavas to continue his run of bad luck. So Howard Aldridge, a Crown executive who at that time was standing in for John Williams, approached the plaintiff with a question: "How much money could he [the plaintiff] kick in to continue gambling?" Mr Kakavas replied that he could contribute $345,000. Mr Aldridge said that, if he made that contribution, which should be by bank cheque made payable to "PBL Finance", Crown would add "the same amount as gambling credit". This would give Mr Kakavas $690,00 with which to continue his gambling.

65 The reply goes on to allege that the plaintiff fell in with this plan. On that morning, 2 July 2005, the plaintiff handed to Crown a bank cheque made out as requested. He was then provided with gaming chip purchase vouchers and chips valued at $690,000. He subsequently did Crown the favour of losing the lot. Before the bank cheque was presented for payment, however, Mr Kakavas paid, by other means, the full amount of $690,000. The PBL cheque was for this reason returned to him.

66 The individual defendants do not plead to paragraphs 19(1) or 19(2) of the statement of claim. They do, however, respond to the allegation made in paragraph 20A that they approved Mr Kakavas' application for a cheque cashing facility, and thereafter approved a series of financial transactions to which he was also a party. They each admit that they were among those Crown employees who between July 2005 and May 2006 were authorised to give such approval, and that they subsequently did so in accordance with Crown's standard operating procedures (which, according to particulars supplied by all three defendants, had been approved by the Victorian Commission for Gambling Regulation or "VCGR"). Crown makes like admissions. All three defendants otherwise deny the allegations made in paragraph 20A.

67 Other inducements - in addition to the tickets to the Australian Open, the invitation to visit the private gaming salons, and the extension of credit - are alleged by paragraph 20 of the statement of claim to have been proffered to the plaintiff by Crown. They include the use of the Crown jet on approximately 30 occasions (including trips to Manila); receipt of boxes or carry bags of cash (on about 11 occasions, the amounts ranging from $30,000 to $50,000); and complimentary accommodation, food, drink, tickets to "events" (a soccer match in May 2006 between Australia and Greece is mentioned in the particulars), butler services and "limousine transportation". The particulars also specify an arrangement pursuant to which Crown promised that for every $100,000,000 turned over by the plaintiff, up to $400,000,000, Crown would give Mr Kakavas $100,000.

68 Crown admits much of all this: the jet (14 - not 30 - occasions, plus two Manila flights and one internal Philippines journey); tickets to events; and food, beverages, limousine transport, accommodation and butler services. It admits, in addition, that cash was paid as alleged, although it explains those payments in terms of complimentary allowances to which Mr Kakavas was contractually entitled. The allegations made by paragraph 20 of the statement of claim are otherwise denied.

69 Harry Kakavas was, from September 2000, subject to an interstate exclusion order. From 19 June 2002, he was thereby, and by force of s. 77(3) of the Casino Control Act, forbidden to enter or remain in any casino. It is alleged by paragraph 21 of the statement of claim, and denied by paragraph 21 of the first defendant's defence, that Crown nevertheless procured his entry into the (forbidden) territory of its Casino.

70 From the allegations in paragraphs 17-20 of the statement of claim, the plaintiff proceeds to an assertion that, induced by the conduct of Crown as described in those paragraphs, he recommenced gambling on about 24 June 2005 and continued to gamble at the casino until "about August 2006".[12] Crown in response admits that the plaintiff gambled at the Casino between 24 June 2005 and 17 August 2006, but denies the inducement.

71 The plaintiff and Crown experienced both sunlight and sorrow during those 16 months. In the end, however (as, in effect, paragraph 23 of the statement of claim asserts) the plaintiff paid a net $36,712,717.00 (approximately) for the pleasure of losing bets while being a Crown VIP; and Crown benefited in the same sum for the pleasure of having him as a patron. Crown demurs. According to its defence, the true figure is $20,539,484. This is calculated on the basis that Mr Kakavas' gross losses amounted to $30,216,720, but he received rebates totalling $9,677,236. The individual defendants plead the same figures. In paragraph 13(1)(b) of his reply, the plaintiff reduces the amount of the claimed net loss to "approximately $30 million."

72 The next allegation in the statement of claim is to be found in paragraph 24 and falls under s. 2.3.5 of the Gambling Regulation Act 2003. It is that, by devising the (alleged) scheme to lure the plaintiff to the Casino by the exploitation of his special disability, and by putting it into effect, Crown engaged in ill-practice. The consequence of this is spelt out in the section. It is that Crown is taken as having obtained those winnings by false pretences with intent to cheat or defraud - something Crown denies.

73 Mr Kakavas' status as an excluded person is the subject of paragraph 25 of the statement of claim. The plaintiff there alleges that ("in circumstances where Crown was aware of this matter and the plaintiff was not aware of this matter") Crown failed to tell him that, being the subject of an IEO, it was unlawful for him to gamble at the Casino.[13] Nor did Crown provide him with the (very important) information that, if he entered the Casino and, while there, gambled and won, he would forfeit his winnings to the State. To add insult to these injuries, Crown procured Mr Kakavas' re-entry "when it knew that there was no material from a suitably qualified professional person supporting the plaintiff's ability to control his gambling urges and condition, and that the plaintiff had not satisfied any of Crown's own requirements for revocation of a self-exclusion order."[14] At the same time, "Crown procured and encouraged the plaintiff to gamble at the Casino when it knew of the plaintiff's condition and gambling history."[15] As a particular of this knowledge, the statement of claim alleges that, during a conversation with the plaintiff "in about the middle of August 2006, Williams on behalf of Crown told the plaintiff to have a rest from gambling and seek professional help."[16] The paragraph concludes with the statement that among the "special inducements" offered by Crown were cash payments and "the ability to wager bets of $300,000 per hand and a rebate of 20% on all losses."

74 Of the three defendants, only Crown makes a substantive response to any of this. The others simply contend that these allegations are not directed at them. Crown, however, admits that it did not bring to the attention of the plaintiff either the unlawfulness of his gambling at the Casino, or the requirement that he forfeit his winnings. It contends that it was not required to do so. It otherwise denies the allegations contained in paragraph 25 of the statement of claim. In his reply, the plaintiff refers to the provisions of ss. 76(1) and 78AA(2) of the Casino Control Act which imposed relevant duties on Crown in relation to the plaintiff as a patron who was subject to an interstate exclusion order.

75 Under the heading "Unconscionable Conduct", which appears above paragraph 26 of the statement of claim, the plaintiff alleges (and each of the defendants deny) that, because he suffered from the condition known as pathological gambling, and from the impairments associated with it, he "was at a special disadvantage in his dealings with Crown in that his ability to make decisions and judgments as to what was in his own best interests, and to act accordingly was significantly impaired."[17] Each of the defendants either knew this or "knew of facts which would cause a reasonable person to form the opinion that it was more probable than not that the [pleaded] facts ... were true."[18] Crown's conduct was therefore both unconscionable at common law and in contravention of s. 51AA of the Trade Practices Act 1974 (Cth). Had it not been for such contravention, Mr Kakavas would not have entered the Casino, would not have gambled, and would not have lost.

76 Each defendant seeks to answer the proposition that the plaintiff was prohibited from entering or remaining in the Casino. Each seeks, in paragraph 31A of the relevant defence, to do so by alleging that, if he was so prohibited, then each time he entered the Casino between January 2005 and August 2006 he was in breach of the Casino Control Act - and for that reason disentitled from obtaining any relief "in respect of gaming losses he [then] incurred". In his reply, Mr Kakavas alleges that he told Crown of his exclusion from the Star City Casino: he told Mr Horman about this on about 14 November 2000, and on 22 December that year Mr Horman forwarded (by email) the same information to Mr Craigie. Again, in late 2004 or early 2005, Mr Kakavas (as he contends) spoke to Mr Williams about his Sydney exclusion. He had a like conversation with Mr Horman at about the end of January 2005.[19]

77 The statement of claim concludes with allegations that, in contravention of the Trade Practices Act, each of the two individual defendants aided, abetted, counselled or procured, and was directly and knowingly concerned in, Crown's breaches of the Act. These allegations are denied.

78 The first defendant has a counterclaim. It opens with a reference to its 2006 "cheque cashing facility". This, it alleges, had certain terms which governed its operations. These are set out at paragraph 34 of the pleading. These, however, do not appear to be particularly relevant. The cause of action upon which the counterclaim is based is simply that, on or about 11 August 2006, "Crown accepted a cheque from the plaintiff made payable to Crown in the amount of $1,000,000 ... and issued to the plaintiff gaming chip purchase vouchers of [an equivalent value].[20] On presentation, however, the cheque was dishonoured. Crown therefore claims the sum of $1,000,000, together with interest at the appropriate rate calculated in accordance with the cheque cashing facility.

79 The plaintiff admits that the $1,000,000 has not been paid, but denies any liability to do so.

80 On 30 June 1994, the Casino opened its doors for the first time. Construction of the building which was to become its permanent home was not then complete, so the Crown Galleria was pressed into temporary service.

81 Harry Kakavas was one of Crown's first patrons. On 6 July 1994, he was provided by Crown with a cheque cashing facility (with a limit of $30,000). At about the same time he was issued with an identification number (no.1558) which he thereafter retained throughout his patronage. It was also about this time that he first met the second defendant, John Williams, who was then a trainee blackjack dealer as well as a host in one of the Galleria's more refined gaming areas: the Oak Room, where gentlemen were required to wear a jacket and tailored trousers.

82 The evidence is that the plaintiff's gambling had already spilled into trouble. As he told a consultant psychologist, Mr Tim Watson-Munro, in early 1994 he had gambled and lost some $110,000 of his father's money; and in May that year he commenced, and over a three month period continued, to defraud Esanda Finance Corporation Ltd of a total of about $286,000.

83 It was not long before the fraud was discovered. On 10 November 1994, Mr Kakavas was interviewed by the Victoria Police. His evidence is that, during the interview, he made "full and frank admissions". Moreover, following that interview, he (as he said in his evidence) told Mr Howard Aldridge - who was then the manager of VIP casino operations - about his involvement in the fraud, and that he was not in a position to pay about $47,500 then owing to Crown. He also told Mr Aldridge that the fraud had been committed "because I had a gambling problem and I found it very, very difficult to resist the temptation of the gaming tables."[21] Mr Aldridge maintained that he was unable to recall speaking to the plaintiff in October and November 1994 about the latter's paying three cheques totalling $47,500,[22] although he agreed that it was his role at the time to deal with such matters. He denied that the plaintiff told him anything about having a gambling addiction; nor did he have any involvement in the plaintiff's self-exclusion application.[23]

84 The plaintiff was duly charged. He was, however, granted bail - one of the conditions of which was that he not enter the Casino. For reasons not explained to me, this condition was subsequently removed; and Mr Kakavas took advantage of his new birth of freedom. He resumed his gambling career at Crown. Consistently with the dictates of fate, he continued to lose.

85 It was at Crown, in early 1995, that the plaintiff first met Mr Bill Horman, who was then Crown's Head of Security. Mr Horman had been asked by Crown's chairman, Mr Lloyd Williams, to deal with Mr Kakavas after the latter had filed a subpoena for Mr Williams to give evidence at the application to vary his bail conditions. Mr Horman's account of his first contact with the plaintiff was in the following terms:

The initial contact involved me introducing myself to Mr Kakavas, telling him what my role was, advising him that I understood that he had subpoenaed the chairman and that the chairman wanted me to deal with him and deal with the matter.[24]

86 It is submitted on behalf of the plaintiff that Mr Horman was so often the point of contact between Crown and Mr Kakavas that the former's knowledge "was the company's knowledge under the primary rules of attribution."[25] I accept that that is so. What Mr Horman knew about the plaintiff, Crown also knew. The same is true of the second and third defendants (Messrs Williams and Craigie) as well as Mr Aldridge. In 2004, Mr Aldridge was Crown's Senior Vice-President of Domestic Marketing.

Plaintiff's Self Exclusion from Crown and Reports of Mr Watson-Munro

87 Meanwhile, back in 1995, the criminal trial lay somewhere over the horizon. A firm of solicitors (Pryles & Defteros) were retained to act for the defence. On 8 November 1995 the plaintiff applied for self-exclusion from the Casino.[26] The application was witnessed by Mr Peter Pryles of that firm, and by Mr Horman. The self-exclusion order was made by Mr Horman that same day, and served at 5.10pm in the presence of Mr Pryles.[27]

88 There is some debate about who suggested the self-exclusion process, and in particular, the role that Mr Horman played. According to the plaintiff, it was at one of the three or more meetings which the plaintiff had with Mr Horman during 1995 that the latter told him about Crown's self-exclusion program. Mr Kakavas gave evidence about the discussion which followed. He said:

I basically opened up my heart to him and basically explained to him that I was borrowing funds that I couldn't repay, that I was stealing money that I should not be stealing and I said to him, "Bill, I don't know what to do, I feel trapped" and at one of those meetings during the course of 1995 he said, "Harry, we have an exclusion program at the Casino." By this time of course I had no idea what an exclusion program was because I had never self-excluded myself ever before from any venue. Mr Horman went on to say that the Casino offered ... a self-exclusion program to problem gamblers and he thought it would be a good idea if I was part of that program.[28]

89 Mr Horman denied that he and the plaintiff discussed any gambling problem the latter might have had, or that Mr Kakavas ever said that he had an addiction to gambling.[29] In relation to how the subject of the self-exclusion process arose, Mr Horman gave the following evidence:

I recall being contacted by Mr Defteros. He explained to me that he was acting for Mr Kakavas. He asked me to explain the self-exclusion program at one time and I went through that in detail with him. He also, and it could have been a further conversation, asked me if I would be prepared to go to his office for the purpose of carrying out the self-exclusion process.[30]

Mr Horman later gave a description in a memorandum prepared in 1998 consistent with his evidence about these events.[31] Mr Horman recalled that, at the meeting on 8 November 1995, Mr Defteros said something to the effect that the self-exclusion order would be put by way of mitigation at the plaintiff's forthcoming trial.[32]

90 On 19 September 1995, Pryles & Defteros referred Mr Kakavas to Mr Tim Watson-Munro. The plaintiff thereafter attended sessions with his new therapist "on a fairly regular basis".[33] In a report dated 12 March 1996 and addressed to the solicitors, Mr Watson-Munro wrote that Mr Kakavas first presented to him with a history of being charged with serious theft by deception "arising from a severe and untreated, until recent times, gambling addiction"[34] which had reached a "severe and pathological level".[35] He also suffered from significant emotional problems to the extent that at times he was in such a state of agitation that communication with him was difficult. In Mr Watson-Munro's opinion, the criminal charges faced by Mr Kakavas were brought about by "the delusional belief that he would be able to gamble his way out of debt and repay his father, as well as the capital that was fraudulently obtained from Esanda Finance."[36] He expressed the view that the plaintiff had made "some progress in relation to facilitating a remission in his gambling addiction during the course of treatment" and noted that he had received "some counselling from Mr Bill Horman ... and through discussions with him and myself have a complete ban placed upon his attendance at the Crown Casino and other casinos around Australia." [37]

91 According to the plaintiff, he told Mr Watson-Munro (and the other psychologists he consulted) that he was banned from the Casino and he had "asked Mr Horman if he could ban me from the other casinos throughout Australia."[38] He denied saying that he had banned himself from every casino in Australia. However, he agreed that he lied to Mr Watson-Munro when he told the psychologist that, over the previous twelve months, he had managed to curtail his gambling activities.[39]

92 In a further report, on this occasion dated 12 June 1996, Mr Watson-Munro recorded that the plaintiff had undergone treatment with a Dr Parekh at the Melbourne Clinic at Vaucluse Hospital. This included the administration of Valium. Mr Watson-Munro continued:

On a more positive note, it would appear that [Mr Kakavas] has continued to refrain from his strong desire to [gamble], suggesting that with ongoing treatment his prognosis is reasonable in relation to this consideration.[40]

93 Despite an annotation on Mr Watson-Munro's reports asking that they not be disclosed to the client without the author's permission, the plaintiff gave evidence that he saw both of these reports on about the dates they bear.[41]

94 According to the plaintiff, Mr Horman suggested that he see a psychologist, Dr Jack Darmody,[42] who was running a program for problem gamblers which was funded by Crown and known as the "Crown Assistance Program".[43] Mr Horman's evidence was that he did no more than hand the plaintiff a Crown Assistance Program brochure which had a contact telephone number on it. While Dr Darmody was likely the person "on the end of the phone of the number provided",[44] his name did not appear on the brochure, although Mr Horman may have mentioned his name during discussions held in Mr Defteros' office.[45] I accept that Mr Horman was instrumental in pointing Mr Kakavas in Dr Darmody's direction. At all events, the plaintiff saw Dr Darmody at least twelve times, at intervals of roughly a week or a fortnight, about his gambling problems. I am satisfied that Crown was the vehicle through which contact was first made.

95 Dr Darmody prepared two reports for Pryles & Defteros. They are dated, respectively, 17 July 1996[46] and 29 July 1996.[47] The plaintiff asserted in cross examination that they are, in part, fundamentally false - and that he takes responsibility for it. He says that he lied to Dr Darmody about the success of his treatment.[48] Dr Darmody's reference in his first report to the plaintiff's "considerable progress ... in that he is now abstaining from gambling" was, according to Mr Kakavas, wrong: far from abstaining from gambling, he continued (he said) to indulge throughout the period of his treatment.

96 Mr Kakavas contends that he had a motive for his mendacity. He wanted to continue to gamble,[49] and he feared that, if he told the truth, steps would be taken to force him to stop. Be that as it may, both Dr Darmody and Mr Watson-Munro were satisfied that an adjournment of his plea would afford him an opportunity to receive more intensive treatment. Dr Darmody was, in addition, of the view that further delay would enable Mr Kakavas to benefit from regular attendance at Gamblers Anonymous, and restore to Esanda the funds stolen from it.

97 In his second report Dr Darmody notes that, in the context of the plaintiff's anxiety and agitation, Mr Kakavas expressed "a fear of having no control over his life at the moment" and had an impaired ability to "address issues rationally and logically." He continued:

Until he is able to demonstrate the ability to address all aspects of his defence and maintain his emotional control while still accepting the fact that a custodial sentence is a possible outcome, I believe he will be unable to give detailed and reliable instructions to his legal representatives. It is difficult to attach any time interval to the change process, but I would suggest a delay until at least early October will be necessary.

98 Despite this, Dr Darmody expected that the plaintiff would "soon be able to approach the future with a much higher level of emotional control." He also noted that Mr Kakavas' motivation to abstain from gambling was "supported by his request to be banned from all major casinos in Australia." According to the plaintiff, this was a request that he had made to Mr Horman, even though he knew that in order to be banned he had to make his request to each and every casino in question.[50]

99 The plaintiff saw each of Dr Darmody's reports at about the time they were prepared. He also asserted that he not only showed them to Mr Horman but, because the latter indicated an interest, discussed them with him. Whether that discussion included references to what Mr Kakavas now claims were their false assertions about his abstinence from gambling is something he did not address in his evidence. I do not believe this. It seems to me to be highly unlikely that the plaintiff would have confessed to Mr Horman that Dr Darmody's optimistic assessments of Mr Kakavas' progress were based upon a body of lies consistently told to the psychologist. If, during treatment, Mr Kakavas' gambling continued unchecked, then he would not have refrained from telling his counsellor while at the same time confessing all to his confidant.

100 For his part, Mr Horman denied ever seeing any of the reports prepared by Dr Darmody - or, for that matter, any of those prepared by Mr Watson-Munro and Mr Healey.[51] I accept Mr Horman's evidence on this point. He also said that, although the plaintiff told him that he was under Dr Darmody's care, he never discussed the psychologist/patient relationship in detail. He did, however, speak to Dr Darmody from time to time about patients, including the plaintiff, who had consulted the psychologist under the Crown Assistance Program; but issues of confidentiality prevented any descent into detail. Mr Horman agreed that he knew that Mr Kakavas was seeing Dr Darmody regularly, but pointed out that - as he understood it - this was as a private patient, and therefore at the plaintiff's expense.[52]

101 During his cross examination it was put to Mr Horman that a reference to "update re Dr J Darmody" in notes he made of a conversation with the plaintiff on 14 August 1996 supported the plaintiff's evidence that he kept Mr Horman informed about the treatment he was receiving. Mr Horman's evidence about this entry, which in general I believe, was as follows:

I don't recall any details other than he had seen Mr Darmody and he went on to say he had seen someone else but at that stage, as my notes indicate, I was unable to continue [writing] details of what was being said and he went on to another topic.

...

I wrote "update" because he started to say he had been talking to Dr Darmody. I wrote the word "update".

Q: Mr Horman, "update" was your summary of what had happened, wasn't it?

A: No, it was my starting of what he may have been going to go on and talk about but didn't and went on to another matter which was another person who at that stage I couldn't even recall or record who [it was] and he then went on to a different topic.[53]

102 Mr Horman said that he and the plaintiff discussed the latter's admission to the Melbourne Clinic at the Vaucluse Hospital, but no mention was made in that context of any gambling problem.[54] The discussions they had related to why Mr Kakavas had either refused to go to the Melbourne Clinic, or went and refused to stay. The admission to that clinic was to deal with the plaintiff's mental and emotional state.[55] Mr Horman explained:

At the time I had concerns about his mental well-being. He displayed a number of symptoms which caused me concerns. He was also making serious threats against various people. He was also talking about self-harm or committing suicide.[56]

The plaintiff agreed in cross examination that while at Vaucluse Hospital, Dr Parekh was treating him for depression and anxiety, and was not treating him for any issues concerned with problem gambling.[57]

103 By a letter dated 24 August 1996, Dr Darmody referred the plaintiff to Mr Bernard Healey, a clinical psychologist who specialised in gambling related diseases. The letter referred to the plaintiff's "difficulties which have arisen as a result of an addiction to gambling." While Dr Darmody expressed the view that Mr Kakavas then exhibited "less emotional fragility" than when first seen, it was Dr Darmody's opinion that the plaintiff needed continuing treatment from someone who could represent him in court when his plea was heard.[58] Mr Healey gave evidence that he has dealt with around 1,000 problem gamblers over the course of 40 years of practice, a number of whom were referred to him "from the legal system where they had been involved in acts of dishonesty and fraud and had to face court in relation to those matters."[59] Around 50% of his work comprises giving evidence in court and providing reports for that purpose. Many of those court appearances and reports have been provided in support of a plea in mitigation of sentence. He agreed in cross examination that he could be described as "a psychologist who specialises in the forensic area".[60]

104 The plaintiff first consulted Mr Healey on 29 July 1996. In an unaddressed report prepared on 9 June 1997,[61] the psychologist noted that, at the time of his initial presentation, Mr Kakavas was too stressed and excitable to undergo testing. Subsequent consultations and testing took place through the remainder of 1996 and into early 1997. The result, according to Mr Healey, was "significant progress" and "continuing steady recovery ... strengthened over time." Mr Healey nevertheless concluded, on the basis of these consultations and after reading the police record of interview, that the plaintiff had become "a classical pathological gambler" who was "still very vulnerable to the lure of addictive activity and the precarious solace and support it provides". He also described the "illusion of control" which led the plaintiff to continue to gamble, despite substantial wins, in the hope that he could achieve the "big win" to enable him to repay the funds obtained from his father and from Esanda. He noted that the plaintiff's addiction -

... will remain with him for many years to come, that he will need to be very vigilant. There remains a residual level of anxiety, and a hypomanic trend still, which in the past had reached distressing proportions, where he had great difficulty controlling the impulsivity associated with his excitability, which of course was significantly exacerbated by the 'hype' of the casino environment.[62]

Mr Healey also observed that the plaintiff "has come to realise that any thought or suggestion of gambling is unacceptable in his case". Not only that, but he had taken steps to enforce a self imposed ban on casino attendance. As one result, "he hasn't gambled again", while as a second he was making restitution to Esanda. Mr Healey thought it significant that the plaintiff was "devastated by his actions to the extent where he voluntarily had himself banned from all casinos throughout Australia".

105 Having been told by Mr Healey that he was a classic pathological gambler, Mr Kakavas continued to see him for treatment "many, many, many times"[63] (in cross examination, however, Mr Healey accepted that no consultation took place between 9 June 1997 and the following November).[64] Mr Healey wrote a further report dated 15 January 1998, in which he recorded that Mr Kakavas had had telephone contact on several occasions and that he "has not been involved in any kind of gambling, indeed, his attitude, his more settled functioning and clearer objectives were seen as being consistent with absent gambling and maintained insight into the nature of his addiction."[65] Mr Healey described the plaintiff as being "at peace with himself" and having a "more settled lifestyle" and steady work.

106 The plaintiff acknowledged seeing these reports at about the time they were issued. Although he agreed that the statement, in the first of the two, that he had voluntarily banned himself from all Australian casinos was wrong, he did not bring the inaccuracy to Mr Healey's attention. He denied, however, being its source. Moreover, and notwithstanding his concealment of the fact from Mr Healey, he continued to gamble at Jupiters Casino on the Gold Coast throughout 1996 and 1997.[66] On 12 January 1998 he was at the Star City Casino for the same purpose [67].

107 By these actions, Mr Kakavas not only gave the lie to the Healey reports, but also exhibited behaviour which made a mockery of his relationship with his psychologist. He contends that this merely demonstrates the truth and extent of his illness. Indeed, if the evidence given by Mr Kakavas at this trial is to be believed, about the only statement in either report which was true was the reference to settled work. The plaintiff agreed that he had employment with a friend at the time. Contrary to the information given to Mr Healey, however, he was continuing to gamble, although not at Crown.[68]

108 Under cross examination, Mr Healey gave some important evidence. He agreed that, in June 1997, he formed the view that the plaintiff had learned "a valuable technique to prevent the exploitation of impulses to gamble ... not necessarily to control them but certainly to prevent their fulfilment."[69] This conclusion was, Mr Healey said, based on information given to him by the plaintiff, who told him about seeking to self exclude from all Australian casinos. Although Mr Healey understood (incorrectly as it turns out) that the plaintiff had ceased to gamble, his evidence was that he nevertheless continued to regard the plaintiff not only as a pathological gambler,[70] but uppermost in the scale of those who were.[71]

109 The reports prepared by Mr Healey were provided to Judge Wodak during the plea in the County Court on the plaintiff's behalf in relation to the eight counts of obtaining property by deception. Although he did not give evidence at the plea or attend court, Mr Horman prepared a statement that may have been (but perhaps was not) tendered.[72] In that statement Mr Horman refers to concerns he had "over a period of time" in relation to the plaintiff's well-being, including him speaking of committing suicide. He raised these with Mr Kakavas' solicitors, and later with Mr Watson-Munro. Under the heading "Self-Exclusion" Mr Horman stated:

Knowing of Mr Kakavas' inclination for gambling and what appeared to me to be his state of mental health, I suggested to both him and his solicitors that he should consider making application to have himself Self-Excluded from the Casino ...

I also made arrangements for him to receive counselling from Dr Jack Darmody from Access Programs who has extensive experience in dealing with persons with problems associated with gambling activities.[73]

In very early days I had sincere concerns in relation to the state of his mental health. In more recent times his mental well-being, accepting that I do not [have] any professional qualifications in this field (but I've been around for a while and dealt with many persons under various stressful situations in various mental conditions), appears to be greatly improved and stable.[74]

110 Mr Horman gave evidence that at that time he did not have a view about whether the plaintiff was a pathological gambler, although he knew he had "an inclination to gamble."[75] He did not think that he had an addiction to gambling or an inclination to gamble uncontrollably.[76] He maintained that the plaintiff did not mention to him any gambling problems during their various discussions at this time; his focus was on "other matters that seemingly were more pressing to him." And while Mr Horman was aware that Mr Kakavas was consulting with Dr Darmody, Mr Watson-Munro and Mr Healey, he said he did not know "if one or any of the three of them were treating him for other issues outside of gambling."[77]

111 Judge Wodak sentenced Mr Kakavas on 23 January 1998. In his sentencing remarks his Honour noted that it was not in issue that Mr Kakavas gambled a substantial part of the $305,900 loan funds at Jupiters Casino and at the temporary Crown Casino. He took into account as material factors in sentencing that Mr Kakavas had "demonstrated a number of positive signs of rehabilitation".[78] Those positive signs included partial restitution of the funds obtained from Esanda, remorse, his employment for two years, his ongoing treatment and his self-exclusion order. His Honour made it clear that if the plaintiff were to avoid a relapse, "you must remain vigilant and disciplined."[79] Mr Kakavas was sentenced to two years imprisonment, eighteen months of which was suspended. The effect was that he served four months. At the plaintiff's request, Mr Horman visited him twice during that period to discuss the possibility of an early release.[80]

112 Mr Kakavas was released from prison on or about 23 May 1998. He gave evidence that within days of his release he arranged to meet Mr Horman to seek his assistance in relation to information he received while he was in gaol that the police suspected him of involvement in another serious crime. This is a reference to an armed robbery in which the plaintiff and others were said to have been involved; and there was a suggestion that Mr Kakavas had gambled the proceeds at the Star City Casino in Sydney on the same evening as the offence. It took place on the Shark Fin restaurant, owned by Mr Jimmy Sui, a tenant of Crown and a high roller gambler who played in Crown's Mahogany Room. As a result of this incident there was (it was said) evidence of considerable animosity between the plaintiff and Mr Sui. Mr Kakavas told Mr Horman that he was innocent, and asked him if he would inform the armed robbery squad that he (the plaintiff) would be happy to be interviewed about the matter. The plaintiff, who was then living with his parents in Caulfield, said he was concerned to avoid a raid. Mr Horman agreed to speak to the armed robbery squad on his behalf. In the upshot, Mr Kakavas was charged with armed robbery, although at the subsequent committal hearing those charges were dismissed.

113 Following his release from gaol the plaintiff also sought to have his self-exclusion order revoked. The resultant Application for Revocation of Self Exclusion was dated 26 May 1998 but signed by the plaintiff on 3 June 1998. Among the matters to which the plaintiff was said to have agreed by signing the application was a requirement that he provide to Crown a written report from a suitably qualified professional advising that he did not have a gambling problem.[81] It also included not only an acknowledgement that Crown did not encourage him to seek the revocation but also an authority for Crown to discuss with any psychologist or psychiatrist who had provided a written report the grounds and circumstances surrounding his original application for self exclusion. It continued:

1. You have given this matter careful consideration and will contact Crown Limited immediately, if, at any time, you have any concerns about your decision to have your Self-Exclusion Order revoked and your use of Crown Limited's gaming facilities.
2. You agree to release and indemnify Crown Limited, its employees, agents and contractors from any liability which may arise in connection with the revocation of the Self-Exclusion Order and your use of Crown Limited's gaming facilities.[82]

This is an important document. It is strongly recommended that, prior to signing this document - below - you discuss this matter with your legal advisor, counsellor and members of your family if you have not already done so.

114 In support of that application, the plaintiff contacted Mr Watson-Munro and told him that he wanted to be allowed back into the Casino primarily for entertainment purposes. He asked whether Mr Watson-Munro would provide Crown with a relevant psychological assessment. During the subsequent consultation, Mr Watson-Munro took the plaintiff through the application for revocation of self-exclusion, which the plaintiff then signed on 3 June 1998. Mr Watson-Munro also provided a report dated 3 June 1998 addressed to Crown's Incidents and Exclusions Supervisor, Mr Jack Troost, in which he stated that since the time when the plaintiff had applied for the self-exclusion:

... Mr Kakavas has involved himself in intensive psychotherapy with me. Treatment has been very successful in the context of Mr Kakavas now no longer feeling the pathological compulsion to gamble which had plagued him in earlier times.[83]

He stated that he now feels far more relaxed about the prospect of social gambling and as a consequence of therapy, feels that he now has both the insight and requisite behavioural skills to maintain his involvement at the Casino at no more than that of a recreational gambler.[84]

115 The plaintiff said that he gave the signed application and the report to Mr Horman and asked him for his support in order to revoke the self-exclusion. Mr Horman explained that there was a process to be followed. It included consideration by a committee of which he was a member. On 8 June 1998 Mr Horman prepared a memorandum to Mr Troost which he copied in to a number of other Crown officers, including Mr Aldridge.[85] While Mr Horman noted that the plaintiff had received what he described (in inverted commas) as "treatment" from Mr Healey and Dr Darmody, the general tenor of the memorandum is sceptical of the plaintiff's claim to have a gambling addiction for which he was receiving such "treatment". In the memorandum, Mr Horman referred to a conversation he had with the plaintiff that day in which Mr Kakavas asked him to "put in a word for him with Mr Troost". The memorandum continued:

... and he went on to explain and threaten that if Crown denies his request for revocation, he will then sue Crown for "breach of a duty of care" in that it was aware of his substantial losses at Crown, should have been aware of his "obvious gambling addiction" and were negligent in not taking steps to prevent his further deterioration and losses.

Mr Kakavas, many months ago, mentioned to me that he was aware that a "solicitor was going to sue Adelaide Casino for breach of its duty of care" in not assisting him to avoid his substantial gambling losses due to his serious gambling problem - so the thought of such an action is not new to Mr Kakavas.[86]

It may not be particularly smart to threaten, with a claim for negligent failure to act upon an obvious gambling addiction, the very body from whom you seek permission to gamble. Nevertheless, Mr Horman then described the plaintiff as "a very clever and devious person" and added:

I further suspect that he very shrewdly uses his claim to be "addicted to gambling" in anticipation of having a "ready plea" in mitigation if he is detected or charged with any offence.[87]

The memorandum concluded by cautioning that any Crown officer dealing with Mr Kakavas needed to be alert to the prospect that their conversation would be taped by the plaintiff.

116 The plaintiff denied making the statements attributed to him by Mr Horman, although he agreed he did say that he would sue Crown for discrimination.[88]

117 Mr Horman prepared another memorandum on 11 June 1998 summarising a telephone conversation he had with the plaintiff the previous day. Mr Kakavas, he said, had been "very agitated" and threatened to sue Crown if it did not revoke his self-exclusion order. Mr Horman attached and referred to a newspaper article mentioning a duty of care alleged by patrons seeking to sue casinos. He also noted that the plaintiff had threatened to invite the media to Crown if the decision in relation to his application for the revocation of the self-exclusion order was not hurried up.[89]

118 It is clear from the 8 June memorandum that Mr Horman had reservations about the extent of Mr Kakavas' gambling problem. It is also clear that he had doubts about the credibility of Mr Watson-Munro's 3 June 1998 report. These doubts are evident in a memorandum which Mr Horman wrote to Mr Troost on 28 December 1998. After a reminder about the existence of that report, Mr Horman continued:

At the time I mentioned that I knew Mr Tim Watson-Munro fairly well over a period of many years. You may recall my suggestion at the time was not to accept the report on its face value and to "go behind" the report and query with Mr Tim Watson-Munro some bases of his conclusions and recommendation.[90]

119 On its face, this passage fails to disclose the source of Mr Horman's concern. In his 3 June report, Mr Watson-Munro refers to both "the pathological compulsion to gamble which had plagued [the plaintiff] in earlier times" and to the "very successful" treatment he had subsequently undergone. If regard were had only to the quoted passage, Mr Horman might have either of the statements in mind as not to be taken at face value. It was submitted on behalf of the plaintiff, however, that Mr Horman was here rejecting the opinion of Mr Watson-Munro that the plaintiff no longer felt the pathological compulsion to gamble as a result of his treatment. The December memorandum, it is said, "reveals Mr Horman's continuing concerns and belief about Mr Kakavas' gambling problem".[91]

120 Mr Horman rejected this when it was put to him in cross examination. He said that his concerns were raised by the statement by Mr Watson-Munro in the opening sentence of the report that the plaintiff "has been an ongoing client of mine for the past 4 years". This made him uncomfortable. He was surprised Mr Watson-Munro had not given an indication that he had been treating the plaintiff for years when Mr Horman contacted him about his concerns about Mr Kakavas' mental health.[92]

121 I was not impressed with much of the evidence given by Mr Horman. This is an example. It may be that the witness was confused; but whether it was confusion or an inability to identify the truth, Mr Horman's reference to the period during which Mr Kakavas was a patient of Mr Watson-Munro was in my opinion a red herring. I find that, in fact, he regarded the 3 June report as unsatisfactory because he did not believe that Mr Kakavas had ever felt the pathological compulsion to gamble.

122 The plaintiff gave evidence that on or about 18 June 1998, Mr Horman asked him to come to a meeting at the new Casino complex. At that meeting Mr Horman was accompanied by another man (it seems this was Mr Troost). Mr Horman handed the plaintiff a letter revoking the self exclusion order.[93] Almost immediately, however, Mr Horman gave him a second letter, which withdrew his licence to enter or remain in the Casino or on Crown premises.[94] The plaintiff said he was outraged. He stormed off.

123 The second letter incorrectly refers to a conversation on 19 February 1998 concerning the withdrawal of licence (the "WOL"). After the plaintiff pointed this out to Mr Horman during a subsequent telephone call, Mr Horman sent a letter dated 23 June 1998 correcting the error.[95] For present purposes, that error is immaterial.

124 The original WOL letter notes that the period of prohibition is indefinite, although Mr Horman indicated that the plaintiff could contact him to have it reviewed after six months. Mr Horman also wrote:

For the sake of the record, the withdrawal of your "licence" has not occurred in response to the revocation of your Self-Exclusion Order.

Whilst there is no obligation to provide any reason for the withdrawal of your "licence", and there are a number, one matter you will appreciate is the recent matter before the Court involving the owner of a restaurant who is a tenant of and frequent visitor to the Crown entertainment complex. I understand that a condition of your bail is that you are not to contact witnesses. Clearly your attendance at the complex could create some difficulties.[96]

125 The plaintiff said that after cooling off, he telephoned Mr Horman the next day or a few days later to express his anger and dissatisfaction. The plaintiff's account of his reasoning during this interaction was curious. He complained that Crown was happy to allow known criminals, as he described them, to use its facilities, while he had "one conviction for a fraud related offence which is completely consistent ... with my gambling addiction".[97]

126 If this is a truthful account of their conversation, it is no surprise that Mr Horman was not persuaded. A well-run casino has good reason to exclude those who have a known gambling addiction. But it is for that very reason that the account should not be accepted as accurate. Mr Kakavas had enough common sense to know that it would do him no good to tell Mr Horman that he was addicted to gambling. More consistent with reality is Mr Kakavas' agreement in his evidence that Mr Horman did suggest to him that, because he was facing the charge of armed robbery, "it wasn't satisfactory for me to attend the Casino."[98] Subsequent conversations with Mr Horman failed to persuade him that Mr Kakavas should be permitted to enter Crown premises.

127 During this period the plaintiff also made contact with a Crown employee, Mr Ishan Ratnam, whom he knew through their mutual friend, Mr Tony Khoury. From 28 November 1994 until 1 January 1997, Mr Ratnam was a manager of one or more bars located at the Galleria site where the original Casino was located. One of his roles was as Mahogany Room service manager. He first saw the plaintiff in November 1994 in the Mahogany Room. He was not involved in the plaintiff's self-exclusion, or in his application for revocation of that self-exclusion order, or the imposition of the WOL.[99] According to Mr Ratnam, on two occasions during the second half of 1998 the plaintiff asked him whether he could talk to Mr Horman about the plaintiff being able to come back to Crown. Mr Ratnam declined on the ground that the matter had nothing to do with him.[100]

128 In the meantime, the plaintiff had applied to have his self exclusion at Jupiters Casino revoked. This application was supported by a one paragraph letter from Mr Watson-Munro dated 10 August 1998[101] in which he stated that the plaintiff had been an intermittent client for some years "in the setting of a prior addiction to gambling". As a result of treatment, he said, the plaintiff had "better insight into his problems and of significance, the stressors which were previously responsible for his tendency to gamble have now been addressed. In this setting there is nothing at a clinical level to preclude him visiting Jupiters Casino for recreational gambling from time to time when he is in Queensland." The application was granted on 19 August 1998.[102]

129 In a letter dated 7 December 1998, which the plaintiff wrote to Mr Horman, he referred to the basis for the WOL in the following terms:

It was Crown's decision not to allow me access to the Casino citing a matter which was going before the courts for judgment as not the only reason but somewhat the major one for not granting me access to any area of the Casino.[103]

No mention is made of the plaintiff having any problem with gambling. Indeed, he concludes the letter by stating:

I wish to be granted access to the Casino to enjoy its facilities. It is my wish to resolve any differences amicably. I do not seek to cause trouble or embarrassment. My business is both welcomed and is sought after by every other casino in Australia. If Crown Casino continues to discriminate against me by taking a negative view to my attendance, I will use every available legal forum to obtain fairness and justice.

130 A meeting of Crown officers, including Mr Horman and Crown's then Senior Corporate Solicitor, Mr Alex Mathey, was held on 10 December 1998 to discuss the plaintiff's request. They decided not to revoke the WOL. When this news reached Pryles & Defteros, the firm sent a letter dated 15 December 1998 to Crown seeking details of the decision.[104] Not surprisingly, given the stance taken by the plaintiff at this time, no mention was made of any gambling problem on his part. Nor is there any hint of problem gambling being an issue in Mr Mathey's reply dated 17 December 1998.[105] Instead, Mr Mathey's remarks are entirely consistent with Crown being concerned about the disruption the plaintiff's presence might cause. He notes that if Mr Kakavas were to enter the premises:

... he may be subject to actions by the Victoria Police together with Crown including but without limitation for trespass to land. I point out that Crown has revoked your client's licence pursuant to its common law rights as occupier and not under the provisions of the Casino Control Act 1991 or otherwise.

131 Mr Mathey also asked that any further communications take place directly between himself and the plaintiff's solicitors, rather than by the plaintiff contacting Crown officers.

132 On 30 March 1999 Pryles & Defteros sent a further letter to Mr Mathey on behalf of Mr Kakavas seeking permission for the plaintiff to enter "Crown premises and in particular the restaurant entertainment complex".[106] Mr Defteros explicitly eschewed any request to enter the Casino area. Having received no response from Mr Mathey, the plaintiff telephoned Mr Horman in the first half of April 1999. According to a Horman memorandum dated 16 April 1999 to Mr Mathey, the plaintiff threatened that if Crown did not revoke the WOL "to enable him to go to the various restaurants and nightclubs", he would engage senior counsel and sue Crown. Mr Horman noted, "Interestingly he claimed that he does not want to have access to the gaming floor. However, later in the conversation he made the comment that once he gets into part of the complex it will be hard for Crown to justify keeping him out of the gaming floor."[107] Mr Horman conceded during cross examination that he did not believe Mr Kakavas' disavowal of any desire to enter the gaming area.[108]

133 In his evidence about this conversation, the plaintiff said that Mr Horman raised three outstanding issues that continued to be of concern. One was that Mr Kakavas might be directly presented by the DPP on the armed robbery charge after the magistrate dismissed the charge at the committal. Further, Mr Horman was still concerned that the plaintiff might have an altercation with Mr Sui if allowed back into the Crown precinct. And finally, said the plaintiff, Mr Horman told him he "was convinced I had a gambling problem" and thought returning to the Casino would not be right.[109] For his part, Mr Horman denied expressing concern about any gambling problem. He also denied saying that it would not be right for the plaintiff to return.[110]

134 On this last issue, I prefer the evidence of Mr Horman. In his evidence, Mr Kakavas could not initially remember what the "third point" was; and Mr Horman was unlikely to say anything which would undermine the decision to revoke the self-exclusion order.

135 It appears that Mr Mathey initially misfiled the letter from Pryles & Defteros.[111] Having had the letter brought to his attention by Mr Horman, Mr Mathey wrote to the firm on 22 April 1999, again confirming the continuation of the WOL and reiterating that Mr Kakavas should not communicate directly with Crown officers.[112] On this second point he was wasting his breath. Despite the warning about direct communication, Mr Kakavas on 6 July 1999 again contacted Mr Horman directly and said that for business reasons he needed to be able to return to Crown by 22 January 2000.[113]

136 In 1999 the plaintiff was working for a large real estate development company, Avonwood Homes, in Narre Warren. Towards the end of 1999 the plaintiff became a "buyer's advocate", seeking out opportunities for people wanting to buy properties primarily on the Gold Coast and in Melbourne. He started selling his services to people on a commission basis, charging 2% of the purchase price. At first he conducted this business personally; later he operated through a company, Elite Property Investment Group Pty Ltd. Initially he earned in the order of $100,000 to $150,000 per annum. Doubtless this helped fund gambling every couple of months at Jupiters Casino on the Gold Coast and at The Treasury Casino in Brisbane as well as at Star City Casino in Sydney,[114] using "a gaming bank ... of maybe $5,000 or $10,000, something to that effect".[115] The funds came either from his employment or as borrowings from friends.

137 Throughout the latter part of 1999 and early 2000 the plaintiff continued to gamble at Jupiters Casino, at the Treasury and at Star City Casino. In August 2000, however, he applied to exclude himself from Jupiters Casino.[116] By this time the plaintiff had met Fleur Anderson (whom he married in November 2006), although he did not then tell her about his gambling. He was also spending a great deal of time on the Gold Coast with his business. There is provision on the application form for a reason for the exclusion, but it was left blank by Mr Kakavas. He gave evidence about the reason for this application in the following terms:

Because as I said previously, I started to [spend] a lot more time on the Gold Coast and I knew I had a gambling problem and I wanted to protect myself from that gambling problem ... . I had made a decision at that time that the Gold Coast would be my base, my business was flourishing, I was buying and selling property very successfully and I knew my Achilles heel was the gambling and I wanted to ban myself from the nearest facility.[117]

The Exclusion Order was made on 6 August 2000.[118]

138 On or about 28 September 2000 the NSW Chief Commissioner of Police directed that Mr Kakavas be excluded from Star City Casino.[119] The plaintiff maintained that he did not receive the letter announcing this until late October or early November 2000. It had been addressed to him at his parents' Victorian home. He pointed to an entry in his diary for 3 November 2000 which read, "What a shock! Received exclusion notice today from Star City 'unbelievable'."[120]

139 The plaintiff initially gave evidence in chief that a further entry in his diary for 5 November 2000, "Rang B. Horman re Crown matter", related to a conversation during which he told Mr Horman about the Star City development.[121] He acknowledged that this differed from the second further amended statement of claim, which pleads that the relevant conversation occurred on 20 October 2000.[122] The pleading sets out the substance of the conversation as:

Plaintiff: Bill, I can't believe that the Sydney Chief Commissioner has excluded me without giving me any reasons.

Horman: Harry, there's not much you can do about it.

The plaintiff's amended reply fixes the date at 14 November 2000.[123] The Defendants submit that the plaintiff failed to swear up to the pleaded conversation.[124]

140 The plaintiff's evidence was that he sought Mr Horman's assistance to discover why he had been excluded by the NSW Commissioner of Police, but Mr Horman told him "he thought they would never divulge that reason to me, it was a private matter."[125] Later, however, the plaintiff acknowledged that the diary note suggests that he only spoke to Mr Horman on 5 November in relation to his exclusion from Crown and not from Star City. Nonetheless, he was adamant that he did mention the Star City exclusion to Mr Horman and sought his assistance at some time in November 2000.[126]

141 Mr Horman agrees that he did speak to the plaintiff in November 2000. His recollection, he said, was that while discussing whether Crown would revoke the WOL, the plaintiff said that he did not agree with a proposal made by a good friend of his, Bill McHarg, that he be allowed to return to Crown on a limited basis which excluded the gaming floor. He again threatened to sue Crown if it refused to allow him to return. During a conversation on 14 November 2000, of which Mr Horman kept notes,[127] Mr Kakavas also referred to the Star City exclusion and threatened to sue both that casino and Crown.[128] The substance of the conversation is referred to in an email sent by Mr Horman a few days later to the Casino Crime Unit in which he wrote that the plaintiff,

... was on the phone again earlier this week telling me that he is not going to take Bill McHarg's advice re HK's status here.

HK yelled again he is going to take on Star City all the way through to the High Court if he has to and he has (his words) no problem with joining Crown in the action and taking Crown to the High Court as well.[129]

142 According to the plaintiff, when on 5 November 2000 he discussed his exclusion from Crown, he told Mr Horman that he would like to return. He outlined his circumstances in the following terms:

I told him how I had steady employment, I told him that I was rebuilding my life. I told him that I would not be ... coming down for gambling purposes, I just wanted to be able to use the facilities because I had re-established a business relationship with people and I felt awkward and strange that I wasn't able to at least enter the Casino where I could use their restaurants, and there was one other reason ... too ... . At that particular time ... because I was back in the full swing of real estate there was a company in Melbourne by the name of Burgess Rawson and they were conducting regularly ... in the Crown rooms, not the gambling areas, they were conducting what's called bulk auctions. They would be auctioning sometimes up 30, 40, 50 properties at a time. As I was trying to become a buyer's advocate I needed to attend these auctions to either bid on behalf of my clients and provide some advice on behalf of my clients, and I felt like a moron that I couldn't attend and I was embarrassed to say to people I can't attend and I didn't know the answer why.[130]

He then threatened again to take action against Crown.

143 Mr Horman made notes of the 5 November 2000 conversation, and subsequently prepared a four page memorandum of the same date directed to Crown officers, including Messrs Mathey, Troost, Aldridge and Craigie.[131] According to the memorandum, the plaintiff told Mr Horman that he was "now financially very sound" in his business of purchasing property and building units. He claimed he had "about $15m stock on the go".

144 I accept the accuracy of these comments in the memorandum, largely because the plaintiff in cross examination acknowledged that he may have said these things.[132] Mr Horman then records the plaintiff threatening to "take Crown on" and saying he had the financial means to take legal action. However, if Crown were to revoke the WOL, the plaintiff would not take such action or go to the media. He told Mr Horman that even if the revocation were to take effect he did not intend to enter the Crown complex. Mr Horman expressed doubt about this assertion, writing: "I expect that he would want to attend Crown as I've been informed that he has recently been excluded from Star City Casino."[133] The memorandum also includes a detailed background briefing, in which Mr Horman described the self exclusion from Crown in 1996 as "possibly ... a defence ploy (as I understand that whilst self-excluded from Crown he continued to visit Jupiters and Star City casinos) for his then pending County Court trial."[134]

145 Mr Horman acknowledged that the information about the Star City exclusion did not come from Mr Kakavas during that conversation.[135] Mr Myers submitted that this was significant: it demonstrates, he argued, that Mr Horman was obtaining information about the plaintiff's status, and in particular his interstate exclusions, from his own sources.

146 Mr Craigie, who at this time was Crown's Chief Operating Officer, acknowledged that he must have received and read a copy of this memorandum, although he said he could not recall it.[136] In particular, he could not recall the reference to the Star City exclusion.[137] He could not remember taking any action as a result of receiving this document, nor did he ask Mr Horman any questions about it; he was content to let the other recipients deal with the matter.[138]

147 Relying on diary entries in the court book,[139] the plaintiff thought that on or about 5 or 6 December 2000 he asked Mr Bill McHarg, a close personal friend and mentor who also knew Mr Horman, to speak to the latter on his behalf.[140] Mr Kakavas first met Mr McHarg, then the Managing Director of Colliers Jardine, in 1991. They have since remained friends. The evidence is clear, however, that the plaintiff was prepared to exploit his mentor by accepting his help while not keeping him fully informed. Thus, although he had a hidden agenda which would undermine his friend's position, he allowed Mr McHarg to press Mr Horman for permission to return to those parts of Crown's premises that were not part of the Casino itself. Mr McHarg was prepared to do this because it was in conformity with his view that the plaintiff must not gamble. But the plaintiff had a different end in mind. He described it in the following terms:

I asked Mr McHarg to see if he could get me into the entertainment areas first because Crown Casino was being very difficult and didn't want me coming into the Casino for gambling, so I was trying to break the ice by trying to get into the entertainment area first.[141]

148 In another aspect of his evidence that does not support his credibility, Mr Kakavas said that he did not ask Mr McHarg to emphasize that he was a wealthy and successful property developer; if Mr McHarg told Mr Horman that the plaintiff was "travelling well", that was not something Mr Kakavas told him to do.[142] Yet this was one of Mr Kakavas' strong points; and, as is apparent from his willingness to use a friend in pursuit of a strategy designed to thwart that friend's concern about his return to gambling, the plaintiff was similarly prepared to play every card he could if he thought that would advance his purpose. Mr McHarg was not called as a witness.

149 Mr Horman gave evidence that he spoke to Mr McHarg about the plaintiff on several occasions during 2000. He recalled that Mr McHarg was keen to see the plaintiff return to the Crown complex, but conceded that Mr McHarg was "equally keen not to see him resume gambling".[143]

150 Mr Horman did meet with Mr McHarg, who told him that Mr Kakavas was successful in his business and wanted to return to Crown, "not for the purpose of gambling but for the purpose of business and speaking with clients."[144] Mr McHarg mentioned that the plaintiff had self-excluded from Jupiters Casino. Mr Horman also described the substance of this conversation in an email sent on his behalf to Mr Craigie and to Mr Andrew McDonald, at the time either Crown's head of surveillance or head of table games. The email was dated 22 December 2000 and, so far as is relevant, was in the following terms:

He [Mr McHarg] confirmed that Harry K. has recently been successful in a number of property projects and is "cashed up" - and indicated that he is concerned that Harry K., although he is saying he does not want to be able to return to Crown for gambling purposes and counselled Harry to that effect. Harry rejected a possible compromise raised by Mr McHarg that he again self-exclude himself from Crown if Crown was prepared to agree to his request that the withdrawal of his licence be revoked.[145]

Mr Horman also noted in that email that the plaintiff:

... was recently excluded from Star City by the requirement of the NSW Police Commissioner. Interestingly, Mr Kakavas was recently self-excluded from Jupiters.[146]

151 Mr Craigie could not recall reading this email. However, during cross examination he conceded an obvious point: if he did read it, he was at that time and by that means alerted to the plaintiff's potential gambling problems.[147]

152 Mr Horman's knowledge of the Jupiter exclusion is also apparent from the contents of an email that he sent on or about 10 November 2000[148] to Detective Sergeant Murray Aldred, who was in charge of the Casino Crime Unit. In that email Mr Horman correctly recorded that:

... the position from Jupiters is:

* self-excluded on 281297

revoked on 190898

* self-excluded on 060800

self-exclusion still current (101100)[149]

153 The approach by Mr McHarg did not bear fruit. The plaintiff therefore instructed Mr Defteros to take action in relation to both the Crown WOL and the Star City exclusion. According to his diary this occurred on 3 January 2001.[150] He also left a message for Mr Horman informing him that he had taken this step.[151] Letters were subsequently sent by Pryles & Defteros on behalf of their client on or about 25 January 2001 to Mr Horman and to the NSW Police Commissioner.[152] The letter to Mr Horman, couched as a request, sought an indication of whether the plaintiff would be allowed to enter the complex "to attend the restaurants, bars and cinemas without any access to any of the gaming venues."

154 On or about 1 February 2001, Mr McHarg sent a note to Mr Horman attaching a newspaper article about the plaintiff and his activities in the Gold Coast property market. It was headed "Hey, big spender". Mr McHarg's note reads:

Harry has made the application for limited entry as you suggested, I can't foresee any downside.

The enclosed article describes his new role in property - he has a feel for it & is doing very well.[153]

155 The reference in this note to "the application for limited entry" is curious. It was not explored in the evidence. If the plaintiff did indeed make the application to which Mr McHarg refers, then it would be important to know what became of it. If he did not, the proper inference is, it seems to me, that he was interested in returning to Crown, but only on the basis that he could gamble when he did.

156 It was put to Mr Horman that it was he who suggested that the "application for limited entry" be made. He could not recall doing so, but conceded that it was possible.[154]

157 Following the conversations between Messrs Horman and McHarg, the plaintiff said that he made no further attempt to persuade either Mr Horman or anyone else at Crown to let him come back. By that stage, he said, he had come to the conclusion that Crown would never accept him as a patron, "so ... I formed the view that I was just wasting my time and I never once after that made a request to be allowed in to the Casino for gambling purposes after 2001."[155]

158 The plaintiff nonetheless continued to gamble elsewhere. In 2001 his gambling pursuits took him to the Burswood Casino in Perth, to the Adelaide Casino, perhaps to one of the casinos in Tasmania, and to the casino in Townsville.

159 By 6 April 2001, however, Mr Kakavas had excluded himself from Burswood, albeit only for 24 months.[156] Having crossed out the reasons provided in the printed application form, which included "compulsive gambling", someone at the plaintiff's direction wrote: "Barring himself because of poor service & treatment by some staff" and then named three officers of that casino.

160 The plaintiff gave evidence about this. According to him, the real reason he barred himself was "because I had a gambling problem and it was the best code word I could use without letting ... these people know that I had a gambling problem." He said he did not want to let them know about this because, having been denied a credit facility for $1m, he had decided not to gamble in Perth again.[157] No explanation for restricting the ban to 24 months was proffered, although it runs counter to the proposition that a gambling problem, and not difficulties with some members of staff, was behind his decision. The warnings issued by Mr Healey, in particular, would have made the plaintiff aware of that school of opinion which regarded problem gamblers as everlastingly at risk.

161 The motive for the Burswood decision was not clarified by answers given by the plaintiff to questions asked in cross examination. In moving away from the proposition that a gambling problem was the primary consideration, Mr Kakavas accepted the suggestion, put by counsel for Crown, that he was genuinely upset by the three members of staff he named. He complained that they were "laughing at me behind my back".[158] He explained during re-examination that he believed that they "took a malicious enjoyment to my misfortune, that's how I felt. I felt they were laughing at me because I was losing my money and they were enjoying watching me lose my money."[159] He was also upset by the casino's refusal to grant the $1m credit facility. After denying that this was the reason for his self exclusion from the Burswood Casino,[160] he then conceded that it was.[161]

162 The significance of this issue is not to be over-emphasised. It does, however, provide an additional example of the lack of clarity often encountered in an examination of the plaintiff's evidence. Doing the best I can, it seems to me that Mr Kakavas excluded himself from Burswood for a number of reasons which perhaps he has never carefully identified for himself. An attempt to close off one avenue for gambling was, I think a factor. Also present was an element of dissatisfaction with the behaviour of the Burswood staff, albeit that he managed to give it greater significance than it deserved: he had lost before, and knew he would lose again. Being laughed at behind one's back was and is a possibility for all high rollers during the inevitable losing streaks. I doubt that that self-exclusion was seen by Mr Kakavas as a satisfactory or sensible means of escape from this difficulty.

163 The plaintiff said that, of the centres at which he remained welcome, he tended to prefer the Adelaide Casino. It allowed him to bet higher hand limits than the other casinos. Those in Tasmania, Canberra and Townsville were, for the plaintiff, too small. He visited the Adelaide Casino from time to time between 2001 to 2004, transferring amounts for front money ranging from $250,000 to $600,000, and was permitted to bet up to $100,000 per hand. He said this hand limit "was very significant to me because I wanted to bet as much as I could, the highest amount possible."[162]

164 The plaintiff self-excluded from the Sky City Casino in Adelaide effective from 7 September 2004 for an indefinite period. The form he signed includes a declaration that the exclusion is sought "on the grounds that I am placing my own welfare, and/or the welfare of my dependents, at risk through gambling.[163]

165 In documents prepared by him in November 2000,[164] Mr Horman noted the plaintiff's self exclusion from Jupiters Casino. A further approach to Crown was anticipated as a consequence. But this was confounded by the plaintiff during a conversation held with Mr Horman on 24 July 2002. In an email to the Casino Crime Unit sent the same day recounting this discussion, Mr Horman wrote:

Kakavas went on to tell me that he had also barred himself from Jupiters Casino on the Gold Coast (not confirmed) and he was doing exceptionally well (meaning he was avoiding gambling).

Knowing Kakavas as I do, I was waiting for some special request or something (e.g. he is still subject to a WOL at Crown as I was expecting him to tell me that he was about to travel to Melbourne and wanted to meet business acquaintances at the Crown complex). No request of any kind was made and the phone call concluded. Based on past experience - most unusual.[165]

166 Mr Horman became aware in January 2003 of the plaintiff's self exclusion from Burswood. He was asked to provide information about Mr Kakavas in response to an email sent on 29 January 2003 to Mr Fleming by Mr Barry Hildebrand, the head of security at that casino. Mr Hildebrand noted that the plaintiff was "currently self barred" from Burswood but was seeking to return.[166] In his response Mr Horman commented that "with mentoring from one of the senior executives from Jardine Colliers", presumably Mr McHarg, the plaintiff "has turned his life into great financial success ... through property development." Mr Horman went on to say that, according to reliable information, Mr Kakavas was "now cashed up" to the tune of millions of dollars, and the news from Burswood that he was "wanting to gamble again is no surprise - but, to me, would be a bit of a worry as to the level of extravagance he may act out."[167] However, in words which would resonate in late 2004 when Crown was actively contemplating Mr Kakavas' return, he cautioned that:

From a casino security perspective I would not want to risk him. It may well be that he has been excluded from Star City and, at one stage, he may also have been self-excluded from Jupiters (where he has gambled over a period of years).

My advice - EXTREME CAUTION NEEDED.[168]

167 It seems that Burswood accepted Mr Horman's advice. It declined the plaintiff's application for readmission.[169] In the meantime, Mr Kakavas had been gathering information about gambling in Las Vegas. He spoke to Mr Carl Schultz, a former employee of Jupiters Casino, who the plaintiff first met when he was a Jupiters' patron and Mr Schultz was a Jupiters' card dealer. Mr Schultz had a contact at the Bellagio Casino in Las Vegas, through whom he provided Mr Kakavas with details of the terms that Bellagio might be willing to offer.[170]

168 In March 2003, the plaintiff visited Las Vegas for the first time. His purpose was to gamble. At that stage he confined his patronage to the Bellagio Casino.[171] According to a document requested by the plaintiff and prepared by an officer of Bellagio, the plaintiff between 14 March and 19 November 2003 transferred US$1,477,537 to that casino's accounts.[172] No witness was called from Las Vegas, nor were any Bellagio records tendered. The plaintiff's evidence was that he lost all the money he had brought in.[173] He could not recall the terms on which he played during that first foray, but in subsequent trips he was provided, at their conclusion, with 15% of his losses; and, regardless of whether he won or lost, he received an incentive of 3% front money. He denied ever getting any boxes of cash. He did, however, receive incentives in the form of complimentary accommodation, food, beverages and tickets to the theatre and the like. From time to time, provided he deposited at least US$1 million as front money (which - he said - he regularly did), the Las Vegas casinos would provide a jet to fly him from Los Angeles to Las Vegas, a trip of approximately 40 minutes.[174] Any airfares would be reimbursed. The hand limit per bet was calculated at 5% of his front money.[175] The maximum bet on the tie was approximately US$30,000.[176]

169 During 2003, the plaintiff (as he told the Court) travelled to Las Vegas every three or four months. These visits continued into 2004. If the figures in exhibit P4 are accurate, Mr Kakavas between 7 April and 6 October that year committed US$4,081,145 to the casinos of the United States. He lost it all.[177] Although he described these as "major losses", he also maintained that he "was able to catch my breath, come back, regroup, do a bit more work and I was able to catch my breath so it wasn't that I was gambling all the time. I was able to come back and plan my next trip, get the finances in order."[178] (I pause here to note that this is not the behaviour to be expected of a person incapable of exercising any control over his gambling.)

170 The plaintiff explained that a principal source of his funds was a company on the Gold Coast, Equititrust Merchant Bank ("Equititrust"), that specialised in "mezzanine funding" or second mortgages at very high rates of interest.

171 According to Mr Horman, the plaintiff sought a meeting on 22 May 2003. His request was granted. Noting that the plaintiff was still subject to the WOL, Mr Horman nonetheless arranged that the meeting take place in the Crown complex for "camera coverage reasons". He anticipated that the plaintiff would plead to be allowed to return to the Casino. But, as Mr Horman conceded in his cross examination, he was mistaken in this belief; while the plaintiff was in good spirits and friendly, he did not seek permission to re-enter.[179]

172 Although unable to recall this meeting, the plaintiff confirmed that he did not ask to re-enter Crown Casino after 2001.[180] And his good spirits may be explained by an email forwarded by Mr Horman to a member of the "Casino squad" on 21 May 2003. Mr Horman then wrote that "I am told by a very reliable and credible source, that he is a multi-millionaire."[181]

173 The plaintiff gave evidence that in July 2003 he met Mr Ishan Ratnam on the Gold Coast. At the time, Mr Ratnam was the Manager of VIP Services for Crown. That department was responsible for looking after the needs of all Crown's guests - including their hotel and restaurant bookings and transfers. Mr Ratnam's duties also extended to the organisation of tours, visits to tourism sites, and concerts. He reported to Mr Williams.

174 At the time of the meeting with the plaintiff, Mr Ratnam was on holiday in Broadbeach with his wife. While there, he spent time with Mr Tony Khoury, a good friend of both Mr Ratnam and the plaintiff, who had accompanied the latter on at least some of his excursions to Las Vegas. In a short segment of hearsay evidence to which no objection was taken, Mr Kakavas told the Court that Mr Khoury "said to Mr Ratnam that I was doing well, and Mr Ratnam suggested that we just get together and have a cup of coffee."[182] Mr Kakavas denied asking Mr Ratnam whether he could enter Crown Casino or how his WOL could be overturned.[183]

175 According to Mr Ratnam, the suggestion that the three get together came from Mr Khoury, who then made the necessary arrangements. The meeting took place one afternoon outside the Aria apartments in Broadbeach. Mr Ratnam remembered that the plaintiff arrived in a red Ferrari and they talked next to the car for about 15 minutes. It was a friendly, warm, general conversation. Mr Ratnam observed that Mr Kakavas was wearing two or three Rolex watches on one of his arms. When he asked about it, the plaintiff explained that he had either cleaners or painters throughout his house and he did not trust them with his watches. They spoke about how well the plaintiff was doing financially, and about his trips to Las Vegas. Mr Ratnam recalled that, in describing his success in the Gold Coast property market, Mr Kakavas said, "I'm flying". While speaking about the plaintiff's trips to Las Vegas, Mr Ratnam said he asked why the plaintiff travelled 16 hours to go to Las Vegas when Crown was only two hours away. The plaintiff then asked whether Mr Horman was still at Crown. Mr Ratnam said that he was. The plaintiff mentioned that he continued to be barred from Crown, and asked what Mr Ratnam could do to help him. He also asked whether he could talk to Mr Horman. Mr Ratnam said he would look into it.[184] At that stage, Mr Ratnam did not know what the plaintiff's status was in relation to any exclusions, although he had been aware in 1998 that the plaintiff "had issues with Crown Casino regarding a case but again it wasn't my responsibility so I didn't delve too much into it or look into it at all."[185]

176 Some time after his return, Mr Ratnam briefly mentioned to Messrs Aldridge and Williams that, at a meeting arranged on the spur of the moment, he had caught up with the plaintiff on the Gold Coast. He added that the plaintiff was doing really well, and that he had asked about whether Mr Ratnam could talk to Mr Horman about him returning to Crown. There Mr Ratnam's involvement ended.[186]

The Plaintiff's Financial Standing as a Factor in Crown's Position

177 In early 2004 Mr Williams received a telephone call from Mr Bob Moon, an executive with MGM Casino in Las Vegas. It was about the plaintiff.[187] He also received information about the plaintiff at this time during a call from Mr Ben Tilley, a friend who was travelling to Las Vegas regularly and who had a lot of contacts within the casinos which were being visited by the plaintiff.

178 On 27 May 2004 Mr Aldridge sent an email to Mr Horman in the following terms:

Bill,

It appears that Harry is travelling very well at the moment and frequents casinos both here in Australia and Vegas.

Should he want to return to play at Crown, (and we are prepared to let him) what steps would need to be taken to allow him back into the casino?[188]

Mr Aldridge could not recall who gave him the information about the plaintiff's gambling activities,[189] although it may have been Mr Williams.[190] Certainly, he had not had any personal contact with the plaintiff. At this stage, he thought the plaintiff was still the subject of a self exclusion order.

179 Mr Horman replied later that evening. He said, in part:

Howard

I've had similar feedback to yourself regarding Harry (primarily from his Melbourne "mentor" Mr Bill McHarg). Harry K. a couple of months ago phoned me, let me know how well he was doing, told me he had bought a Maserati to go with his Ferrari, mentioned that he would be coming to Melbourne soon and suddenly had to end the call and I haven't heard from him since.[191]

Mr Horman added that the plaintiff would need to write to Crown's Security Incident Coordinator, (who at that time was Mr Fleming) and indicate that he wished to have his WOL revoked. Mr Horman recalled that while he then had discussions with Mr Aldridge and Mr Williams in relation to the Crown position regarding the plaintiff, nothing further happened.[192] This accords with Mr Aldridge's recollection.[193] Mr Williams said that following this email he spoke to Mr Horman, who indicated that in his opinion he thought it would be a bad idea for the plaintiff to come back because if the plaintiff were to encounter Mr Sui, he (according to Mr Williams' version of what he was told by Mr Horman) "would cause considerable harm to that patron".[194]

180 The plaintiff agreed he did call Mr Horman and very possibly said he would be coming to Melbourne. However, he denied saying that he had bought a Maserati or that he owned a Ferrari. According to his version, he certainly did not ask to have renewed access to the Casino.[195]

181 On 27 October 2004 Mr Williams sent an email to Messrs Aldridge and Horman in the following terms:

Harry Kakavas has apparently just dropped between 3 and 4 million in Las Vegas last week. Bill and Howard, can you please get a draft copy of the letter in which it would take for Harry to be let back in to play at Crown.

I will then discuss this with Rowen.[196]

182 The response was swift. About 15 minutes later, Mr Aldridge sent an email to Mr Horman in the following terms:

Bill,

Re this, can we make sure that the process, while covering Crown on all the appropriate aspects, is as simple as possible and the letter that we draft is as straight forward as we can make it.

Let's meet up to discuss.[197]

Mr Aldridge explained that the reference to Crown drafting the letter was based on his understanding at the time that the plaintiff was still the subject of a self-exclusion and that in many instances the customers seeking to revoke such an order had asked that Crown draft the letter so that it would include all the appropriate information.[198] He denied being involved in drafting the letter and was unsure whether he saw it before it was sent. He thought Mr Horman prepared it and that it may have been handed to the plaintiff by Mr Richard Doggett, Crown's interstate marketing manager based in Sydney, although not at his instruction.[199]

183 Mr Williams could not say who told him about the plaintiff's Las Vegas activities.[200] He gave evidence that as 2004 progressed, the information he received about the plaintiff became "a lot more positive and complimentary". Later in 2004, on a date he could not recall, Mr Williams received a telephone call about the plaintiff from Mr Tilley. At some time he received a call from Mr Peter Fox on behalf of Mr Steve Wynn, the owner of one of the Las Vegas casinos, seeking information about the plaintiff.

184 Mr Williams also received a call from Mr Kerry Packer.[201] Mr Packer asked him whether "he knew anything of this gentleman that Mr Tilley and Mr Brian Ray [a friend of Mr Packer's and a well respected and successful businessman on the Gold Coast] were talking about and whether I knew anything about him and he enquired about the reasons why he's not playing in Melbourne."[202] Mr Williams denied that Mr Packer indicated he wanted the plaintiff to be playing in Melbourne, and also denied that, after this conversation, he asked Mr Ratnam to obtain the plaintiff's contact details.[203] He told Mr Packer that the plaintiff had spent time in gaol and for that reason he was not permitted to come into the Casino. He could not recall whether he mentioned that Mr Kakavas' incarceration followed a conviction for fraud. Mr Packer told Mr Williams that he understood: he had not been told about the plaintiff's history, although Mr Ray had been "very complimentary about what Mr Kakavas was doing on the Gold Coast."[204]

185 Mr Williams denied that either of Messrs Packer, Tilley, Fox or Wynn were the source of the information that the plaintiff had lost between $3 to $4 million in Las Vegas. As part of industry practice, he said, he would speak to or receive telephone calls from his contacts in America; possibly he received the information during one of these calls, but he could not remember.[205]

186 The 27 October 2004 email was copied in to Mr Craigie. Mr Williams gave evidence that on or about that date he spoke to Mr Craigie to ask him whether he was agreeable to the plaintiff's return to the Casino. Mr Craigie said that he could not see any reason why the plaintiff should not be allowed back, provided that Messrs Horman and Fleming were happy that the appropriate steps had been taken.[206] Mr Horman then initiated some internal checks in relation to the plaintiff's position.

187 Later that evening, Mr Horman was told by a "responsible gaming liaison officer" in Crown's Customer Support Centre, Richie Kasai, that the plaintiff was subject to a WOL. In an indictment either of Crown's record keeping, or his own ability as a researcher, Mr Kasai's email to Mr Horman continued: "He [Mr Kakavas] is not listed on the Exclusion List, although there is a notation in patron ID which suggests that he has been issued a self-exclusion previously (date unknown). There is no mention whether his order has been revoked."[207]

188 The following evening, Mr Horman forwarded this email from Mr Kasai to Messrs Aldridge and Williams (and sent a copy to Messrs Craigie and Fleming). At the same time, he noted that (as he recalled) he had handed the plaintiff a letter advising him of the WOL, and had done this immediately after Mr Troost had notified Mr Kakavas of the revocation of the self-exclusion order. Mr Horman therefore wrote that a self-exclusion revocation procedure was not needed, while the decision about the withdrawal of the WOL would be a matter for Mr Fleming, having regard to the "risk assessment". Mr Horman expressed the view that "the 'risk' that I was originally extremely concerned about no longer existing to anywhere near the same extent due to both passage of time and some changed circumstances - which I can elaborate about if requested."[208] During his evidence Mr Horman agreed this was a reference to his concerns relating to Mr Sui. Mr Horman also made some enquiries about the legitimacy of the plaintiff's apparent wealth which revealed that he was being very successful in his business ventures.[209] When asked in cross examination about the source of this information, Mr Horman said he spoke to Mr McHarg, who also provided him with copies of several newspaper articles, a number of which concerned the plaintiff's success with his business. He also spoke to other (unidentified) people to obtain information.[210]

189 Mr Craigie gave evidence that Mr Williams spoke to him about whether the plaintiff should return to the Casino. Mr Williams mentioned that the plaintiff was playing in Las Vegas. Mr Craigie told Mr Williams that if the plaintiff was subject to a withdrawal of licence, then Mr Williams would need to deal with the responsible committee. Mr Craigie gave evidence that before a patron has his or her licence withdrawn for behavioural issues, a range of risk factors should be assessed. Equally, the consideration of any application for restoration of a licence previously withdrawn would necessarily include such issues as the attitude of other patrons and staff. The committee established for this purpose had representatives from Crown's security, compliance, legal and gaming departments. He told Mr Williams he would be happy to support the committee's view, whichever way it went. He explained:

At the time I was largely indifferent whether Mr Kakavas was let in or not let in. If the committee felt that Mr Kakavas was going to be disruptive to staff or other patrons, I would have been happy to endorse the committee's decision not to let him in. I was equally happy to endorse the committee's decision to be let in. I was agnostic about the matter which is why I sent John Williams off to the committee.[211]

190 Mr Craigie denied giving any other instructions to Mr Williams.[212] He did not say that he required a letter from a psychiatrist or psychologist. He agreed in cross examination that such a letter would have nothing to do with the revocation of the WOL and was likely to have been the result of concerns about the plaintiff's past gambling problem, although that was not discussed with him by Messrs Horman or Williams.[213]

191 Mr Williams confirmed the he spoke to Mr Craigie during this period, keeping him abreast of the situation and getting his advice and direction. Mr Craigie told him that as long as Mr Horman was happy with the process and procedures being undertaken, Mr Craigie would consider the facts and the situation to decide on whether or not to lift the WOL. Mr Williams recalled that he gave Mr Craigie information about the plaintiff's business successes and his character. He also told Mr Craigie that, according to the information available to him, Mr Kakavas was keeping company with some very well respected businessmen on the Gold Coast.[214]

192 On 29 October 2004 Messrs Horman and Aldridge attended a meeting of a committee to which in his evidence Mr Horman referred as the "Persons of Interest Committee". As I understand Mr Horman's evidence, this committee was one of two having jurisdiction, at different levels, over issues surrounding the withdrawal or renewal of licences. The Persons of Interest Committee dealt with "higher level matters", including in this instance, issues surrounding the plaintiff.[215] The second committee was, according to Mr Horman, known as the "Security and Compliance Committee".

193 Others in attendance at the Persons of Interest Committee meeting on 29 October included Crown's General Counsel (Mr Michael Neilson), the general manager of the Security & Service Department (Mr Peter Fleming), Ms Michelle Fielding (who was then managing compliance) and Mr Howard Aldridge. After giving "a fairly detailed briefing" on the background of the plaintiff, Mr Horman told the meeting that he had changed his position about Mr Kakavas' return to Crown. He said that he now believed that Crown should revoke the withdrawal of licence because his initial concern in relation to the Jimmy Sui matter was considerably in the past. Moreover, since Mr Kakavas' self-exclusion in November 1995, he had committed no breaches in relation to the self-exclusion or withdrawal of licence "and I also indicated my concern to protect the fact of our withdrawal of licence procedure had never been tested in a superior court, although there had been one matter where the, then either VCGA or VCGR decided to entertain an appeal against a withdrawal of licence and that appeal was subsequently [upheld] and I was not keen to see Crown be put back in that position where I felt, because of the factors that I've indicated, that our position may not be able to be justified."[216] He therefore recommended that Crown revoke the withdrawal of licence.

194 Mr Horman agreed in cross examination that he may have told the meeting that, although the plaintiff was getting treatment from psychiatrists or psychologists in 1998, he continued to gamble at the Star City and Jupiters casinos. (This information appears to be inconsistent with Mr Horman's earlier notes in relation to the NSW Police Commissioner exclusion from Star City and the Jupiters exclusion.) He also said that he had had the plaintiff committed the Melbourne Clinic.[217]

195 Mr Horman recollected that Mr Fleming was, during that meeting, strongly opposed to revocation. In his opinion, the plaintiff was a risk; and Crown should not take it. He also said that if Crown was to restore Mr Kakavas' licence, then the process should be initiated by the plaintiff. Mr Aldridge recalled that the conclusion reached was that Crown should allow the plaintiff to return to Casino.[218]

196 The only document discovered by the first defendant in relation to this meeting is a set of handwritten notes taken by Ms Fielding.[219] No agenda or minutes have been produced. Mr Horman gave evidence that in the early days of the committee there was no set agenda for meetings. At the end of each meeting the "details that we were provided with for consideration" were "then handed back."[220]

197 Some weeks after this meeting, (Mr Horman put it at around 24 November 2004) Mr Horman had, he said, a number of discussions with various people about the process to be followed. In addition to the normal procedure requiring the applicant to write asking that the withdrawal of licence be revoked, he expressed a preference to Messrs Neilson, Fleming, Aldridge and Williams for an additional procedure, namely, that the plaintiff should attach a report from a psychiatrist or psychologist. He may have also discussed this proposal with Mr Craigie.[221] He said he suggested this course because he had a number of concerns about the plaintiff suing Crown and raising a gambling problem. These concerns arose from a combination of factors: Mr Horman's recollection of the plaintiff's plea on the Esanda charge (when Mr Kakavas' gambling was put forward by way of mitigation); discussions he had with the plaintiff about other casinos being sued; and the latter's past threats to sue Crown (as well as Star City Casino). Also in this mix was the plaintiff's threat to bring members of the media to Crown to embarrass people. Mr Horman nevertheless repeated a recurrent theme of his evidence: he did not think that the plaintiff had a gambling problem.[222]

198 Within a week or two of 27 October 2004, Mr Craigie (as he said in his evidence) spoke to Mr Williams about the decision of another Crown committee with some role in relation to licences. Mr Craigie referred to it as the "Withdrawal of Licence" or "WOL" Committee. That decision, according to Mr Craigie's version of his conversation with Mr Williams, was to revoke the WOL. Mr Craigie was happy to approve or endorse that result. From that moment the plaintiff was free to come back into Crown.[223]

199 This survey of Crown evidence reflects poorly on the defendants. Here is the world leader in responsible gambling; yet is has (or in 2004 had) a multitude of committees with apparently ill-defined but overlapping responsibilities. Their membership was perhaps uncertain: what is clear is that, by the time he came to give his evidence, Mr Horman's grasp of detail concerning them was shaky to non-existent. Agendas were not published, and proper minutes were not kept. Which committee met when to consider Crown's response to the proposed renewal of Mr Kakavas' licence is, consistently with this picture, vague - except that some kind of meeting was held on 29 October 2004, and it may have decided that the plaintiff should be permitted to resume a career as a Crown patron. Mr Horman, however, did not think that the Persons of Interest Committee (or, for that matter, the WOL Committee) decided to re-admit the plaintiff at the meeting on 29 October 2004. That decision, he thought, was made some time afterwards - he assumed after Mr Neilson spoke to Mr Craigie.[224]

200 That it was made is beyond doubt. The plaintiff says that it was made knowing of his disability and with the intention unconscientiously to take advantage of it. As support for his position, he points to evidence that whatever committee met on 29 October had before it the issue of his gambling problem. Mr Fleming, he argues, was particularly aware of this during the meeting, when (as the plaintiff would have it) Mr Fleming said he was strongly opposed to the plaintiff's return and considered him "a risk we don't need." These remarks, coupled with Mr Fleming's recommendation that, if Crown did permit the plaintiff to re-enter, it should be at the plaintiff's request and "not Crown courting him", is a clear indication, it is submitted, that Mr Fleming was concerned about the fact that Mr Kakavas had a gambling problem and the consequent risk for Crown in attempting to lure him back. Mr Myers invited me to infer that Mr Fleming was in possession of facts which touch upon the whole series of steps involved in giving effect to Mr Craigie's decision - the letter, the psychologist, the actual process of consideration on 3 January 2005, and indeed every step involved in getting Mr Kakavas back into the Casino. Yet Mr Fleming was not called.

201 I return to this subject under the heading "Revocation of the WOL" at paragraph [484] below.

202 The plaintiff initially gave evidence (later acknowledged by him to be wrong) that in about September 2004, after there was some publicity about the sale of his home on the Gold Coast, Tony Khoury told him that Mr Ratnam was asking for his telephone number. The plaintiff gave permission for Mr Khoury to provide the relevant information. Shortly thereafter, Mr Ratnam called the plaintiff and, as the plaintiff recounted the conversation, said:

... that Johnny Williams asked him to give me a call. He said to me ... that Johnny Williams knew that I was betting in Vegas big amounts of money. He said to me that Johnny Williams knew the type of incentives Bellagio was giving me and Crown could give me better incentives. ... He told me that Johnny Williams wanted to see me back at Crown. ... Why do you want to fly 16 hours to Las Vegas when you can fly two hours to Crown? [225]

According to the plaintiff, Mr Ratnam told him that Mr Williams on behalf of Crown would allow him to bet up to $300,000 per hand and would give him 20% of his losses as a rebate. The plaintiff told Mr Ratnam he would be happy to go back to Crown. During his cross examination, the plaintiff conceded that this call may have occurred in October 2004, although he denied the suggestion it was on 12 November 2004.[226]

203 Mr Williams had discussions with Mr Ratnam who said he had heard from a mutual friend of his and the plaintiff that Mr Kakavas was interested in coming back to and playing at Crown.[227] However, he denied contacting the plaintiff either directly or indirectly through Mr Ratnam on 27 October 2004.[228]

204 Mr Williams denied that from late October 2004 through the following month he had caused Mr Ratnam and Mr Doggett to make contact with the plaintiff.[229] Mr Ratnam gave evidence that, some time in late 2004,[230] after the Melbourne Spring Racing Carnival in November,[231] he received a telephone call from Mr Williams who asked whether he had the plaintiff's telephone number - but without saying why it was wanted.[232] Mr Ratnam did not have it, but offered to try to get it. He then rang Tony Khoury (he thought that the call was made in the morning before lunchtime)[233] and asked whether, if Mr Khoury had the number, it could be given to Mr Williams. According to Mr Ratnam, Mr Khoury said he would need to check with the plaintiff first. This he did. Some time later he either rang back or text messaged the number to Mr Ratnam. The latter denied seeking this information from Mr Doggett.[234] Mr Ratnam then called the plaintiff and, after some general talk, said that Mr Williams had asked for his number and whether the plaintiff would mind if he passed it on. The plaintiff had no problem with this suggestion. Mr Ratnam was adamant, and I accept, that he did not discuss with the plaintiff the terms Crown might give Mr Kakavas; that was information to which Mr Ratnam was not privy.[235] Mr Ratnam then rang Mr Williams on his mobile or in his office and passed on the plaintiff's mobile number.

205 Consistently with the account given by Mr Ratnam, the telephone records of Messrs Ratnam and Williams point to a sequence of calls occurring on 12 November 2004, not on 27 October that year. Thus the records for Mr Ratnam's telephone show that he made a one minute telephone call to Mr William's mobile on 27 October 2004 at 2.59pm, then called Mr Khoury's number at 3.00pm twice, once for 30 seconds and then for two and a half minutes. But there is no record of him calling Mr Kakavas or Mr Williams again on that day,[236] although Crown's records for Mr William's extension show that the latter called Mr Ratnam's mobile at 3.55pm on 27 October.[237] By contrast, the records tendered by Crown indicate that Mr Williams rang Mr Ratnam's mobile at 9.52am on 12 November 2004 for 38 seconds.[238] Then, according to Mr Ratnam's records, he had a two minute call with Mr Tony Khoury at 11.38am, placed a two and a half minute call to the plaintiff's mobile at 12.07pm, and then made two calls, first to Mr William's mobile at 12.10pm for 30 seconds, and then to Mr William's Crown extension (5072) at 12.11pm for 30 seconds.[239]

206 The telephone records for the plaintiff likewise fit this pattern. While those records show him telephoning Mr Khoury's mobile at 10.42am, 10.48am and 10.59am (all non daylight savings times)[240] on 12 November 2004,[241] there is no record of any telephone contact with Mr Khoury on 27 October 2004 at all.[242] Of course, it may be that Mr Khoury rang Mr Kakavas that day; but this we do not know, because no records for Mr Khoury's telephone have been tendered.

207 Evidence was given by Mr Schultz, the former employee of Jupiters Casino (to whom I refer in paragraph [167] above). He had been aware since early 2000 that the plaintiff had been excluded from several casinos, including Jupiters and Star City. In relation to the latter, he understood that Mr Kakavas' exclusion occurred "not through a gaming issue, but through a police type i[243]e."243 He did not give evidence that he was aware that the plaintiff had any gambling problem. He recounted a telephone conversation he had with Mr Doggett in "late 2004". Mr Doggett asked whether he could get the plaintiff's telephone number from Mr Schultz. Mr Schultz declined the request on the ground that he knew that the plaintiff "was an excluded patron at casinos." He expressed the view that it was "a bad call" and said, "This is the wrong thing to do." According to Mr Schultz, Mr Doggett responded, "I'm under pressure from John Williams to try and get Harry back at the casino because we have heard he's wagering bi[244]n Vegas."244

208 Mr Schultz said that he felt very strongly about the issue of Mr Kakavas' possible patronage of the Melbourne Casino.[245] He therefore had a clear recollection of the conversation with Mr Doggett. The reason for his concern was not explored to the extent that I can come to any conclusion about it, but I note that it was Mr Schultz who referred the plaintiff to contacts he had with casinos in Las Vegas. It is likewise not apparent from Mr Schultz's account of this exchange that he specifically told Mr Doggett about the Star City and Jupiters exclusions - or whether he only said that it was wrong to contact the plaintiff. After this conversation, Mr Schultz rang Mr Tony Khoury and told him about the call.

209 With the evidence in this state of uncertainty, I cannot be satisfied that Mr Schultz told anyone at Crown that Mr Kakavas was subject to an exclusion order issued by the NSW police. The absence of Mr Doggett from the witness box allows me to infer that his evidence would not have assisted Crown. It does not allow me to assume that he would, if called, have given any particular evidence. Even were I to draw the first inference, I would not be satisfied that Crown, through Mr Schultz, knew of the Star City position.

210 Mr Williams told the Court that he was not aware of any contact between Messrs Doggett and Schultz, and he did not request such contact. He could not recall asking Mr Doggett to contact the plaintiff in 2004; he thought Mr Doggett's role was "very limited" dealing in the "bookings and logistics" of the plaintiff's visits.[246]

211 The plaintiff's version is that he was telephoned by Mr Doggett. His evidence about the timing of that call is not entirely consistent with his recollection that the conversation with Mr Ratnam was in or about September 2004. The plaintiff said that the call from Mr Doggett was "around November 2004, shortly after Mr Ratnam had called me."[247] Mr Doggett said that, "Johnny Williams would like to see you come back to Crown to gamble, we want you back." When the plaintiff asked what was needed to allow him to return, Mr Doggett said, "Harry, because you've had gambling problems in the past we would need a letter [from] a psychologist giving you the all-clear to come back and gamble."[248]

212 The telephone records tell a different story. They indicate that the first relevant contact was made when Mr Ratnam called the plaintiff on 12 November 2004. The conversation lasted for two and a half minutes. Mr Kakavas then left three voicemail messages for Mr Williams, each on 19 November. The latter, after several attempts to return these calls, made contact at just after 1.00pm AEST that day. The two spoke for nearly 28 minutes. Mr Doggett did not become involved until the late evening of the following day, when Mr Kakavas telephoned him not long before midnight.[249]

213 According to the plaintiff, he explained in a subsequent call to Mr Doggett (probably in mid December 2004) that he had contacted Mr Healey, who refused to provide a letter without first examining him and being satisfied that "I was okay." Mr Doggett said, "Harry, try any psychologist, try someone on the Gold Coast."[250] The plaintiff added that Mr Doggett told him that, in order to get the ball rolling at Crown Casino, he should "write a letter to say that I had overcome my gambling problems" and attach to that letter the letter from the psychologist. Mr Doggett advised that the plaintiff's letter should say that he had previously self-excluded himself because of a gambling problem, but now - having recovered - he wished to apply to have the withdrawal of licence revoked. The plaintiff says that, in reply, he told Mr Doggett that he was not interested in writing any letters. He continued, "If you want me to come back, you write the letter, you sort it out." Mr Doggett is said to have replied: "All right, Harry, I will organise a letter for you"[251] and then went on to remark that Mr Williams wanted the plaintiff's telephone number and had asked him (Mr Doggett) to make preliminary contact.[252]

214 The plaintiff relies on the evidence that Crown initiated contact with him - not vice versa - and that this was effected through Mr Ratnam. I accept that this is so. This, he says, was then followed by the call made to him by Mr Williams on 2 December 2004, which was the first time the two had spoken since about late 1998 or 1999.[253] As I have already noted in paragraph [212] above, the telephone records suggest that in fact this conversation occurred on 19 November 2004 and lasted for nearly[254] minutes.254

215 The plaintiff maintains that, in his first call with Mr Williams, the latter said that he had heard that the plaintiff was betting in Las Vegas and he wanted him back at Crown. He (Mr Williams) knew the type of arrangements that Bellagio Casino had in place for the plaintiff, and felt that Crown could provide better service and a greater betting limit than that offered by the Bellagio Casino. As Mr Kakavas recounts the story, Mr Williams also said that he could arrange credit facilities, and that the Crown jet would be made available.[255] According to the plaintiff, Mr Williams said that he wanted the plaintiff to start slowly. When the plaintiff queried this, he is said to have replied, "Harry, because you've had a gambling problem, we don't want to look like we are ... encouraging you ... to gamble." The plaintiff told Mr Williams that he was able to deposit $2 million as front money. The response (which, when he gave evidence, Mr Williams denied) [256] was, "Harry, we want you to start slowly. Please come and enjoy the facilities first, there's no need to hurry."[257]

216 The plaintiff says that, during that first conversation, Mr Williams told him that he had spoken to Mr Horman and that Crown wanted to impose certain conditions on the plaintiff's return. Those conditions were that: the plaintiff would have to be assessed by a psychologist or psychiatrist; the plaintiff would come back slowly; the plaintiff would initially restrict himself to the restaurants, the cinemas and the general entertainment complex but avoid the gaming area; and when the plaintiff did re-enter the Casino itself, he would not (if Mr Williams' wishes were accepted) deposit more than AUD$1 million. He would, moreover, on his first return visit, be limited to no more than $100,000 per hand.

217 The plaintiff was not happy with these conditions, and told Mr Williams as much. He said, "John, I don't want to go through this hassle of going to get a psychologist's report and going to all these consultations for you to turn around to me and say, mate, you can't come in." Mr Williams sought to allay such fears. According to Mr Kakavas, his reply was: "No, no, Harry, we are going to let you in, it's not official yet but you still need to provide us with a doctor's certificate allowing you to gamble." To this, the plaintiff (according to his account) responded with a question: "John, you know I've got exclusions from other casinos, including by the Chief Commissioner of Police in New South Wales, how is that going to affect me coming to Crown?". Mr Williams is said to have replied, "Harry, we don't care about your other exclusions, we only care about your exclusion from Crown."[258]

218 Mr Williams gave evidence that, having regard to the telephone records, this first contact was on 19 November 2004. Mr Kakavas called him three times and he then returned those calls on that day. He said that the plaintiff described his life on the Gold Coast; in particular, his business successes and the number of his then current projects. He told Mr Williams that he had been travelling to Las Vegas, where he was looked after very well. According to Mr Williams, it was the plaintiff who said that he would be interested in coming Crown "as it would be obviously a lot quicker flight to Crown than Las Vegas." He said that he did not want to gamble on the Gold Coast because it was too close to home and he was very concerned about his business reputation. As "a very, very well respected businessman on the Gold Coast ... he would prefer to keep his gambling quiet."[259] Mr Williams gave evidence that he told the plaintiff that he was happy to hear that he had done well, and that Crown's programs were very competitive with those offered in Las Vegas. Crown also boasted new facilities, which the plaintiff had not visited. Mr Williams described them. He added that procedures were necessary before the WOL could be revoked, but that he "was looking into them".

219 Again with the assistance of the telephone records, Mr Williams gave evidence of two further conversations he had with the plaintiff. As these records (to which I referred in paragraph [214] above) show, the first of the two calls was of five minutes' duration, and was made on 29 November 2004. The second occurred on 1 December 2004 and lasted 25 and a half minutes. In one of these conversations Mr Williams told the plaintiff that, in order to lift the WOL, Mr Horman would like to have a letter from a psychologist "stating the fact that he doesn't have a gambling pro[260]m."260 He may also have mentioned that the plaintiff should apply in writing to have his licen[261]restored.261 Mr Williams recalled that in the December conversation, which lasted about 20 minutes, the plaintiff told him that he was "happy to get the doctor's letter although he was treating this as a joke and said that it's somewhat beneath him to have to go through this process and formality of getting the doctor's letter." Mr Williams said that the plaintiff remarked, "As if I'm going to come back and sue you for $5 or $10 million, that's a joke. My reputation is worth a lot more than that. I don't think you understand my standing within the community [262]e."262 The plaintiff reiterated that he would only go through the process if Crown treated the information on its merits because "he was concerned that somebody had had a vendetta against him at Crown and would stop him from playing, no matter what the circumsta[263]s."263 The person concerned was identified, but Mr Williams was unable to recall who it was. Mr Williams told the plaintiff that his concerns would not be relevant at all, and that Mr Horman would look at all the facts when making his decision. Around this time the plaintiff mentioned that he had funds ready to be deposited into Crown's account, and so he would be "ready to play once we, or if we lift the ban." Mr Williams denied that during these conversations the plaintiff mentioned his exclusion from Star City or other[264]clusions.264

220 Mr Craigie gave evidence that he did not see any of the documentation produced in relation to the revocation of the WOL. He did, however, have a brief conversation with Mr Williams on or about 2 December 2004.[265] The gist of that conversation, he said, is reflected in the email Mr Williams sent to him on that day.[266] He agreed in cross examination that this email was concerned not with the WOL, the revocation of which had already been approved, but with Mr Horman being comfortable with the plaintiff's previous history and whether he still had a gambling problem.[267] The email notes that Mr Williams had spoken to the plaintiff and that Mr Horman had requested that the plaintiff sign and provide "appropriate documents". Mr Williams wrote that the documents were "included in this email"; but they have not been located by the defendants. The email notes that Mr Horman was "comfortable" with the background checks into the ways that the plaintiff had obtained his money, although his business dealings were "very highly speculative in nature" and "very dependent on the way the property market is going." The email further posits that: "Obviously we will only deal with Harry on a cash basis." The balance of the email, dealing with Mr William's conversation with the plaintiff, is in the following terms:

I have spoken to Harry who has told me that he is happy to go through this process of seeking [an] assessment into his condition of his gambling as long as if it does come back favourably that we would let him back into play at Crown. In other words he doesn't want to go through the hassle of seeing doctors etc for us to then say he can't play.

He told me that he is ready to play and will deposit 2 million into our account for his first trip. I have now got Harry to agree to the conditions that Bill is happy with that won't come back to bite Crown so if you are comfortable with the situation I will then proceed to get Harry to arrange proper paperwork that is required.

Please let me know ASAP.

221 In cross examination Mr Craigie said Mr Williams indicated that the plaintiff was asking to return to Crown and had been doing so "for some time".[268] While outlining the plaintiff's history with Crown, Mr Williams referred Mr Craigie to the fact that the plaintiff had previously been self excluded; that that self-exclusion had been revoked; but that the plaintiff's licence to enter Crown property had simultaneously been, and remained thereafter, withdrawn.[269] Mr Craigie denied that he then knew about the plaintiff's self-exclusion from the Burswood Casino in Perth or Jupiters Casino on the Gold Coast.[270] Nor (he said) did he know of the Star City Casino affair, or the involvement in it of the NSW Chief Commissioner of Police. He could not recall Mr Williams mentioning any of these exclusions when outlining the plaintiff's history; the focus of the outline was the Kakavas/Crown relationship.[271] At that time the plaintiff had not been "an issue" for Crown because he had been excluded under the WOL - although Mr Craigie conceded that, as he was aware, the Casino Control Act prevented a person the subject of an IEO from entering or remaining in the Casino.[272] He did not in December 2004 recall that on or about 22 December 2000 he had been sent a detailed email by Mr Horman about the plaintiff's history, which included a reference to the exclusion by the NSW Chief Commissioner of Police and the self-exclusion from Jupiters Casino.[273] He explained that this reference did not register because, in 2000, interstate exclusion orders were not referred to in the legislation, and Crown had had no official notification from either the Victorian Police Commissioner or the VCGR of interstate exclusion orders. The significance of the Sydney exclusion was for this reason not appreciated.[274] He agreed that the plaintiff's self-exclusion from Crown related to a gambling problem.[275] He and Mr Williams briefly discussed the plaintiff's past gambling history in the context of the self-exclusion order. This, however, had been revoked; and, consistently with this, his recollection was that Mr Williams was concerned about the behavioural problems which had resulted in the plaintiff's current status under the WOL.[276]

Letter Requesting Revocation of WOL & Brooks Report

222 The plaintiff says that on about 8 or 9 December 2004 Mr Doggett spoke to him about the letter requesting the revocation of the WOL. After the draft letter was initially faxed to him, Mr Doggett then contacted him with a proposal that he (Doggett) fly to the Gold Coast from Sydney to meet the plaintiff at the airport to provide him with the letter that Crown had drafted so he could sign it. The plaintiff asked why this was necessary. Mr Doggett said that Crown was "being very pedantic with your application" and wanted an original signature , " ... because you've been excluded from other casinos and you were excluded by the Chief Commissioner of Police in New South Wales ...".[277]

223 On either 9 or 10 December 2004 Mr Doggett met the plaintiff at the Coolangatta Airport. The letter, which is dated 9 December 2004 and is addressed to Mr Horman as Crown's General Manager Community Affairs, was produced. The plaintiff signed it. It read:

I wish to apply to have my Withdrawal of Licence revoked.

As I was previously self excluded I wish to advise that I no longer have any problems with my gambling.

I have enclosed a letter from my psychiatrist/psychologist who has made a current assessment of me in regards to this area.[278]

In fact, the plaintiff had not then been assessed. No letter from a psychiatrist or psychologist was therefore enclosed. After receiving the signed document, Mr Doggett took it with him. It subsequently arrived at Crown in Melbourne.

224 According to the plaintiff, Mr Williams subsequently called the plaintiff to ask whether he had organised an assessment by a psychiatrist or psychologist. At that stage he had not. The plaintiff then looked in the Yellow Pages and chose Ms Janine Brooks, a psychologist in Broadbeach, because she was closest to his home. The consultation with her took approximately one hour. The plaintiff then rang either Mr Williams or Mr Doggett on either 19, 20 or 21 December 2004 to advise them that a report would be available in the next few days.[279]

225 The report prepared by Ms Brooks is dated 23 December 2004.[280] The psychologist notes that she did not previously know the plaintiff, and that this consultation was the only time she had had contact with him. She was therefore unable to do an assessment of his suitability for re-admission to Crown. She then summarizes the consultation. She records that the plaintiff told her that, when he was living in Melbourne, he wanted to limit his access to the Casino because he was spending too much time there. Now that he was living in Queensland, the issue of access would only arise when he was visiting Melbourne. He told her that between 1990 and 1998 he was a compulsive gambler, but since then he had turned his life around. Evidence of this was his high standing in the community. The plaintiff said that he had conquered his past demons, but if he had a relapse he would again self-exclude. Ms Brooks found the plaintiff to be "an intelligent, highly motivated, and goal driven individual who has in the past shown himself able to self regulate his behaviour as evidenced by his 'self-exclusion' from the Crown Casino." She also referred to a relapse plan which the plaintiff said he "would not hesitate to implement."

226 The plaintiff thinks he faxed this report to Mr Doggett in Sydney. Mr Horman said he could not recall seeing the report at the time, although he did not deny that he might have done.[281] Mr Craigie gave evidence that he did not see it,[282] while Mr Aldridge did not believe that he saw the letter before the plaintiff returned to the Casino.[283] Mr Williams, however, gave evidence that he remembered the report being faxed to Mr Aldridge's office and either he or Mr Aldridge immediately faxed it to Mr Horman.[284] While Mr Williams read it and thought it was "fine",[285] he said it was really a matter for Mr Horman. Mr Horman assured him it was satisfactory.[286] In early January 2005 Mr Williams telephoned the plaintiff and said that he had received the report from Ms Brooks and there was going to be, or there had been, a meeting of the revocation committee to discuss the withdrawal of licence application.

227 Mr Williams gave evidence that he was not involved in the deliberations for the revocation of the WOL, or in the preparation of the letter of request. He denied seeing the plaintiff's letter of application for revocation of the WOL, although he did acknowledge being shown the report from Ms Brooks.[287]

228 Mr Craigie's evidence was that he was told by Mr Williams that in early January 2005 the Withdrawal of Licence Committee had decided to restore Mr Kakavas' right to enter the Casino. He agreed in cross examination that consideration of the licence was the principal issue but, in coming to its decision, the Committee took into account the plaintiff's past gambling problems.[288]

229 Mr Horman told a somewhat different story. According to him, a number of people representing security, surveillance, community affairs and gaming, who were also members of the self exclusion revocation committee, met on 3 January 2005 to debrief following Crown's New Year Eve events. Given that most of the members of the committee happened to be present, Mr Horman took the opportunity to talk to them about Mr Kakavas and the procedure that was to be followed, which was a variation on the normal withdrawal of licence procedure. He told them that while the decision had been made to revoke the withdrawal of licence, in the circumstances, it was considered prudent that Crown ask Mr Kakavas not only to provide a letter of request asking to be allowed to come back in, but also provide a report from a psychiatrist or psychologist. There then (as Mr Horman would have it) ensued discussion about the various (alleged) crimes that the plaintiff had been charged with, concerns about Mr Sui, Mr Horman's concerns that Mr Kakavas was "a con man" and his distrust of him, and the steps that could be taken to protect Crown.[289] Nonetheless, the decision was that the revocation of the plaintiff's WOL should be accepted and that he could return to the Casino. Mr Horman then conveyed this result to Mr Williams by email.[290]

230 Mr Williams said that, in late December 2004 and early January 2005, he had several telephone conversations with the plaintiff to discuss the restoration of his licence. During these, the plaintiff said he had some money with which to gamble, and was considering whether to play in Melbourne or Las Vegas.[291]

231 The processes adopted by Crown which had the result of restoring Mr Kakavas' licence are, one would imagine, far from world's best practice. They were uncoordinated, unstructured and unsatisfactory, even if the decision to revoke could in itself be justified.

232 Towards the end of January 2005, Mr Williams invited the plaintiff to be the Casino's guest at the final of the Australian Men's Open tennis tournament. Mr Williams gave the following evidence about the invitation:

I can't recall exactly who initiated it but it would have been the fact that he would have shown an interest in tennis and I could have very well have easily said, well, why don't you come down and watch the final, so it was a mutually agreed thing. I don't think there was any one party that was insistent about feeling very strongly about that, it was just a topic of discussion.[292]

233 I am satisfied that the initiative came from Crown. Even if it did not, I have no doubt that any hint from Mr Kakavas fell on receptive ears. Crown wanted Mr Kakavas as a patron.

234 On 30 January 2005, the plaintiff and a friend travelled to Melbourne by a commercial flight. He was greeted at the airport by a Crown driver with a sign that said "Harry Kay". At the hotel he was met by Mr Ratnam and Mr Aldridge and one or two other people from the VIP casino host department. He was handed some keys and told that he had been checked in under the name of "Harry Kay". He asked why this had been done. The reply was short: "Because we would like to keep your visit low profile." He was, as Mr Ratnam confirms,[293] also handed a copy of an email from Mr Williams to Mr Ratnam. It read:

Ishan,

Please give this email to Mr Kakavas who should he encounter any problems get him or the Crown employee to call either John Williams or Bill Horman on their respective mobiles. John and Bill are happy to take calls at anytime of the day.

Official paperwork with regards to the revoking of Mr Kakavas WOL will be completed on Monday 31st January.

In the meantime all courtesy should be extended to this patron.[294]

235 Mr Williams gave evidence that Crown will willingly accommodate a request for a silent booking from any customer; the plaintiff was not in this sense treated exceptionally.[295] He explained that a customer could choose to book under another name or remain anonymous, with consequential restrictions on the ability of anyone wanting to contact the customer through the hotel. His evidence was that it was the plaintiff who requested the silent booking. According to Mr Williams, the plaintiff told him that he was concerned about his reputation and about people knowing that he was gambling. He also mentioned that he wanted to keep his visits to Melbourne "as low key as possible because, as he used the words, and I remember the phrase, he said there are too many heads in Melbourne that he doesn't want to know that he is gambling to the levels that he's gambling."[296] The plaintiff denied that he asked for the silent booking.[297]

236 I accept Mr William's version. I find, therefore, that it was Mr Kakavas who suggested that his bookings be "silent". This is consistent with the plaintiff's evidence that he continually tried to conceal his gambling from his friends, family and doctors.[298]

237 The plaintiff gave evidence, which I accept, that during this visit he was given a tour by either Mr Ratnam or Mr Aldridge of the Casino's entertainment precinct and the gambling salons, including the Mahogany Room and the Crystal Club.[299] Mr Aldridge could not recall giving the plaintiff such a tour and did not believe he did so.[300] But it is clear that Crown wanted Mr Kakavas as a patron, and to that end, was prepared to bring him and his friends to Melbourne for the Open.

238 Mr Williams did not expect the plaintiff to gamble during this January visit. Nor did he. The two met on 1 February 2005 in either the Crystal Club (a lounge for Crown's VIP hotel guests on the 29th floor) or in the Conservatory Restaurant on level 1 of the Crown hotel. They had not met for a long time, so they spoke about what the plaintiff had been doing, and about his successes. Mr Williams' assessment was that Mr Kakavas was very relaxed and happy with his life.[301]

239 The plaintiff also gave evidence that during this trip he met Mr Horman at the latter's request in the lounge outside the Silks restaurant in the Crown complex. This meeting took place on either the day he arrived or the following day. In the course of their conversation (as the plaintiff said in evidence) he expressed the hope "that my other exclusions from other casinos, including the one from the New South Wales Chief Commissioner, wouldn't impede Crown in letting me play at the Casino." According to the plaintiff, Mr Horman reassured him that the "other exclusion from the other casinos, including the one from Star City in Sydney by the Chief Commissioner, would not impact on [Crown's] decision to allow me to gamble at Crown Casino."[302]

240 Mr Horman denied that the plaintiff raised the IEO, or any other exclusions with him, or that he replied in the terms described by the plaintiff.[303] He also expressed reservations about another aspect of Mr Kakavas' evidence. The plaintiff had said that Mr Horman told him that, because Mr Kakavas had had a gambling problem in the past and he did not want to see him "get into trouble", he wanted the plaintiff to "start slowly, use the facilities and enjoy the facilities and come into the Casino slowly."[304] While Mr Horman thought he may have mentioned starting slowly, he did not believe he used the word "problem"; rather, he thought he may have referred Mr Kakavas' self-exclusion in the past.[305]

241 According to Mr Williams, the plaintiff, both whilst in Melbourne and after his return to the Gold Coast, indicated that he was ready to resume his patronage of the Casino. They discussed the terms of the programs that Crown could offer. The plaintiff was interested in the table (or hand) limits and what discount on loss program Crown would give him. The means and cost of travel were also of concern. During the course of these discussions the plaintiff bargained against the background of the inducements which the Las Vegas casinos were offering him, including travel by private jet between that city and Los Angeles. The plaintiff wanted to know whether Crown would accord him like treatment; this seemed to be a big attraction for him. Mr Williams told him that Crown would not be willing to do that until he had made a number of visits.[306] The two also discussed, and the plaintiff was granted, the use of a private gambling room.[307]

242 The plaintiff acknowledged that he planned to gamble at Crown in early February 2005 and that he negotiated terms with Mr Williams. He asked Mr Williams for use of the private jet but this was initially refused. He said that he wanted to bring $2 million of front money but Mr Williams objected and said he would only allow him to bring $1 million. He said Mr Williams did not want the plaintiff to bet more than $100,000 a hand because he wanted the plaintiff "to start slowly." He agreed that when his demands were not met, he cancelled his bookings and went elsewhere. According to the plaintiff, Crown had reneged on the deal conveyed by Mr Ratnam in September or October 2004, which included an offer for the plaintiff to bet up to $300,000 a hand.[308]

243 The plaintiff stayed at the Crown hotel for one evening on 5 March 2005 to attend celebrations to mark the engagement of the daughter of one of his friends.[309] While an invoice has been raised for this stay,[310] it is not included in Crown's Patron Complimentary Transaction Report for Mr Kakavas.[311] This is hardly surprising since Mr Kakavas was not then a patron. It seems therefore that the plaintiff paid for himself. His evidence was that he did not gamble during this visit because Crown would not agree to the hand limit that he was seeking.[312]

244 In the first half of 2005 the plaintiff gambled in Las Vegas. According to the document said to have been compiled by the Bellagio Casino, the plaintiff on 28 January, 26 April and 2 May 2005 transferred sums of money totalling US$4,384,925.[313] The plaintiff thought that he may have transferred the sum of US$399,000 on 28 January 2005 in order to repay a line of credit extended to him in October 2004 and that he did not go to Las Vegas at this time. However, he was sure that he did gamble in Las Vegas at the Bellagio Casino on 26 April 2005 and 2 May 2005, when he transferred US$1,684,975 and US$2,299,975 respectively. His evidence was that two tranches were involved as a strategy to manage what he said was his gambling problem: he initially transferred an amount representing what he wished to spend. Only if he lost would he call for more.[314] At that time he was permitted to bet up to US$150,000 per hand.[315]

245 Mr Williams gave evidence that he was aware that the plaintiff was a regular traveller to Las Vegas around the 2004 - 2005 period.[316]

246 Baccarat was the plaintiff's game of choice, as it is of most high rollers. The game is simple - according to the plaintiff "it requires absolutely no skill at all ... It's a bit like playing two-up, it's either heads or tails, absolutely no skill, no thought processes needed apart from where do you want to place your bet."[317] It is a fast game: a hand can be played in about five seconds. The excitement for VIP players betting at a high level seems to lie in the prospect of winning - or losing - vast sums of money on the draw of a card.

247 The plaintiff agreed that the odds in baccarat are fairly evenly balanced between player and casino.[318] He explained the rules in the following terms:

... you can either bet on the bank or the player. The aim of the game is to get closest to 9, whoever gets closest to 9 wins. Both the bank and the player are dealt two cards each. Sometimes, depending on the amount, you sometimes get a third card but, for example, let's pretend that my two cards amounted to 7, a 3 and a 4, and I was on the bank and let's say the player's cards amounted to a 2 and a 4 which amounted to 6, my bet wins because 7 is closer to 9 than 6. A very simple game ...[319]

The Casino retains a 5% "commission" on every winning bet. It also has an edge over the player. Crown's house edge for baccarat is approximately 1.3%.[320]

248 Mr Craigie's evidence was that those who indulge in high stakes baccarat are highly mobile. While domestic VIP patrons play at different casinos within Australia, they - in common with their international counterparts - also follow their fantasies to the United States and Asia. Crown therefore competes against both (the larger) domestic and international casinos. Because the rules of baccarat are essentially the same worldwide, the competition between casinos seeking the custom of high rollers lies in the quality of the service and facilities they can offer. Players will therefore expect 5 or 6 star accommodation and service. Most, if not all, of this will be provided on a complimentary basis. Complimentary food and beverages will also form part of the package. Large casinos seeking international trade also offer some complimentary travel, either by reimbursing airfares on commercial flights or by offering the services of their own jet aircraft. They allow in addition either commission on turnover or rebates on player losses, or (depending on the market) a combination of incentives. Mr Craigie gave evidence that, typically, Australian and Asian casinos pay commission on turnover, while those in Las Vegas tend to offer rebates on losses.

249 Another area of competition is in the allowable maximum limit of the amount which may be wagered with each hand, including betting on the tie (see paragraph [289] below). Mr Craigie's evidence was that players seek the highest hand limits that a casino is prepared to give. He explained that "[h]igher bet limits increase the volatility of the result and it's obviously possible with higher bet limits to win or lose, playing baccarat, large amounts of money in a short period of [321]e."321 However, from the casino's perspective, this introduces unwelcome volatility, at least over the short term, because baccarat is "essentially a 50/50 proposition". The casinos in Macau currently permit hand limits of about AUD$500,000, while Crown and other Australian casinos allow a maximum individual bet of AUD$300,000. Depending on the exchange rate, Las Vegas casinos permit maximum bets of the US$ equivalent of between AUD$200,000 and AUD$350,000. The extent to which a casino will grant higher bet limits depends on:

... the casino's appetite for volatile results. If a casino has a broad business with gaming machines, table games, restaurants, hotels, et cetera, obviously you can dampen down the highly volatile results from the VIP business but if you were just in the VIP business, then for shareholders, for management and obviously for customers, it's a volatile ride playing high stakes baccarat.[322]

250 It has been submitted on behalf of the plaintiff that the amounts of money being gambled by the plaintiff, and the speed with which he lost it, are indicative of someone who is unable to control his behaviour. On the other hand, Mr Williams gave evidence that the rate and style of play will vary from player to player. It was put to him during his cross examination that the velocity with which, at times, the plaintiff lost money, was indicative of a problem gambler rather than a recreational one. He disagreed. Consistently with this, he did not (he said) think that, because on one occasion the plaintiff lost $2.3m in 28 minutes, he was necessarily gambling quickly and recklessly.[323] I accept this evidence. In coming to this conclusion, I note the contrary position taken by Bernard Healey: "... this cannot really be anything else but diagnostic of the condition from which he suffers."[324] If, however, you have very large sums at your free disposal, and their loss would not have any significant effect on your financial position, you might not be pleased - indeed, you might be distinctly disconcerted - to be the subject of the Healey diagnosis.

251 The fact is that betting on baccarat inevitably results in an extremely large turnover and correspondingly high levels of wins - or losses - when hand limits of $300,000 are exploited. Mr Myers acknowledged as much in his opening, when he submitted that a player could well gamble $1.479 billion over only a dozen or more gambling trips. In this context, the fact that the plaintiff lost large sums of money in a very short time while playing high stakes baccarat is not necessarily prima facie evidence that he was a pathological gambler; any gambler playing this kind of game at this level may lose big and lose fast. The point, it seems to me, is that while baccarat by its nature helps satisfy the cravings of problem gamblers, the fact that it was the plaintiff's game of choice says nothing one way or the other about his being under a special disability. I accept Mr Craigie's evidence that high rollers invariably request high hand limits. Even if gambling presents no problem for them, they enjoy the frisson of a game in which the stakes are high and there is action to match. This is the very reason why high hand limits are not favoured by casino operators. Volatility is not generally loved by business. The business of operating a casino is no exception.

252 It is, I think, indicative of Mr Kakavas' bargaining power that Crown allowed him the leeway it did with his hand limits.

Loss Rebate Program v Commission on Turnover Program

253 Mr Craigie gave evidence about the programs offered by Crown to premium players. The main programs are the commission program and the loss rebate program. The former offers, as commission, 0.65% of cash turnover, together with a complimentary allowance of 0.1% of front money. This program has not changed for 10 years and is still in use at Crown. The rebate program provides for a 20% discount on losses if front money of at least $2 million is put on the table. That program also has not changed in a decade. Casinos tend to use a similar commission and complimentary structure. In Australia as in Las Vegas, most VIP players receive full complimentary accommodation, food and beverages. Most interstate and international patrons also receive some form of concession for the cost of transport: either the use of the casino's corporate jet(s), or a reimbursement of the cost of their commercial flights.[325]

254 Mr Kakavas prided himself on being a patron of special significance to Crown. And, given the amounts he turned over on its tables, his assessment was correct. But he was nevertheless placed by Crown under the standard terms and conditions of the Premium Player Program Agreement (Interstate). These provide (among other things) that the complimentary allowance will cover "in-house room, food & beverage and airfare costs incurred by the player and immediate family. The allowance for complimentaries cannot be redeemed for cash or cash equivalent ..." (clause 3(b)).[326] This can, however, be varied in the patron's favour at Crown's discretion: clause 8(a).

255 Mr Craigie gave evidence that from 1996, at the temporary casino, and then later at the permanent casino until 2002, Crown had in place a program known as the Crown Assistance Program. This was administered by the General Manager of Community Affairs, who initially was Mr Horman. Mr Craigie's role was limited to providing upper level support. Between 1996 and 2002, Crown provided under this program training to all the gaming floor staff in responsible gambling policies. At that stage, however, the only truly professional services were provided by an outside agency to whom patrons were referred; under the Crown Assistance Program, the Casino had a contractual arrangement with an organisation known as Access Programs. It was to provide a telephone service to patrons or members of their families 24 hours a day, seven days a week. Dr Darmody was the contact person for Access Programs. A brochure advertising this service was on display in information stands at each entry to the Casino. Crown, however, did not directly engage its own professional staff, or have any in-house capability other than that of facilitating self-exclusion.

256 In 2001, Mr Horman was given the responsibility for developing what became known as the Responsible Gaming Customer Support Centre. The resultant on site facilities included a reception area, two counselling rooms, a conference room and an administration office. Crown employed two part-time psychologists available at any time of the day to talk to patrons or members of their family or friends. They also processed self-exclusion orders, and provided brochures and other information about problem gambling support services.

257 As part of this initiative, Crown also recruited "responsible gaming liaison officers". These were provided with training over and above that given to the gaming floor staff, with whom they liaised on a 24 hour 7 day basis about patrons who had been identified as being in difficulty, or possibly so: Mr Horman gave evidence that, in the mid 90's he, in conjunction with the psychologists retained by Crown, developed "an extensive, responsible training program" for them. By such means, affected patrons were afforded the services of Crown's on site Responsible Gaming Support Centre, as well as provided with access to outside agencies such as Gambler's Help, Gamblers Anonymous or financial counselling services. Initially, Mr Horman's responsibility was to oversee the operations of the centre. Later, Crown appointed a manager to take over the day to day responsibilities.

258 Mr Craigie' evidence was that the Responsible Gaming Support Centre "was a world first and it has since been copied by other jurisdictions".[327] The centre had an expert advisory committee available to assist centre management in the preparation of its policies and procedures. In a media release issued on 13 March 2002, entitled "Crown Customer Support Centre - 'A world first' problem gambling initiative launched today" Mr Craigie is quoted as saying:

Crown is a leader in responsible gaming and will continue its efforts to develop new initiatives and to work together with Government, Gambler's Help and other support and welfare services.[328]

259 The plaintiff's first visit to the Casino as a patron following the restoration of his licence to enter and remain occurred on Friday 24 June 2005. He gave evidence that he spoke to Mr Williams beforehand about the terms on which he would gamble. The plaintiff likened the resultant discussions to "negotiating with BHP ... just unbelievable".[329] But they were replicated before every trip. According to the plaintiff, Mr Williams on this first occasion said that he knew that Mr Kakavas had lost a considerable amount of money in Las Vegas, that he (Mr Williams) was prepared to allow the plaintiff to deposit $1m in front money, and that he would increase the hand limit from the $100,000 previously discussed between them to $200,000.[330]

260 The variation of the standard terms of the player agreement to allow only $1m front money rather than the prescribed $2m, is consistent with the plaintiff's evidence that Mr Williams wanted him to start slowly. But, given that the front money which Mr Kakavas in fact supplied on this occasion came from a variety of sources, including second mortgages and loans from friends, it is also consistent with the plaintiff appreciating, and acting upon, the need for a limit to its size.[331] Indeed, as will be seen shortly, the plaintiff exhausted his funds on the second gambling trip on 1 July 2005.[332]

261 The plaintiff says it was the increase in hand limit to $200,000, matching in this respect the terms being offered to him by the casinos in Las Vegas, which persuaded him to return to Crown.[333] Mr Williams also offered him a 20% rebate on losses, reimbursement of his airfares and, on his arrival at the Casino, 3% of his front money - a sum to which Mr Kakavas referred as "lucky money"[334]. The plaintiff requested the use of Crown's private jet; but this was declined.

262 Mr Williams' version is somewhat different. According to him, the plaintiff - before this visit - drew his attention to cash payments provided by the Las Vegas venues. Although described as "airfare allowances", these payments were received by Mr Kakavas as cash or chips given up-front to be utilised as he wished. He wanted to know if Crown could match or exceed them. Mr Williams denied making any meaningful response. In particular, he denied discussing the prospect of payments of cash or its equivalent, let alone agreeing that Crown would favour the plaintiff in this way. Nor (according to Mr Williams) was this topic raised with anyone else.[335] For his part, the plaintiff denied that he told Mr Williams, or later Mr Aldridge, that the Las Vegas casinos provided him with "lucky money".[336]

263 It is hard to know what to make of this. But the fact is that Crown did provide Mr Kakavas with "lucky money" in the form of cash. I accept that this was done as part of its general bargain with the plaintiff, and with the Las Vegas competition in mind.

264 It is the plaintiff's recollection that, when he arrived at the Crown Towers Hotel on this first trip, he was greeted in the atrium area by Mr Aldridge. Other evidence, however, squarely places Mr Aldridge in Europe at this time, [337] while Mr Williams was in America.[338] I accept that this was where those two were then located. In this context, I note that the Crown interstate premium player arrival schedule was prepared and authorised by Mr Doggett.[339] The plaintiff said he was handed his hotel keys and not required to check in. He was registered under the name "Harry Kay". This is borne out by the hotel accounts, which record the plaintiff as "Mr Harry Kay SILENT".[340] A Crown representative, who Mr Kakavas recollected as being Mr Aldridge, also handed him "a little brown Crown box ... like a box of chocolates ... wrapped beautifully" containing $30,000.[341]

265 The documents tendered by Crown do not show any record of an amount for either cash or an "airfare allowance" in relation to this visit[342] (as will be seen these are, on other occasions, recorded).

266 Before he started gambling on 24 June, the plaintiff signed a Premium Player Program Agreement (Interstate) on a loss rebate program. Pursuant to arrangements which had previously been negotiated with Mr Williams, the plaintiff had transferred $1m in front money to Crown, although the standard terms of the agreement required a minimum of twice that amount.[343] The agreement bears a mark near the standard figure for front money and an annotation "(as per J[ohn] W[illiams])". The player program also provided that, on a minimum turnover of five times the front money, the plaintiff would be granted a cash rebate of 20% of any losses together with complimentary allowances of 0.20% of front money.

267 The source of the funds used by Mr Kakavas for gambling has not been the subject of any careful analysis in this litigation. Some undoubtedly came from recycled winnings. The plaintiff said in evidence that he also drew upon the generosity of friends, while business activities provided further funds. As an example of such activities, Mr Kakavas said that he and Mr Khoury were engaged in a joint venture to build two units on land owned by the latter. He also said that the front money used by him for gambling on this first visit was raised through a second mortgage granted to Equititrust over that land.[344]

268 The plaintiff's recollection was that he started gambling late in the afternoon on 24 June and played for about two and a half hours. The Casino's turnover records[345] show that the plaintiff was engaged in this way from 5.20pm until 7.00pm and then again from 9.05pm to 9.20pm.[346] In the first session he won $1,040,000 but in the second (shorter) session he lost $40,000, leaving him ahead by $1m. The plaintiff agreed that after gambling he had dinner with three guests.[347] He left the following day without gambling again, and with two cheques for $1m each; one being the return of his front money and the other his winnings.[348] He said he did not continue gambling because "at that particular time I was running a business and I didn't want to neglect the business and I was happy to go into the Casino for a quick fix, win or lose the money and go home. So my attitude was, I've had my fix and I'm going home."[349]

269 This is not the account of someone who, under the disability of an addiction, had surrendered to the unconscientious behaviour of a predator prepared to exploit that victim's vulnerability. Still less does it portray a gambler so incapacitated by that addiction as to be incapable of setting in train the straightforward process of self-exclusion for which the Casino Control Act provides in s. 72.

Visit to Crown Casino 1 to 3 July 2005 (Programs 2 & 3)

270 The plaintiff's next gambling visit occurred on Friday 1 July 2005. On that occasion he stayed until Sunday 3 July. Again he signed a Premium Player Program Agreement (Interstate) on a loss rebate program, having recycled his $1m winnings from the visit on 24 June 2005.[350] Also applicable was the 20% cash rebate on any losses together with complimentary allowances of 0.20% of front money and a maximum hand limit of $200,000.

271 Crown's booking information shows that on this occasion the plaintiff took a commercial flight to Melbourne accompanied by his mother, his fiancée Fleur Anderson, and his friend Tony Khoury.[351] Whether he received cash in the form of "lucky money" is, on his own evidence, doubtful. He asserted that Mr Aldridge handed him a box containing $30,000 in cash before he signed the Premium Player Agreement.[352] However, Mr Aldridge was then still overseas.[353] Later in his evidence, when under cross examination, the plaintiff said he could not recall whether he received any cash. Shortly after that, he said that he believed that he "got it in a box about this big ... in the Atrium". Mr Young persisted: "Mr Kakavas, I put it to you that you didn't receive any such gift on 1 July?" Mr Kakavas responded: "That's incorrect, Mr Young.[354]

272 I note that neither the AUSTRAC financial transactions report (prepared by the Crown "cage" under the relevant legislation to record any cash payments over $10,000) nor the Crown patron complimentary transaction report, both of which record later cash payments to Mr Kakavas, have any entry for either 24 June or 1 July 2005.[355]

273 On 1 July 2005 the plaintiff gambled from 3.30pm until 6.25pm and lost $1m.[356] He then dined with eight guests.[357] Although he was credited with $200,000, being 20% rebate on his loss, he did not gamble again that day.[358]

274 The plaintiff gave evidence that, after sustaining the losses he did on the night of Friday 1 July 2005, he was on the following morning approached by either John Williams or Howard Aldridge and asked if he wished to continue gambling. He explained that he had no further funds. According to him, he was then asked whether he banked with the ANZ Bank and was told that, if he did, there was a branch of that bank on the corner of Elizabeth Street and Latrobe Street which opened on Saturday mornings until 1pm or 2pm. As it happened, the plaintiff did have access to an ANZ account in the name of Elite Property Investment Group Pty Ltd, the company used by him for business purposes. His evidence is that either Mr Williams or Mr Aldridge said that:

... if I wanted to continue gambling, they were happy to match me dollar for dollar what I pulled out of my account. They asked me how much money I had in that account. I thought I had approximately $350,000. They said to me, "Mr Kakavas, if you can pull out $350,000 we will match you dollar for dollar another $350,000 as credit." [359]

Crown then arranged to have him driven to the bank and he obtained a bank cheque in the sum of $345,000 which he took back to the Casino. He believed he handed the bank cheque to either Mr Aldridge or to the cage department of the casino.[360] Again, however, there is an identity problem. Mr Aldridge says that he was abroad until 11 July that year.[361] I accept that he was. In any event, having received the $345,000 cheque, Crown matched it by providing credit in a like amount.[362]

275 According to the plaintiff, either Mr Williams or Mr Aldridge asked him to have the bank cheque made payable to PBL Finance and not to Crown Ltd. He was told that the PBL Finance account was one used by Crown to camouflage payments made to it and as "they anticipated that I would be bringing in substantial funds in the future ... this was one way where I could camouflage the funds from my bank."[363] The plaintiff's evidence was that he did not seek such a facility.

276 I do not accept that payment to PBL Finance was made at Crown's request. Rather, it was made at Crown's suggestion, a suggestion which Mr Kakavas was then happy to adopt. He did have a concern that the ANZ Bank, from whom he borrowed large amounts for his business activities, might be unimpressed by the knowledge that he indulged in baccarat to the extent that he did. Better that this indulgence not be made too obvious, and (as we shall shortly see) that the funds be channelled through the Commonwealth Bank, with which Mr Kakavas had a personal account.

277 The plaintiff said he used the $690,000 to gamble and lost it all. In his examination in chief he said that on Sunday 3 July 2005 he had a conversation with either Mr Williams or Mr Aldridge during which he asked whether the Casino could refrain from banking his cheque for $345,000 because he would on the Monday morning organise the transfer of funds to pay for the lost $690,000. In re-examination he gave evidence that it was Mr Aldridge with whom he spoke. He added that he asked whether he could have returned "my PBL Finance cheque on the basis that I will make a payment of $690,000 from my Commonwealth Bank account on the Monday, the 4th." According to the plaintiff, Mr Aldridge replied, "On the basis, Harry, that you make a payment to Crown for $690,000, I will hand you back the PBL Finance cheque."[364] The cheque was then handed to him in the gambling salon by either Mr Aldridge or someone from the finance department. The plaintiff arranged for the Commonwealth Bank to T/T the sum of $690,000 to Crown the following day, and returned the $345,000 ANZ bank cheque to the issuing bank.

278 When asked why the money was transferred to Crown when the bank cheque was made out to PBL Finance, the plaintiff said "Because I didn't mind the money coming out of the Commonwealth Bank."[365] During cross examination, he agreed that he did not want any gambling transactions to appear in the ANZ records because he was borrowing large amounts from that bank and "I didn't want to spook them." He told the ANZ Bank that those borrowings were for business purposes; but he then used them to gamble.[366]

279 To reiterate: in my opinion, it was Mr Kakavas who sought to camouflage the funds which he was using for his gambling; Crown, in suggesting that the cheque be made out to PBL Finance, merely sought to accommodate this request.

280 The documents tendered by Crown show that on Saturday 2 July 2005 the plaintiff applied for a cheque cashing facility[367] and obtained two counter cheques (cheques No. CC111849 and CC111850), each in the sum of $345,000.[368] These were used to purchase $690,000 worth of chips. Even though the plaintiff agreed in cross examination that he would be asked to sign a document acknowledging the deposit of a bank cheque,[369] no record (such as a "Premium Player Funds Record" or - as on other visits - a receipt signed by the plaintiff) has been tendered.[370] Nor do the Crown records show a receipt for the $345,000 ANZ bank cheque, although the plaintiff insisted that he presented it to Crown on 2 July 2005 and that Crown then issued chips against it.[371]

281 ANZ bank records have been tendered on behalf of the plaintiff. A premium cash management cheque account statement for an account in the name of Mr H Kakavas records a deposit of $200,000 on Monday 4 July 2005, then under the same date a card entry at the 353 Elizabeth Street branch and a withdrawal of $200,000. Another ANZ premium cash management cheque account statement for an account in the name of On Nine Pty Ltd and Elite Property Investment Group Pty Ltd shows a deposit and then withdrawal of $145,000 on 4 July 2005.[372] A statement for a Commonwealth Bank cash management call account in the name of the plaintiff shows the withdrawal of $690,000 on 4 July 2005.[373]

282 The original bank cheque in the sum of $345,000 - dated 2 July 2005 and made payable to PBL Finance - has been tendered, together with two deposit slips, one for $200,000 deposited on 4 July 2005 into the plaintiff's personal account and the other for $145,000 deposited into the Elite Property Investment Group Pty Ltd and On Nine Pty Ltd accounts on the same day.[374] Evidence was given by Mr Stephen Wilson, the current manager of the ANZ branch at Elizabeth Street. Relying on ANZ bank records, he said that the PBL Finance bank cheque was purchased by the plaintiff on 2 July 2005 at 12.05pm following the withdrawal of $200,000 from the plaintiff's account at 11.59am and $145,000 from the Elite Property Group/On Nine account at 12.03pm.[375] He further gave evidence that the writing appearing on the reverse of the bank cheque, together with the bank's records, shows that the cheque was re-purchased at 2.38pm on 4 July.[376] He confirmed that if a bank cheque were purchased on a Saturday the entry would be made to the customer's account when the transaction was posted on the next business day, being a Monday.[377]

283 Mr Williams gave evidence that on the morning of Saturday 2 July 2005 he received a telephone call from the plaintiff asking whether they could catch up. They met in the Crystal Club. His evidence was that after some initial pleasantries, the plaintiff told him he had run out of money on the Friday afternoon and, given that he was in Melbourne for the weekend, he asked for some credit so that his gaming could continue. He said that he would normally go to the bank to use cleared funds, but it was a Saturday. His principal bank was the Commonwealth Bank, but it had no branches open that day. At that stage Mr Williams said he made no response. The plaintiff said he would pay back the moneys first thing on Monday morning and that he would never ask for credit again. Mr Williams said that he would think about it and discuss it with his colleagues. He then rang Messrs Theiler, Craigie and Horman. They all agreed to approve the plaintiff's request, and to match any money provided by the plaintiff with an equal amount by way of a cheque cashing facility. Mr Williams then conveyed this result to the plaintiff, who said, "Thank you very much, it means a lot to me that you've done this for me and it shows a sign of trust." Mr Williams then went home.[378]

284 Mr Williams could not recall how the subject of the ANZ Bank and its opening hours was raised. He agreed, however, that he directed the plaintiff to a branch of that bank which was open on Saturday. The plaintiff then provided the $345,000 by way of a bank cheque, although Mr Williams did not receive it personally.[379] He denied that he directed the plaintiff to have the cheque made payable to PBL Finance, and doubted that anyone at Crown would have given such a direction. He also denied speaking of camouflaging payments using the PBL Finance account.[380] I accept this evidence.

Visit to Crown Casino 1 September 2005 (Program 4)

285 The plaintiff's next gambling visit occurred on Thursday 1 September 2005. His evidence was that, because he brought $5m in front money, the terms of play were changed to increase the maximum bet from $200,000 to $300,000 per hand. The 20% rebate still applied. Mr William's evidence was that the plaintiff asked whether Crown would increase the rebate, but Crown declined.[381] The plaintiff said that, in addition to the increased hand limit, Mr Williams agreed to provide him with $50,000 as a complimentary bet before he started gambling with his own money. In his evidence in chief Mr Kakavas said he did not receive any cash on this occasion,[382] but in cross examination he asserted that he did receive a box of "lucky money" on the jet.[383] He said this cash was quite separate to the complimentary gaming chips.[384]

286 There is a difficulty with this evidence. It seems clear, and I accept, that the plaintiff was not given the use of Crown's private jet on this occasion.[385] Later again in his cross examination, Mr Kakavas' evidence was that he received the cash when he arrived at the Casino on 1 September 2005.[386] Mr Williams gave evidence that they agreed that Crown would give the plaintiff one per cent of his front money as an "airfare incentive".[387] This was the first occasion on which such an allowance was paid.[388]

287 The documents tendered by Crown show that a $25,000 Gaming Chip Voucher (#23) was authorised by Mr Williams as "goodwill" and issued in the name of "Harry Kakavas".[389] Mr Aldridge gave evidence that such vouchers were used for internal accounting purposes only and that Mr Kakavas was never presented with them; he was given either chips or cash.[390] The documents also show a voucher for "incentive a/fare per JW and RT" [John Williams and Robert Theiler] for $25,000.[391] It appears that a $50,000 chip purchase voucher was drawn in the name of "Harry Kakavas" using the airfare incentive of $25,000 together with a "direct deposit" of $25,000.[392] Mr Theiler gave evidence that indicated that the reference to "direct deposit" was to the gaming chip voucher.[393] An internal Crown email dated 1 September 2005, which sets out the conditions for the plaintiff's play, notes the $25,000 airfare incentive and $25,000 complimentary bet paid in a $50,000 "CP Plaque".[394]

288 Mr Theiler gave evidence that an "airfare incentive" is a payment to a customer, but is not necessarily a reimbursement of an airline ticket.[395] Mr Williams agreed in cross examination that, while such an allowance is commonly used by customers to pay for their airfares for themselves or for their family or guests, the money is not tied to airfares.[396]

289 The plaintiff also asked Mr Williams for permission to bet "on the tie". The evidence of Mr Williams was that the plaintiff sought to bet up to $75,000 in this way. The request was declined. Instead, the two agreed that he could bet up to $62,500.[397] The plaintiff explained this kind of bet in terms which emphasised the addictive element of his gambling:

The tied bet ... allows you to be paid eight times your money. If the bank gets a 7 and the player gets a 7, it's deemed to be a tie. To the best of my recollection the Casino would allow me to bet approximately $62,500 on the tie ... eight times $62,500, ... I would win nearly half a million dollars if the tie came up. ... It was quite an important bet to me, the tie. ... Betting on the tie, Your Honour, is optional. Most people don't bet on the tie because it's a waste of money, complete and utter waste of money ... . I like to bet on the tie because I was excited and drawn to the possibility of winning nearly half a million dollars if the tie came up because when I was betting on the bank or the player, the maximum amount I could win was $300,000 but by the Casino giving me a limit of $62,500 and you get paid 8 to 1, six eights are 48 so there's half a million dollars if the tie was to eventuate. So it was quite an adrenalin rush for me to be able to bet on the tie.[398]

Mr Williams described betting on the tie as "a very volatile bet which in theory should happen one in every nine outcomes."[399]

290 The plaintiff signed a Premium Player Program Agreement (Interstate) on a Loss Rebate 2 footing.[400] A Crown Premium Player Funds Record for "Harry Kay" shows that funds of $4.3m and $700,000 respectively were transferred to the Casino in two tranches on 1 September 2005.[401] The plaintiff lost it all in a flurry of activity - which, he says, reveals him in his true colours. Crown's turnover records (in the name of "Harry Kay") show that on 1 September 2005 he gambled from 4.45pm to 6.40pm and won $2,450,000.[402] He then stopped for dinner with six guests[403] and gambled again between 9.10pm and 10.10pm. In that single hour he lost $4.3m.[404] He continued undeterred. In his next session, from 10.20pm to 12.05am, he won $2,969,500.[405] This was followed by a fourth display of freneticism, from midnight to 1.20am, during which he lost $5,614,000.[406] A final session, from 1.25am to 1.45am, saw a further $555,000 disappear.[407] Over these five sessions the plaintiff turned over $85,986,000.[408]

291 The plaintiff agreed in cross examination that, at the end of all this, he still had his 20% rebate on losses. It amounted to $1,010,000, and could have been used for further gaming; but, although he remained a guest of Crown until 4 September, he did not during that visit gamble again. He said that the rebate was transferred directly to his Commonwealth Bank account and he used it for his next gambling trip.[409] This is supported by his Commonwealth Bank records which show a deposit of $1,010,000 on 2 September 2005.[410] He agreed that he entertained 10 guests for dinner on each of 2 and 3 September 2005.

292 On 2 September 2005 Mr Williams sent an email to Mr Horman giving him an "update" on the plaintiff's activities. After noting that the plaintiff had been planning this trip to Crown for two months following receipt of "a very substantial settlement" for one of his Gold Coast properties, Mr Williams remarked:

His behaviour seems to be in line with a very successful and focussed businessman who has set himself an amount which he is comfortable with to gamble after a very lucrative business deal. That fact that he has been talking about this for so long indicates to me he is in full control of his actions and simply enjoys baccarat and sees it as a means of recreation and a way to celebrate his successes.

He then noted that the plaintiff was accompanied by his girlfriend and a couple of other friends and that they were all enjoying the facilities and entertainment. Mr Williams commented:

This again indicates to me that he is using his time in Melbourne as a brief holiday as opposed to just solely playing baccarat.[411]

The fact that Mr Williams wrote this email, and the tenor of his comments, suggests that Crown was monitoring the plaintiff's behaviour. An element of concern generated by his past gambling problems was, it seems to me, present. To the extent that it was, the email may have had about it a touch of the self-serving company bureaucrat. To the extent that that is so, I discount it entirely. On the other hand, it is not necessarily all Crown's way. It is true that, when giving his evidence, Mr Williams denied that he was concerned about the plaintiff's pattern of gambling.[412] This, however, is a denial which I do not accept; and although Mr Williams said that he could not recall asking Mr Horman to keep an eye on the plaintiff, I am satisfied that he did just that. This is consistent with his admitted practice (which he began at the time the plaintiff returned to Crown to gamble, and continued until his last trip in August 2006) of keeping notes on the plaintiff's behaviour and reporting his observations to Mr Horman.[413]

Visit to Crown Casino 8 September 2005 (Program 5)

293 The plaintiff returned to Crown on Wednesday 7 September 2005 and gambled the next day. His evidence was that in the days preceding this trip, he and Mr Williams agreed on the telephone that if he brought $4m in as front money, Crown would provide $1m credit "in order to make the amount an even $5m which was the same amount that I brought the trip before". The maximum bet was agreed at $300,000 per hand with a $62,500 maximum bet on the tie. The 20% rebate on loss would apply and "lucky money" of $50,000 would be provided.

294 According to Mr Kakavas, he was told by Mr Williams on 8 September 2005, that, because he was "starting to bring in some really serious money" Crown had "another account that you can use to camouflage the deposits." He identified this as "Southbank Investments" which is a wholly owned subsidiary of Crown Melbourne.[414]

295 The plaintiff complied.[415] He wished to conceal his gambling from his Gold Coast business connections. As he said in his evidence:

I believe that the people that I was borrowing the money from thought that I was conducting some real estate activity because I was asking these third parties ... not to write out the cheques to me. The $2m ... never went to me. No third party cheque ... ever went to me, they all went to Southbank Investments and I think people concluded I was doing some sort of investment real estate business.[416]

296 The plaintiff did have a real incentive to be less than frank about his funding arrangements. The $4m was made up of $800,000 he had borrowed from Equititrust, together with $3.2m borrowed from the ANZ Bank. The Equititrust loan was taken out in the name of Mr Tony Khoury and secured against the joint venture property at 203 Hedges Avenue, Mermaid Beach. It was expressed to be for "working capital".[417] The ANZ loan was secured on a property at 1 Albatross Avenue, Mermaid Beach, Mr William Kerwick's principal place of residence. That loan was expressed to be used to retire debt on 203 Hedges Avenue, Mermaid Beach.[418] Mr Kakavas agreed that he signed a declaration that this loan was wholly or predominantly for business investment purposes; he also agreed that this was false.[419] While the plaintiff said that the transaction was one about which Mr Kerwick, was informed - to the extent that he was probably aware that the funds would be used to gamble - the latter did not see or sign any of the documentation. Mr Kakavas signed as his attorney. The plaintiff said that he and Mr Kerwick "had an arrangement going back several years ago that if I needed assistance he would help me."[420] He did not inform the ANZ Bank of the use to which the money he borrowed from it would be put where the purpose was to gamble. Rather, he took the precaution of transferring the funds to his Commonwealth Bank account.[421]

297 It was on this trip that, for the first time, Crown offered the service of its private jet. The plaintiff gave evidence that Mr Williams said: "Harry, we can now see that you are playing real serious numbers and we would like to grant you the jet as a token of our appreciation for your business and the amounts you are betting." According to Mr Kakavas, Crown's appreciation was made known by other means as well. His evidence was that, when he boarded the jet at Coolangatta, "there was a little brown chocolate box, and it is virtually a chocolate box, and there was $50,000 cash nicely gift-wrapped like a Christmas present sitting on my seat." The pilot, either Mr John Torr or Mr Ken Norman, handed him the box and said, "Harry, this is a present from Crown."[422]

298 There is, in Mr Aldridge's acknowledgment that Crown did not provide cash on the jet to any other Australian domestic patron, support for Mr Kakavas' account.[423] On the other hand, it is inaccurate in at least one respect. Crown records show that on 8 September 2005 the Crown jet only flew once with Mr Kakavas on board; and that was to take him from Melbourne to the Gold Coast.[424]

299 A voucher issuance form tendered by Crown shows that a $25,000 gaming chip voucher was authorised by Mr Williams.[425] A gaming chip voucher (#24) was then issued in the name of "Harry Kakavas".[426] The plaintiff acknowledged its receipt.[427] The AUSTRAC financial transactions report suggests the voucher was exchanged for cash on 8 September 2005 at 12.29pm.[428] In addition to this $25,000 voucher, there is a record of a payment on 8 September 2005 of an "airfare incentive" in the sum of $25,000.[429] It follows that a total of $50,000 was provided to the plaintiff for this trip.

300 On 8 September 2005, Mr Kakavas signed a Premium Player Program Agreement (Interstate). It provided for a rebate on losses, for $4m in front money, and for a cheque cashing facility of $1m.[430] The word "restricted" appeared on the form of application for the cheque cashing facility.[431] Its meaning was, at the trial, a subject of debate. The plaintiff initially said that this meant that his cheque cashing facility would not exceed $1 million for this program.[432] When challenged, however, he conceded that there may be some doubt. The point was taken up by Mr Craigie, whose evidence on it I accept. He said that the annotation referred "to the fact that we know the patron and therefore they haven't had to fill in the full application details every time they want to change a facility."[433]

301 Crown's turnover records (this time marked "Harry K.") show that on 8 September 2005 the plaintiff gambled from 12.15pm to 2.10pm,[434] and won $2.5m.[435] He returned to the Gold Coast that evening on the Crown jet, taking with him his winnings and his front money, a total of $6.5m.[436]

Visit to Crown Casino 9 September 2005 (Program 6)

302 He was not home for long. He arrived on the Gold Coast on the evening of Thursday 8 September 2005, only to board the Crown jet the next evening for the return journey to Melbourne.[437] Baccarat called once more.[438] On this occasion his front money was $3.5m. Crown's records show receipt of a Commonwealth Bank bank cheque for that sum.[439] He again played under a Premium Player Program Agreement (Interstate) on a Loss Rebate 2 footing, giving him a 20% rebate on loss.[440] The maximum bet was again $300,000 per hand with a $62,500 maximum bet on the tie.

303 On this occasion Mr Aldridge authorised the issue of various vouchers totalling $17,500.[441] They comprised Gaming Chip Vouchers for $500 (#50), two for $1,000 (#501 and #502), one for $10,000 (#122) and one for $5,000 (#114) all in the name of "H Kakavas".[442] Mr Aldridge also authorised a cash pay out described as an airfare incentive in the sum of $17,500.[443]

304 Crown's turnover records (which on this occasion identified the plaintiff as "Harry Kay") show that on Friday 9 September 2005 he gambled from 9.05pm to 11.10pm and won $4,550,000.[444] The plaintiff then repurchased his bank cheque for $3.5m and received a Crown cheque for $4.5m (#674302) together with cash of $50,000.[445] The plaintiff's Commonwealth Bank records show these two cheques were deposited into his account on Monday 12 September 2005.[446]

Visit to Crown Casino 12 September 2005 (Program 7)

305 The plaintiff gave evidence that, after his return to the Gold Coast, he was prompted by a telephone call from Mr Williams over the preceding weekend to come back to the Casino on Monday 12 September 2005. According to Mr Kakavas, Mr Williams said, "Harry, you've had a big win. I just want you to know that the jet's available for you within two or three hours of you calling us, it's on standby. I would love you to come back." Mr Kakavas replied that he had no money with which to return because the two cheques received from Crown on Friday 9 September had not been cleared. He added that he "didn't have time, I was neglecting my work at this time, and I didn't have enough time to go to the bank to get up front moneys in order to go back to the Casino to gamble with." Mr Williams said he would "do a special deal" for the plaintiff which meant he did not have to bring any front money. The plaintiff insisted on a maximum bet of $300,000 per hand. Mr Williams said that "because they tasted a little bit of defeat for the first time, they had tasted a $4.5 million defeat, a significant defeat, he wanted to keep my betting limit down." Therefore he told the plaintiff that he would be allowed to bet $300,000 per hand, even in the absence of front money, but only on the basis that there were no discounts, commissions or rebates. They also agreed that he would be permitted to bet $62,500 on the tie, and that the Crown jet would fly him to Melbourne.[447]

306 On 12 September 2005 the plaintiff signed a Premium Player Agreement which included terms and conditions never before imposed upon him. No commissions, discounts and rebates were included in the package. On the other hand, he was granted a non-transferable "restricted CCF [cheque cashing facility] of $4,500,000".[448] The agreement also provided (by condition 5):

Where an amount is owed at settlement, I hereby authorise that Crown place a "stop payment" on Crown gaming cheque number 674302 issued to myself dated 09.09.05 for $4,500,000.

Any difference owed to myself at time of settlement will be paid by way of a Crown gaming cheque or TT.[449]

The plaintiff gave the following evidence about this condition:

... because they could control that cheque [that is, cheque #674302], they asked me to sign this document which basically said that if I lost up to $4.5 million they could put a stop payment on the cheque because the Crown Casino was aware ... that I had banked it on the Monday and those funds wouldn't have cleared until overnight and because I was gambling on that particular Monday evening, my cheque hadn't cleared so Crown could have put a stop payment on the cheque.[450]

307 In my opinion, Crown did not by these manoeuvrings provide credit to Mr Kakavas. It merely allowed him to play against funds owed to him by Crown. It may be that the 12 September Premium Player agreement did not give Crown all the protection which would have been provided by a more carefully drawn document; but that is not the point. The plain fact is that Harry Kakavas was entitled to the proceeds of the cheque for $4,500,000. By confirming that entitlement, Crown was not extending him credit; rather, it was acknowledging Mr Kakavas' right to the funds in question.

308 Mr Williams gave evidence that during his discussions with the plaintiff before this trip he told him that:

... it was getting far too complicated for Mr Kakavas to continue under the discount on loss program because of that reason I tried to explain before. ... I said to Mr Kakavas that it would be a lot simpler and easier if he was to play under a commission program like 98% of our other customers. In doing so, that means that he would have to forfeit the limit of $300,000 and play under a limit of $200,000 which is the limit for the commission program. Mr Kakavas was very, very against that idea and said that - and very much stood back on the concept. It was then Mr Kakavas suggested that he's happy to play under a program which still gives him $300,000 a hand but he doesn't care about getting any commission or discount.[451]

309 The reference to Mr William's earlier explanation related to what he described as a problem with the plaintiff's "pattern of play", namely:

... the spirit of [the discount on loss program] is that usually the customer comes down and plays under that program for up to a week consecutively. What Mr Kakavas was doing was playing for short periods of time, settling the program and then coming back and starting a new program in very short gaps of time. So what he would do is, he would get a cash payment of $50,000 airfares and then he would want to come back two days later and want to get another $50,000 worth of airfares payments. So it became very ... very difficult to work out exactly where the Casino stood with regards to the edge that we were operating under. ... If he makes his trips over a very short period and close together, that 20% can look ... more like 60%or 70% when you analyse it over a longer period of time. If you add up those short consecutive trips and take an average of it, it looks like 60%, he was actually getting over 50% to 60% of his discount on losses.[452]

310 Mr Williams said that he with other colleagues approved a cheque cashing facility limited to $4.5 million, provided that Crown held security in the form of the cheque that Crown had issued to the plaintiff for the same amount at the end of the previous trip.[453]

311 The plaintiff flew to Melbourne on the Crown jet on the evening of 12 September 2005. He could not recall whether on this occasion he received any cash on the jet.[454] The Crown turnover records (again designated "Harry Kay") show he gambled from 10.00pm until midnight and won $1,925,000[455] and then again between 12.10am and 12.20am when he won a further $115,000.[456] While the Crown settlement sheet shows the plaintiff received a total of $6.5m as a result of this session, the Crown Program Player History Report for the plaintiff shows an actual win for Mr Kakavas of $2,040,000.[457] The plaintiff was provided with a Crown cheque for $2m and direct deposit of $4.5m.[458] The AUSTRAC Patron Financial Transactions Report also shows that he took the remaining $40,000 as cash at 12.19am on 13 September 2005.[459] The plaintiff left on the morning of 13 September 2005 for the Gold Coast (he believed on the Crown jet,[460] although the Crown booking records suggest not).[461]

Visit to Crown Casino 16 September 2005 (Program 8)

312 The plaintiff's next played baccarat at Crown on Friday 16 September 2005. He arrived on the Crown jet, [462] bringing with him $2.3m in front money in the form of a Commonwealth Bank bank cheque made payable to Southbank Investments Pty Ltd.[463] The Crown patron receipt for this bank cheque has been signed by the plaintiff.[464] Again he played under a special premium player agreement pursuant to which he agreed that there would be no commissions, discounts or rebate payable, but he could bet up to $300,000 per hand and up to $62,500 on the tie.[465] He gave evidence that he agreed to these conditions:

... because of my insistence to be betting the maximum that I could. I was prepared to forego - if I had lost, for example, I would have been entitled to a 20% rebate on $2.3 million, that would have made the Casino give me a cheque for $460,000. Basically what I did was, in order to keep the limit at where it was at $300,000, I forewent any commission or loss on my money should it have occurred. [466]

The plaintiff agreed that he signed this special agreement voluntarily and was happy enough to do so at the time "because I wanted to bet the maximum bet I could, $300,000, that's why I did it."[467] But he said while he could understand foregoing commissions, discounts or rebates on the previous trip because he was not then bringing any front money, he was unhappy about the arrangement this time when he did bring front money.[468]

313 Mr Williams gave evidence that he agreed with Mr Kakavas that the plaintiff would continue under the same program used on the previous occasion, save that the $4.5m cheque cashing facility would no longer apply.[469] It would be replaced by "real" front money.

314 The Crown turnover records (on this occasion, too, marked "Harry Kay") show he gambled from 5.10pm until 6.00pm and lost $2.3m.[470] This was his only gambling session on this visit to Melbourne, although he was a guest at the Crown Towers hotel on each of the nights of 16, 17 18 and 19 September 2005.

315 Following this loss and before he left the Casino, the plaintiff gave evidence that he had a conversation with Mr Williams during which he said that he "was never going to return to the Casino. I said to Mr Williams that I was going to ban myself and I said to Mr Williams that I didn't want anyone from Crown to contact me ever again." When Mr Williams asked him why, the plaintiff said he told him that the Casino "had cheated me out of a $460,000 rebate and that because the Casino had cheated me out of a $460,000 rebate I was never going to come back to the Casino again."[471] He said that, whereas pursuant to the terms of the previous programs under which he played he would have been entitled to a 20% rebate on his losses:

Because Crown Casino clearly knew that I was excited by high betting limits and I would do anything to get the highest betting limit, they made - they asked me, they didn't make me do anything, they asked me to sign this particular document agreeing that there would be no commission, no rebate, no turnover.[472]

316 The plaintiff then returned to the Gold Coast, but not courtesy of the corporate aircraft. He said that this was because "I had an argument with Crown at that time and I told them that I wasn't coming back."[473] According to the plaintiff, several days later Mr Williams telephoned him. The plaintiff said to Mr Williams, "John, look mate, I don't want to ever come back, don't call me again." He told him he "was very, very annoyed that I wasn't entitled to the rebate". The plaintiff asserted that Mr Williams said to him, "Harry, look, we don't want to lose your business, we don't want you to be upset; give us an opportunity to sort this out." The plaintiff responded, "John, I'm not interested. I'm going to go and gamble at another facility. Don't ever contact me again. I'm going to ban myself." Then Mr Williams said that -

[i]n [an] attempt to show good faith he would organise a $50,000 payment to come to my account on 30 September 2005 ... and I said to him, "John, I don't [want] any money, it's over." He said to me, "Harry, we don't want to lose you." I said to him, "John, it's over, I'm going overseas. I'm going somewhere else, it's finished." He said, "Harry, mate, don't do this." I said, "John, don't send me any money", that's how the conversation went.[474]

Despite the plaintiff's protestations, Crown on 30 September 2005 transferred the $50,000 into the plaintiff's Commonwealth Bank account at Broadbeach.[475]

317 According to the plaintiff, Mr Williams telephoned him on either Friday 30 September 2005 or Saturday 1 October. The plaintiff (as he said in his evidence) told Mr Williams that he "was going to take $1.7 million to another casino to gamble." That casino was in Macau. As Mr Kakavas recounts the story, Mr Williams then said that:

... in order to maintain my business he was prepared to make me a special offer ... He said to me, "I will tell you what I will do, for every $100 million you turn over I will give you a $100,000 casino plaque and the way you gamble, Harry, you will turn that money over very, very quickly, so what's the problem?" I said to him ..., "John, I appreciate you are trying to make good from the trip of 16 September when your casino gave me nothing, but I'm still going to go to Macau this weekend and think about it." [476]

318 The plaintiff then went to Macau. He gambled when he got there. He lost his $1.7m front money. Whilst he was away, Mr Williams (as Mr Kakavas recounted the conversation in his evidence) telephoned him to ask whether he had reconsidered his position in relation to Crown. The plaintiff said that he replied, "John, because you've made an effort to address the issue of 16 September, I will return to Crown." Mr Williams then asked him when that would be. Mr Kakavas responded that he "would let him (Mr Williams) know in due course, and I did." The plaintiff described this, and about two other conversations while he was still in Macau during this period, as being "like a protracted negotiation to get me back to Crown."[477] He recalled that during the last conversation he told Mr Williams that he had lost $1.7m and that he was flying back to Australia. According to the plaintiff Mr Williams suggested, "Why don't you come to Crown, we will look after you."

319 Mr William's evidence about this arrangement was that, in the period between 16 September 2005 and the end of that month, he had discussions with the plaintiff by telephone. He confirmed that Mr Kakavas was upset because he had lost his money very quickly and because, under the special playing agreement, he was not entitled to any of the usual add-ons following that loss. The plaintiff, in other words, wanted compensation for the benefits which, under the agreed arrangements, he did not get.[478] Mr Williams could not recall the plaintiff saying he was never going to return to the Casino, or that he would ban himself;[479] but he did not deny that these things might have been said.[480] He did reject the suggestion that he was concerned that the plaintiff might not come back to Crown. His evidence was that while there's "an element of analysing the business from an individual perspective", Crown looks at the "overall picture". An analysis of the position of individual players at any given moment would be burdensome.[481]

320 In response to the plaintiff's claim for compensation, Mr Williams said he initially insisted that they had an agreement to forgo commissions and rebates. When pressed by the plaintiff, however, he said that he "could certainly see that Mr Kakavas' request was in some respects reasonable, and I offered him an alternative compensation that I thought Crown would be happy with, and also Mr Kakavas would be happy with." He consulted Mr Aldridge and Mr Theiler about the proposal before putting it to the plaintiff. He then told the plaintiff that, although Crown was not obliged to do so, Crown "would honour the loss, the rebate that he would have been entitled to previously." For every $100m of his turnover, Crown would give him complimentary bets or the equivalent of $100,000 up to approximately $460,000 (sic). An up-front payment of $50,000 was also agreed. The plaintiff indicated his acceptance of this.[482]

321 Mr Aldridge confirmed that he was consulted about this arrangement, although he was not involved in the negotiations. He said that Crown officers agreed between themselves that Crown would pay Mr Kakavas the equivalent of the amount to which he would have been entitled had he been playing under a rebate on loss program and receiving a 20% discount on his losses. In the circumstances of 16 September, this would have been about $450,000.[483] Crown, however, declined to make a lump sum payment. Rather, it decreed that the first $50,000 would be paid on or around 30 September, while the remaining $400,000 would be paid in tranches of $100,000 when a certain turnover target was met. It was also decided that from the end of September 2005 he (Mr Aldridge) would take over from Mr Williams in liaising with Mr Kakavas, and that the plaintiff would in the future play under a commission turnover program rather than under a rebate on loss program.[484]

322 The relevant Crown documents include a document headed "Crown International PR Payouts as at 30th June 2006" which notes a sum of $50,000 paid to the plaintiff on 30 September for "dispute over discount from last visit".[485] There is also a pay out voucher of the same date for $50,000, again with the notation "dispute over discount from last visit."[486] A patron receipt (not signed by the plaintiff) showing a telegraphic transfer of $50,000 completes the documentary picture.[487] Mr Williams gave evidence that he mistakenly signed the pay-out voucher twice, once in the space provided for the patron signature and then again next to the words "authorised by".[488] He acknowledged that the agreement in relation to the payment of the balance of $400,000 in $100,000 tranches was not documented.[489]

323 It is submitted on behalf of the plaintiff that the stance taken by Crown in relation to this special arrangement is an example of its failure "to come clean on critical matters".[490] Although the arrangement was pleaded in the statement of claim, Crown did not admit it; instead, it was referred to by Mr Young in his opening and thereafter admitted - although the reasons why this course was taken have not been explained.

Visit to Crown Casino 4 & 5 October 2005 (Program 9)

324 The plaintiff flew back into Melbourne on the morning of Tuesday 4 October 2005 and went straight to the Casino. His evidence was that before this trip Mr Williams said to him that, rather than negotiate the terms of each trip, "... why don't we make it easy, why don't we have a $200,000 maximum for all your trips from now on?" They agreed that all subsequent trips would have a maximum bet of $200,000 and they would attract a commission of 0.65% on turnover.[491] Mr Kakavas could not recall whether he received any "lucky money" on this occasion.[492]

325 Mr William's evidence was that "we both agreed ... that he would ... resume on a program like ... most of our other customers came under, which was the commission program."[493] Under that program, every dollar turned over by the patron would attract a commission of 0.65%, together with a complimentary allowance of 0.1% which could be used for accommodation, food and beverages. The 0.65% was a cash benefit. Mr Williams said that this arrangement made it "more exact and precise compared to the discount on loss, where it was dependent on the length of visit and ... there's too many variables ... ". One condition of this program was that the hand limit was reduced from $300,000 to $200,000.[494] The plaintiff agreed in cross examination that the reduction in hand limit and the 0.65% commission was less attractive to him than the conditions governing his earlier gambling trips.[495]

326 On 4 October 2005 the plaintiff signed a Premium Player Program Agreement (Interstate) on a commission basis, giving him a 0.65% commission on a minimum $4m turnover together with 0.1% complimentary allowance.[496] That program provided for minimum front money of $500,000. The plaintiff brought $1,100,000 in the form of a Commonwealth Bank bank cheque payable to Southbank Investments Pty Ltd[497] and signed a patron deposit for it.[498]

327 The Crown turnover records (marked "Harry Kay") show that the plaintiff on that day gambled from 4.20pm until 6.00pm and lost $110,000,[499] A break of ten minutes was followed by another session, running from 6.10pm to 7.30pm. The result was a second loss, on this occasion amounting to $490,000[500] A further $500,000 disappeared between 6.45pm [sic] and 7.50pm.[501] The turnover on 4 October 2005 was $50,209,400, which, applying a rate of 0.65%, resulted in the plaintiff being entitled to commission of $326,362.[502]

328 The following day the plaintiff deposited a second Commonwealth Bank bank cheque, again for $1.1m made payable to Southbank Investments Pty Ltd.[503] The Crown turnover records (marked "Harry Kay") show that he gambled on 5 October 2005 from 11.05am to 11.15am and lost $1.1m,[504] and then from 11.20am to 11.30am and lost a further $238,400.[505] He received $200,000 and $38,465, being his commission on turnover of $30,769,230 and 5,917,692 respectively.[506] He then deposited a third Commonwealth Bank bank cheque - this time, for $1.5m. This too was payable to Southbank Investments Pty Ltd.[507] It was the basis of the plaintiff's indulgence in baccarat between 1.20pm until 2.20pm. In that period he won $300,000.[508] He continued to play. Between 2.25pm and 3.00pm he lost $1.8m.[509]

329 The plaintiff said he used three bank cheques instead of one "because I didn't want to take too much money to the Casino because I was losing heavily two weeks prior to this visit and I wanted to try and protect myself."[510] He recalled that he did not sign the usual settlement sheet at the end of these sessions because "I was furious and I stormed out and I just stormed out. The procedure normally is whether you win or lose, you sign a sheet but because I had just torn up $3.7 million to go with my $1.7 in Macau, to go with my $2.3 million on 16 September, you could just say I wasn't in the best frame of mind to be signing documentation." He described this trip as "one of those very blurry trips where I just wanted to get out of the place. I didn't want to be there, I just didn't want to be there - I just didn't want to be there."[511]

330 The Crown documents show that $87,897, being commission on turnover of $13,522,478, was transferred to the plaintiff's account.[512] The plaintiff's Commonwealth Bank records show the receipt of this amount on 6 October 2005.[513]

331 Some of the money used to fund this activity came from second mortgages with Equititrust arranged on 5 September 2005. About $840,000 came from a friend, Mr Sam Kusmano. The plaintiff did not tell Mr Kusmano what he was going to do with the money.[514]

332 Having lost $7.5m[515] over a short period of time, the plaintiff said that by 5 October 2005, "I had exhausted just about all of my funds and I needed some time to regroup to get more funds."[516] Clearly, Mr Kakavas had no intention of foregoing gambling altogether. This is consistent with his desire, as expressed in paragraph [329] above, to protect himself not from gambling as such, but from spending too much at any one time. It is inconsistent with the proposition that, by unconscientiously exploiting his disability, Crown induced him to gamble where otherwise he would not.

Plaintiff's Break From Gambling at Crown - October 2005 to March 2006

333 On 14 October 2005 the plaintiff's father suffered a massive heart attack at home on the Gold Coast. The plaintiff was involved in calling the paramedics and providing other assistance. His father underwent an operation on 2 November 2005. Although he survived, he was very ill and the plaintiff was involved in his care. For the following three weeks his father remained in danger, and the plaintiff never left his side. After discharge from hospital, his father (and his mother too) went to live with the plaintiff, who became his father's primary carer. The plaintiff's evidence was that these events suppressed his desire to gamble. He therefore did not gamble from 5 October 2005 until 19 February 2006, when he went to Las Vegas and lost about US$3 million.[517] He said he went to Las Vegas rather than Crown because he was "trying to change my luck. My last trip at Crown was disastrous, $3.5m, [in fact it was $3.7m] so I was just trying to vary the venue at that stage."[518] He remained in Las Vegas from 19 February until 4 March 2006. When on 6 March 2006 he returned to Australia, he went directly to Melbourne and the Casino.

334 The documentary and other evidence throw doubt on the accuracy of part of this account. Hotel invoices tendered by Crown[519] suggest that the plaintiff was a guest at the Crown Towers hotel on 24 and 25 November 2005, although the signatures appearing on the slips do not appear to be his.[520] His telephone records show calls being made from his telephone from Victoria on those dates.[521] He conceded during cross examination that, if he was staying at the Crown Towers hotel, he did not gamble. He also agreed that he went to Las Vegas on 14 November 2005 and was still there on 21 and 22 November, but did not gamble.[522] He said that this was because he had neither the urge nor the funds.[523]

335 Mr Aldridge gave evidence that he met the plaintiff in early December 2005 on the Gold Coast when he was there to host Christmas parties for Crown's Queensland based premium players. Although Mr Kakavas did not attend those parties, Mr Aldridge met him for lunch in Broadbeach and then the plaintiff took him back to his house. There they spoke of how well the plaintiff was doing in the local real estate market. This was supplemented by a scrapbook shown to Mr Aldridge which included a number of newspaper cuttings identifying Mr Kakavas as being a very successful real estate agent and property owner on the Gold Coast. Mr Aldridge could not recall any reference to the plaintiff's losses back in October 2005, or to his possible return to the Casino.[524]

336 I accept Mr Aldridge's account of this visit. He was a generally impressive witness. I find that on this occasion Mr Kakavas' used Mr Aldridge as a vehicle though whom to demonstrate his success. This, it seems to me, is incompatible with a person seeking to escape the clutches of Crown and its Melbourne Casino. I accept at the same time that the plaintiff was not then minded to press for an early resumption of his Melbourne patronage. But nor is there any evidence that, for his part, Mr Aldridge urged Mr Kakavas to return.

337 Mr Kakavas gave evidence that before he flew into Melbourne direct from Las Vegas on 6 March 2006, he spoke to either of Messrs Aldridge or Williams to negotiate the terms of his play.[525] However, he did not give evidence about whether he returned to the Casino on this occasion at his instigation or as a result of contact from Crown.

338 Mr Aldridge could not recall any detail of such conversations as he might have had with the plaintiff before this visit; he believed that they spoke generally about the terms and conditions on which Mr Kakavas would play, including when he would arrive, how long he would stay, whether he could use the Crown jet, how much front money he was going to bring, how many guests he would have, and what hand limit he would be permitted to use.[526] It would appear that, although Mr Aldridge telephoned the plaintiff on a number of occasions in October 2005, he contacted Mr Kakavas only once between 24 October 2005 and 4 March 2006.[527] The exception was a 26 second call on 1 December 2005.[528]

339 Mr Williams recalled that he did speak to Mr Kakavas by telephone from time to time during this period. Both parties initiated calls, which were social. They discussed the plaintiff's trips to Las Vegas. He may also have met Mr Kakavas when the latter visited Melbourne.[529] However, nothing which occurred during the period between October 2005 and March 2006 supports the conclusion that Crown had in place a plan to prey upon Mr Kakavas' disability so as to entrap him into continued patronage - still less for as long as it took to exhaust his funds.

Visit to Crown Casino 6, 7 & 10 March 2006 (Program 10)

340 On Monday 6 March 2006 the plaintiff signed a Premium Player Program Agreement (Interstate) on a commission basis, giving him a 0.65% commission on a minimum $4m turnover together with 0.1% complimentary allowance.[530] That program also provided for minimum front money of $500,000. It seems that the hand limit continued to be $200,000. The plaintiff exceeded the minimum front money, bringing $1,500,000 in the form of a Commonwealth Bank bank cheque payable to Southbank Investments Pty Ltd. He signed a patron deposit slip accordingly.[531]

341 The Crown turnover records (now electronic rather than hand written), gave the plaintiff his full name: "Harry Kakavas". They show that he gambled on 6 March 2006 from 12.45pm until 2.17pm and won $2,700,050,[532] then again from 2.17pm to 3.43pm losing $2,460,000[533] and then from 3.47pm to 4.03pm when he lost a further $1,730,000.[534] At the end of this session he had a balance of $10,000. The AUSTRAC financial transactions report suggests he cashed in the $10,000 remaining chips at 4.04pm.[535] The Crown settlement sheet shows he turned over $30,769,230.[536]

342 On 6 March 2006 a Gaming Chip Voucher for $100,000 in the name of "Harry Kakavas" (#41)[537] was authorised by Messrs Theiler and Williams.[538] Mr Aldridge gave evidence that this voucher was issued pursuant to the arrangement made to pay the plaintiff instalments of $100,000 for every $100m turned over.[539] It would seem that Crown was willing to pay the instalment notwithstanding that the cumulative figure for turnover in the Crown settlement sheets for this trip, and those of 4 and 5 October, is not $100m; the total figure seems to be $80,978,630.[540]

343 On 7 March 2006, the plaintiff received $200,000 in commission for the previous days' turnover[541] and deposited a further $800,000 by way of a Commonwealth Bank bank cheque payable to Southbank Investments Pty Ltd.[542] He said he did this because he was chasing his losses from the previous day.[543] The electronic Crown turnover records (again marked "Harry Kakavas") show he gambled on 7 March 2006 from 11.29am until 12.13pm and lost $1,100,000.[544] At this end of this session he was entitled to $45,242 in commission[545] which was paid out in cash.[546]

344 The plaintiff said he then returned to the Gold Coast (on the Crown jet) because he was "completely neglecting my business by this time and I had to see what was going on, I just couldn't stay."[547] He nevertheless returned to Crown on Friday 10 March 2006 with a further $4m in front money.[548] This was the Labour Day weekend in Victoria. He could not recall whether he was given any cash on the jet on this occasion.[549]

345 The electronic Crown turnover records (marked "Harry Kakavas") show he gambled on 10 March 2006 from 3.38pm until 5.52pm and won $1,160,250,[550] then from 5.53pm to 7.30pm when he won a further $1,180,500[551] and again from 8.42pm to 10.01pm when he lost $40,000.[552] At this end of this session he repurchased his bank cheque for $4m, and was given a Crown cheque for $2.4m together with a further cheque for $200,161 being his turnover commission.[553]

346 Mr Aldridge authorised the issue of four $25,000 Gaming Chip Vouchers (#27 to 30) in the name of "Harry Kakavas" on 10 March 2006.[554] This was the second $100,000 instalment under the arrangement reached in September 2005.[555] Again, it seems Crown was willing to pay this instalment even though the total turnover for this trip had not reached $100m.

Visit to Crown Casino 11 March 2006 (Program 11)

347 On Saturday 11 March 2006 the plaintiff used his Crown cheque for $2.4 as front money.[556] For this gambling session, the plaintiff signed a Premium Player Program Agreement (International) on a Commission Premium 2 footing.[557] The maximum bet remained at $200,000 per hand. Although Mr Myers opened that the use of an international agreement rather than its domestic counterpart was a further attempt to disguise the plaintiff's identity,[558] this contention was not pressed during trial. There is no evidence that the use of the form of international agreement would have had the effect of concealing the plaintiff's identity, or that it was anything other than the inadvertent use of the wrong form. The use of the international player agreement occurred on only one other occasion.

348 The electronic Crown turnover records (marked "Harry Kakavas") show he gambled on 11 March 2006 from 2.13pm until 3.42pm and lost $446,925,[559] then from 3.44pm to 4.14pm when he lost a further $493,000,[560] and then from 4.10pm to 5.43pm when he won $1,490,000.[561] The plaintiff was entitled to commission of $202,698 on his turnover of $31,184,300.[562] At 5.46pm the plaintiff withdrew $12,698 in cash and received two Crown cheques, one for $3m and the other for $190,000.[563] He then redeposited his $3m cheque at 6.46pm[564] and returned to gamble at 6.48pm until 7.49pm when he won $1,000,000,[565] again from 9.16pm to 9.26pm when he lost $570,000,[566] then from 9.28pm to 10.53pm when he lost $519,950[567] and then from 9.26pm to 12.21am when he won $2.1m.[568] Following this second bout of gambling the plaintiff was entitled to commission of $255,598 on turnover of $39,322,700.[569] At 12.48am he withdrew $5,598 in cash and received two Crown cheques, one for $250,000 and the other for $5,050,000.[570]

349 On 11 March 2006 two $50,000 Gaming Chip Vouchers in the name of "Harry Kakavas" (#21 and 22) were issued.[571] This was the next instalment under the agreement between the plaintiff and Mr Williams.[572] Yet again, I note that the payment was made even though the turnover was less than $100m.

Visit to Crown Casino 12 March 2006 (Programs 12 & 13)

350 On Sunday 12 March 2006 at 12.09pm the plaintiff deposited into his Crown account his two Crown cheques for $190,000 and $250,000 from the previous day's play as front money, together with his commission cheque for $200,161 from 10 March 2006.[573] The plaintiff this time signed a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing showing front money of $640,000 (in fact the money used totalled $640,161).[574]

351 The electronic Crown turnover records (marked "Harry Kakavas") show he played from 12.05pm to 1.39pm and lost $450,000.[575] At 12.58pm on 12 March 2006 the plaintiff deposited a Commonwealth Bank bank cheque for $4m into his Crown account.[576] He then played again from 1.40pm to 3.11pm and lost another $189,925,[577] and from 2.01pm to 5.03pm (it seems on a different table) and won $644,000.[578]

352 The times shown in the Crown turnover records for the plaintiff frequently show periods of overlap which, if taken as accurate, would suggest that at times he was playing at two different tables simultaneously. These anomalies were not put to Mr Kakavas or explained by any of the Crown witnesses, nor were they the subject of submissions. Whatever the explanation, I have taken it that the amounts shown as either won or lost in all the turnover records tendered by the defendants are to be attributed to the plaintiff. He played again from 4.51pm to 5.42pm and lost $410,000,[579] and from 5.35pm to 6.14pm and won $1,457,000.[580] At the end of this session he received commission of $357,213 on turnover of $54,955,800[581] together with winnings of $2,640,000. From these he redeemed his $4m bank cheque at 6.32pm and received two Crown cheques for $1m and $997,374.[582]

353 On 12 March 2006, two $50,000 Gaming Chip Vouchers in the name of "Harry Kakavas" (#23 and 24) were issued.[583] This appears to be the final instalment under the 2005 agreement between the plaintiff and Mr Williams.[584] This is another example of Crown's willingness to pay a $100,000 instalment without Mr Kakavas achieving the $100m precondition.

354 At 9.50pm on 12 March 2006 the plaintiff deposited a $4m Commonwealth Bank bank cheque into his Crown account and drew $1m of chips[585] with which he resumed gambling at 9.49pm through to 11.16pm. He again played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[586] He lost $890,000.[587] Strangely, the electronic Crown turnover records also show him gambling at another table between 9.46pm and 12.05am on 12 March 2006, this time winning $1,890,000.[588] At the end of this session he had turned over $19,511,000, on which he received commission of $126,822.[589] He received two Crown cheques for $1m and $126,822[590] and redeemed his $4m bank cheque at 12.10am on 13 March 2006.[591]

Visit to Crown Casino 13 March 2006 (Programs 14 & 15)

355 On Monday 13 March 2006 at 12.58am the plaintiff again deposited into his Crown account his $4m Commonwealth Bank bank cheque and withdrew $1m in chips.[592] He then commenced another gambling session, again playing under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[593] The session began at 1.00am and continued until 2.34am.[594] He won $370,000. He then played again from 2.40am to 4.01am and lost $2,160,000.[595] At 3.48am he withdrew a further $1m in chips from his Crown account[596] and played from 4.01am to 5.36am when he won $2,755,000.[597] At the end of this session he received commission of $286,813 on turnover of $44,125,000.[598] At 5.41am on 13 March 2006 the plaintiff received two Crown cheques, one for $1m and the other for $286,813.[599] He redeemed his $4m Commonwealth Bank bank cheque.[600]

356 At 12.04 on Monday 13 March 2006 the plaintiff deposited into his Crown account the cheque for $997,374 which he had received as part of his winnings the previous afternoon.[601] He then withdrew $500,000 of chips and gambled from 12.00 to 12.59pm and won $525,500.[602] At 1.09pm he redeposited into his Crown account (which still had a balance of $497,374) a total of $9,502,626 comprising six Crown cheques for various winnings and commissions over the last number of sessions, together with $1,005,500 in chips and cash of $828.00. The plaintiff then withdrew the entire balance as a Crown cheque for $10m.[603] At this point he therefore had $10m in winnings and commission, together with his $4m Commonwealth Bank bank cheque.

357 In relation to the pattern of winning, drawing cheques, and then redepositing them to continue his gaming throughout this weekend, using several new programs, the plaintiff gave the following evidence:

I might say to the Casino right, I'm going home now. So what they do is they close the program. Then ... over dinner, I may change my mind and I may say, "No, you know, I think I might keep going." So when you go back into the Casino they start you all over again, they put you on the program and instead of indicating your front money is $4 million, because you have ... actually won your front money a bit earlier they are saying your front money is 5.8. So then I might say, well, you know, I might go and have a rest now. Then I might wake up in the middle of the night, 2 a.m. not uncommon, and say, you know, I might go and play again. The Casino, thinking I might have gone or I was going, has closed the program and they've made me re-open another program. This is why you see so many programs in particular between 10 March and 13 March because I'm opening and closing the programs.[604]

Harry Kakavas wanted to go home, that's why he took the Crown Casino cheques, Harry Kakavas wanted to go home and he couldn't because he kept gambling. ... I kept gambling, and I settled those accounts and kept gambling because I was saying Harry, wakey, wakey, time to go home.[605]

He agreed in cross examination that he closed each program over this weekend at a point when he was in front, in some instances substantially in front, and was able to redeem the bank cheque that he had used as front money. When he opened each new program, he used only part of his winnings or existing front money. He said that was because he "knew I had the availability of the other funds when I was going to lose."[606]

358 Following this visit, the plaintiff returned to the Gold Coast on Monday 13 March 2006 and banked his two cheques for $4m and $10m. He gave evidence that on this day Mr Williams called him and they spoke about a BRW book published that day about the young rich who were worth $10m or over. He recalled Mr Williams saying, "I didn't see your name in the book, Harry, and I've just given you $10 million." He then told the plaintiff that the Crown jet would remain at his disposal if he wanted to return to the casino in the next day or two. But the plaintiff said that, because he had been neglecting his family and work, he replied, "John, let me just get some work done this week and if you don't mind, can you get the jet to pick me up maybe on Friday so I can get the full week through."[607]

359 Mr William's only recollection of discussions with the plaintiff at this time was the plaintiff being "very quick and very pleased to tell me that he had just won $10m."[608]

Visit to Crown Casino 17 to 19 March 2006 (Program 16)

360 The plaintiff, borne by the Crown jet, returned to the Casino on Friday 17 March 2006, arriving in Melbourne at about 1.00pm.[609] He again brought a Commonwealth Bank bank cheque for $4m payable to Southbank Investments Pty Ltd;[610] and he again played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[611] The maximum bet was $200,000 per hand. On 16 March 2006 a $50,000 Gaming Chip Voucher (#25) was authorised.[612] According to an annotation on the authorisation sheet, it was presented to the plaintiff in the presence of Mr Williams, presumably on the plaintiff's arrival on 17 March.

361 Gambling commenced at 2.38 that afternoon. Mr Kakavas opened with $2m from his account, using also the $50,000 Gaming Chip Voucher.[613] He finished this session at 4.03pm having won $355,500.[614] Another session followed from 4.01pm to 4.59pm during which he won another $790,000.[615] He then lost $345,000 during the following session between 4.59pm and 5.38pm.[616] Strangely, the Crown turnover records show the plaintiff also gambling on this day between 4.04pm and 6.22pm on another table and winning $1,155,000.[617] There followed a three minute session between 6.27pm and 6.30pm when he is recorded as winning $38,000.[618]

362 At 7.00pm[619] on 17 March the plaintiff received commission of $196,547 on turnover of $30,238,000. He redeemed his $4m Commonwealth Bank bank cheque and received a Crown cheque for $2.2m and cash of $547.[620] Crown has not tendered any deposit or withdrawal slips in relation to these transactions.

363 It was on that day, possibly after redeeming his bank cheque and collecting his winnings at 7.00pm, that the plaintiff had a conversation with Mr Horman on the Riverside Promenade to which I will refer in greater detail in paragraph [550] below. The plaintiff recalled telling Mr Horman that he had won $10m on the previous weekend and that he was "$5m in front of the Casino" that day. He told Mr Horman that he was "thinking about giving the game up and having a break." The plaintiff remembered that Mr Horman may have agreed that the plaintiff should ta[621]time off.621

364 Following a break, the plaintiff resumed playing at 10.30pm and gambled until 12.06am, losing $685,000.[622] He is also recorded as playing on another table from 10.16pm to 1.53am and losing $400,000.[623] A further session followed between 1.44am and 3.23am, during which he won $1,139,500.[624]

365 The plaintiff appears to have recommenced his playing on Saturday 18 March 2006 at 1.16pm. Between then and 3.00pm, he lost $1,690,000.[625] He then played from 2.59pm to 4.19pm, losing $1,150,500.[626] This was followed by a session from 4.15pm to 5.54pm when he lost another $1,367,500.[627] He then won $1,462,500 between 5.56pm and 7.33pm,[628] but lost $952,500 between 7.36pm and 9.25pm.[629] The Crown turnover records show him playing on another table from 7.33pm to 10.47pm on 18 March 2006 and winning $178,000.[630] He then apparently played from 10.48pm to 12.35am on one table and lost $1,203,500,[631] while playing between 9.27pm and 12.56am on another table and losing $1,110,000.[632] There follow records suggesting that he played from 12.59am to 1.51am and lost $1,625,000 on table 8802,[633] while playing on table 8801 between 1.01am and 2.36am and winning $835,000.[634] He then played between 3.30am and 3.38am and lost $527,500,[635] but between 3.39am and 4.32am won $1,990,000.[636]

366 A Crown settlement sheet for 18 March 2006 at "4.30" shows the plaintiff was entitled to commission of $357,474 on turnover of $54,996,000. He redeemed his $4m bank cheque and received two Crown cheques for $1.5m and $350,000 together with cash of $7,474.[637] A later settlement sheet for 18 March 2006 shows him receiving commission of $755,513 on turnover of $116, 233,500.[638] The records tendered by the defendants in relation to this program are both incomplete and in a state of disorder: the turnover records appear to run back to front, and in some places are mixed up, while no deposit or withdrawal documents have been tendered.

367 On Sunday 19 March 2006, the Crown turnover records show the plaintiff playing from 12.19pm to 2.14pm and winning $365,050.[639] He received commission of $124,843 on turnover of $19,206,500 and a total payment of $625,361.[640] He then played from 2.10pm to 3.12pm and lost $980,000.[641] At 3.17pm, he received further commission of $149,788 on turnover of $23,044,300. He was paid a Crown cheque of $150,000 together with cash of $149.[642]

368 The plaintiff returned, a passenger in the Crown jet, to the Gold Coast on the afternoon of 19 March 2006.[643] Shortly thereafter, on 21 March 2006, he transferred US$2.9 million to Las Vegas. He followed his money into the Bellagio Casino, but left without it. His losses amounted to US$3m.[644]

369 In the absence of the influence of Crown, Harry Kakavas might not have gambled in Melbourne. In the absence of the influence of Crown, Harry Kakavas would have, and did, gamble elsewhere.

Visit to Crown Casino 30 March to 3 April 2006 (Program 17)

370 The plaintiff returned to Crown on Thursday 30 March 2006. He was accompanied by a Commonwealth Bank bank cheque for $1.8m, payable to Southbank Investments Ltd.[645] The terms under which he played were again those of Crown's Premium Player Program Agreement (Interstate), on a Commission Premium 2 footing.[646] The maximum bet was $200,000 per hand.

371 The Crown turnover records show that the plaintiff gambled from 11.20am to 1.21pm on 31 March 2006 and lost $400,000.[647] This was followed by a session from 1.10pm to 2.31pm during which he lost a further $207,000.[648] He lost another $770,000 between 2.20pm and 2.53pm.[649] He then deposited into his Crown account commission of $200,000 on turnover of $30,769,239[650] and drew that amount as chips to gamble at table 8101 from 2.54pm to 4.05pm when he won $2,408,500.[651] He gambled again from 4.08pm to 5.33pm and won another $807,000.[652] But the Crown turnover records show gambling under his name at table 8102 on 31 March 2006 from 2.31pm to 5.58pm during which he lost $1,080,000.[653] Another session followed at table 8101 between 5.38pm and 6.58pm where he lost $2,320,000.[654] At this point he was entitled to commission of $296,000 on turnover of $45,538,461.[655] He drew this as chips at 6.59pm,[656] and gambled between that time and 7.09pm, during which he lost $290,000.[657]

372 It seems that over the next several days the plaintiff remained as a guest of the Crown Towers Hotel, but did not gamble, before he resumed playing on 3 April 2006. He agreed that, during that period, he entertained friends at dinner at various restaurants in the Crown complex.[658]

373 On Monday 3 April 2006 at 11.08am the plaintiff deposited into his Crown account an ANZ bank cheque for $1.5m again payable to Southbank Investments Ltd.[659] The Crown turnover records show that he then gambled from 11.04am to 12.41pm and lost $1,456,000.[660] He was entitled to commission of $91,811 on turnover of $14,124,762,[661] from which he took $90,000 in chips and $1,811 in cash at 12.43pm.[662] He then gambled further from 12.42pm to 12.52pm and lost $129,500.[663] He was then entitled to commission of $2,490 on turnover of $383,000. This was deposited into his Crown account.[664]

Visit to Crown Casino 13 April 2006 (Program 18)

374 The plaintiff returned to Crown on Thursday 13 April 2006, bringing a Commonwealth Bank bank cheque for $1.5m payable to Southbank Investments Ltd.[665] He again played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[666] It would appear from the Crown turnover records that on this occasion the maximum bet was increased to $225,000 per hand, although no witnesses gave evidence about the circumstances which led to this change.

375 The Crown turnover records show the plaintiff gambled from 5.29pm to 6.07pm and lost $1,499,950.[667] He was entitled to commission of $29,249 on turnover of $4,499,700, which was added to the balance of $2,490 from the previous trip. He took this as $30,000 of chips and cash of $1,739.[668] He then gambled that too from 6.13pm to 6.17pm and lost $29,925. He cashed the remaining $75 of chips together with the $2,837 commission on this last session.[669]

Visit to Crown Casino 27 April 2006 (Program 19)

376 The plaintiff returned to Crown on Thursday 27 April 2006. He was again accompanied by a Commonwealth Bank bank cheque for $1.7m, with the slight change that it was payable to Southbank Investments Pty Ltd.[670] This time he played under a Premium Player Program Agreement (International) on a Commission Premium 2 footing.[671] Again, the maximum hand level appears to have been $225,000.

377 The Crown turnover records show the plaintiff gambled from 12.59pm to 3.09pm on 27 April 2004 at table 8802 and lost $797,550.[672] The records also show him gambling at table 8801 from 12.57pm to 3.13pm and losing $900,000.[673] The plaintiff received commission of $125,000 on turnover of $19,230,769[674] which he drew as chips at 3.13pm[675] He then gambled further from 3.13pm to 3.43pm and lost another $115,000.[676] At 4.09pm, he deposited a further two bank cheques,[677] one drawn on the Commonwealth Bank and the other on the ANZ Bank. Both were payable to Southbank Investments Pty Ltd.[678] He lost the entire $500,000 between 4.06pm and 4.22pm.[679] He received commission of $31,206 on turnover of $4,800,831.[680] He drew this commission as cash at 4.23pm.[681]

378 The plaintiff continued as a guest of the Crown Towers Hotel until 30 April 2006.

Visit to Crown Casino 3 to 5 May 2006 (Program 20)

379 The plaintiff returned to the Casino on Wednesday 3 May 2006, bringing an ANZ Bank bank cheque for $2m payable to Southbank Investments Pty Ltd.[682] This time he played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[683] The maximum bet level recorded in the Crown turnover records appears to have been increased to $250,000 per hand.

380 On 3 May 2006 the plaintiff applied for and was granted a $500,000 cheque cashing facility with Crown.[684] The application bears an annotation "*Restricted*". It would appear that the application inspired a credit check which was performed on 3 May by a Crown officer named Sandra.[685] That check seems to have included contact by her with Jupiters Casino, the Treasury and Star City Casino. The words "(Excluded Patron)" appear next to the Jupiters Casino entry.

381 In the written submissions prepared on behalf of the plaintiff, it is said that the failure of Crown to call Sandra to give evidence about this document, despite an undertaking by Mr Craigie to do so, is significant. According to the plaintiff, the "clear inference ... [is] that it would have damaged Crown's defence that it did not know about Mr Kakavas' exclusion from Star City by the NSW Police Commissioner."[686] This submission relates to cross examination of Mr Craigie about notations on the credit check document. Mr Myers put it to Mr Craigie that the phrase "excluded patron" applied not only to the Jupiters Casino check, but also to the results of the enquiries with both the Treasury and Star City casinos. Initially, Mr Craigie agreed:[687] he clearly took the symbol "Ø" appearing next to those two entries, and below the words "(Excluded Patron)", to mean "ditto". Later however, Mr Craigie changed his evidence to say he thought the symbol "Ø" meant "zero".[688]

382 I agree with Mr Craigie's later evidence. I find that the phrase "excluded patron" appearing on that document related only to the enquiry made of the Jupiters Casino. The symbol "Ø" clearly means "none" or "zero"; so, for example, it is used in that sense where it appears next to the words "current facility" at the top of the document. In these circumstances, I do not think that I can draw the inference which the plaintiff would have me draw. Her evidence may not have assisted the Crown case, but in her absence I cannot (as it seems to me) infer that she discovered, and told her employer about, the Sydney exclusion. At the same time, her apparent failure to make the discovery that Mr Kakavas was subject to an exclusion order in New South Wales probably reflects badly upon Crown. This is not, however, a matter relevant to the issues in this trial.

383 The Crown turnover records indicate that, after drawing $1m of chips at 4.11pm,[689] and the balance at 4.29pm,[690] the plaintiff gambled at table 8802 from 4.13pm to 5.59pm on 3 May 2006 and lost $400,000,[691] while at the same time (from 4.11pm to 5.56pm) he was also gambling at table 8801 and losing $1,600,000.[692] At 6.01pm, he received commission of $114,335 on turnover of $17,590,000,[693] which he withdrew as $14,335 cash and a $100,000 chip purchase voucher.[694] He gambled and lost all of the $100,000 in chips between 6.00pm and 6.04pm.[695] At 8.04pm the plaintiff drew on the $500,000 cheque cashing facility ("CCF") to purchase $500,000 of chips.[696]

384 On 4 May 2006 at 12.44pm the plaintiff deposited into his Crown account a Commonwealth Bank bank cheque for $1m payable to Southbank Investments Pty Ltd. He drew that amount as chips.[697] He gambled at table 8001 from 12.43pm to 2.28pm and lost $325,000, and on table 8002 between 2.24pm and 2.28pm and lost $210,000.[698] He received commission of $7,000 as cash at 12.48pm.[699] He then lost another $100,000 between 2.35pm and 2.38pm.[700] He received further commission in the sum of $105,000, of which, at 2.34pm, he drew $5,000 as cash and the balance of $100,000 in chips.[701] Shortly thereafter, at 2.40pm, he received another $2,900 commission. He took this in cash.[702]

385 Later on that day (4 May 2006) the plaintiff applied for and was granted a second cheque cashing facility for $500,000 which he used to purchase chips to that value at 4.10pm.[703] The plaintiff then engaged in baccarat from 4.05pm to 5.43pm, during which time he won $5,194,000.[704] At 5.48pm and 5.54pm he deposited $4m and $1.2m of chips into his Crown account.[705] Between 5.48pm and 5.55pm he gambled briefly at table 9901 and lost $50,000.[706] The Crown turnover records also show him gambling from 5.43pm to 10.52pm at table 9902 and losing $404,875,[707] while gambling at table 9901 between 8.53pm and 11.58pm and losing $815,125.[708] This was followed by a session at table 9902 between 11.51pm to 1.11am when he lost another $882,000,[709] and a session at table 9901 from 11.58pm to 2.30am when he lost $816,550.[710] The plaintiff received commission of $105,000 at 2.34am, which he took as a $100,000 chip purchase voucher and $5,000 in cash.[711] A final session occurred between 2.26am and 3.52am during which he won $1,105,350.[712] At 4.50am on 5 May 2006 he deposited $3m worth of chips into his Crown account and had $1.5m transferred out.[713]

386 On 5 May 2006 at 10.46am the plaintiff withdrew $2m from his account in the form of a chip purchase voucher.[714] He played from 10.45am to 12.30pm and lost $1,549,050,[715] then from 12.27pm to 1.30pm and won $1,356,000.[716] Another series of sessions followed from 3.17pm to 3.48pm during which he lost $749,500,[717] from 3.46pm to 5.33pm during which he lost another $1,362,250,[718] and from 5.34pm to 5.41pm when he lost $237,500.[719] He received commission of $1,068,000 on turnover of $164,076,692, which he drew as a chip purchase voucher at 5.35pm.[720] He gambled again at table 9901 from 5.38pm to 7.09pm and lost $1,021,500,[721] while also playing at table 9902 from 6.57pm to 8.22pm and losing $1,702,000.[722] During this period he also seems to have deposited a further bank cheque for $2m and used those funds to draw a chip purchase voucher at 6.50pm.[723] He received commission of $200,000 which he also drew as a chip purchase voucher at 8.23pm.[724] He played from 8.22pm to 8.27pm and lost that $200,000.[725] He took two amounts of commission ($3,000 and $2,000) as cash.[726] The plaintiff was granted another $500,000 cheque cashing facility[727] on which he drew at 8.29pm.[728] He played from 8.22pm to 11.43pm and lost $537,000.[729] Towards the end of that session, he deposited cash of $94,000 to draw a further chip purchase voucher at 11.02pm.[730] Following this last bout of play he was entitled to commission of $42,619,[731] which he drew as cash at 11.45pm.[732]

Visit to Crown Casino 11 and 12 May 2006 (Program 21)

387 The plaintiff's next visit to Crown occurred on Thursday 11 May 2006. The Crown records suggest that he arrived (courtesy of the Crown jet) at about 6.30pm.[733] He again used a Commonwealth Bank bank cheque for $2.5m payable to Southbank Investments Pty Ltd.[734] It would seem, however that he did not begin to play until the following day, when at 12.00 noon he drew a chip purchase voucher for $2.5m.[735] He again played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[736] The hand limit seems to have remained at $250,000. The Crown turnover records show that he played from 12.02pm to 2.09pm and won $483,325.[737] During this session, at 12.36pm, the plaintiff appears to have also drawn upon a $500,000 cheque cashing facility, granted to him by Crown, to obtain a $500,000 chip purchase voucher.[738] This gambling session was followed immediately by another (from 2.09pm to 4.19pm) during which he won a further $585,000.[739] There then followed several bouts of play: from 4.16pm to 4.33pm, during which he lost $1,045,000;[740] another from 4.22pm to 5.59pm, resulting in a loss of $192,375;[741] and then another from 5.56pm to 6.07pm - again a loss, this time of $1,312,500.[742] He is also shown as losing $500,000 at table 8802 between 6.05pm and 6.07pm.[743] At 6.08pm he drew a chip purchase voucher using $400,000 in commission.[744] He also drew again on the $500,000 cheque cashing facility at 6.15pm.[745] With the combined $900,000 in chip purchase vouchers he gambled from 6.07pm to 6.20pm and lost the entire amount.[746] He received commission of $15,350 which he took as cash at 6.22pm.[747]

388 The plaintiff returned to Crown on Thursday 18 May 2006. He arrived on the Crown jet at about 12.00 noon.[748] He brought with him a Commonwealth Bank bank cheque for $2.5m payable to Southbank Investments Pty Ltd which he deposited into his account at 1.06pm.[749] He again played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[750] Again, the maximum bet was $250,000. The Crown turnover records show that he played from 1.06pm to 2.32pm and lost $44,375.[751] This was followed by further play from 2.32pm to 2.51pm during which he lost $2,545,000.[752] During the course of this session, at 2.40pm, he also used commission of $90,000 in the form of a chip purchase voucher[753] and drew $500,000 on a cheque cashing facility at 2.46pm.[754] At the end of this play he received commission of $20,803. He took this as cash.[755]

389 The day before he arrived, Messrs Williams and Theiler authorised three $10,000 Gaming Chip Vouchers (#200, 201 and 202). All were in the name of "Harry Kakavas".[756] Mr Aldridge gave evidence of his belief that, during the period of his direct responsibility for liaising with Mr Kakavas (in October 2005, and from March to August 2006) vouchers were converted into cash for provision to the plaintiff on the jet on five or six occasions. The AUSTRAC patron financial transactions report, required under legislation to record any cash payments over $10,000 and prepared by the Crown "cage", records five occasions during which a cash payment of $30,000 or $50,000 was made to the plaintiff at a time when he is also shown to be taking advantage of his access to the Crown jet.[757] Mr Theiler explained that references in that document to transactions under the code "OO" (meaning "other out") indicates "a transaction which has not gone through Mr Kakavas' deposit account. It could be a voucher which is exchanged for cash and cash has been taken."[758] Such a reading of the documents would suggest cash may have been provided to the plaintiff on the jet on 8 September 2005, 9 September 2005, 17 May 2006, 24 May 2006 and 6 July 2006. Mr Aldridge recalled personally providing the plaintiff with cash on one occasion, which was his last gambling visit on 17 August 2006.[759]

390 Mr Williams gave evidence about discussing cash incentives with the plaintiff in May 2006. According to him, it was Mr Kakavas who wanted to know what cash incentive Crown could provide to him, given that he had received such incentives in Las Vegas. It was likewise the plaintiff who would indicate before a trip how he would like the money presented to him - either as cash or chips. Mr Williams recalled that one request was for the cash to be presented to him when he boarded the jet on the Gold Coast. After consulting Messrs Aldridge and Theiler, Mr Williams approved a cash payment in that form.[760]

Visit to Crown Casino 24 to 26 May 2006 (Program 23)

391 On Wednesday 24 May 2006 the plaintiff, as a passenger on the Crown jet, returned to the Casino. He arrived at the airport at about 4.00pm.[761] On the same day, Messrs Aldridge and Theiler authorised Gaming Chip Vouchers for $25,000 and $5,000 (#44 and 155 respectively) in the name of "Harry Kakavas".[762] The financial transactions report shows the cash transaction for $30,000 going through at 9.18am on 24 May 2006.[763] It is therefore likely this was an instance when the cash was on the jet when it arrived at the Gold Coast.

392 At some time during this period, the plaintiff had available two bank cheques each for $2m. One of these was issued by the ANZ Bank. The other, issued by the National Australia Bank, was (as Mr Kakavas recorded in his evidence) the proceeds of a loan from a friend.[764] At 6.08pm on 24 May, he deposited into his Crown account an ANZ Bank bank cheque for $2m payable to Southbank Investments Pty Ltd, and drew a chip purchase voucher.[765] He again played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[766] The maximum bet remained at $250,000 per hand. The Crown turnover records show that the plaintiff played at table 9902 from 6.08pm to 7.05pm and won $506,915.[767] He is next shown as playing from 9.40pm to 9.59pm at table 9902 and losing $1.2m.[768] Curiously, the records show him gambling at table 9901 from 4.51pm to 11.01pm and losing $1,304,000.[769] During the course of this session he also appears to have drawn on a $500,000 cheque cashing facility.[770] On receiving commission of $143,500 at 11.02pm,[771] he then played briefly from 11.01pm to 11.10pm and lost another $45,400.[772] He is not recorded as gambling further on this day despite having some $98,000 of chips. At 11.14pm, the plaintiff received commission of $2,829 in cash for this last brief bout of play.[773]

393 On 25 May 2006 at 2.58pm the plaintiff deposited a further $2m into his Crown account in the form of the NAB bank cheque payable to Southbank Investments Pty Ltd.[774] He then gambled from 3.04pm to 5.05pm and won $1,002,000.[775] This was followed by another bout of play from 5.03pm to 5.48pm, during which he seems to have used a $500,000 cheque cashing facility granted to him that day.[776] He won a further $4,700,350.[777] At 5.48pm, he deposited, in chips, two tranches of $2m - and seems to have redeemed both the ANZ and NAB $2m bank cheques.[778] Following a break, the plaintiff returned to gamble further from 9.57pm to 11.45pm. He lost $1,590,500.[779] He then lost another $1,604,500 between 11.41pm and 12.36am.[780] He received commission of $300,000 at 12.37am[781] and gambled further from 12.43am to 12.47am. He lost it all.[782] He then drew upon the $500,000 cheque cashing facility and played from 12.48am to 12.55am. He lost another $500,000.[783]

394 It also seems that, at some time on 25 May, the plaintiff was given a cash payment of $30,000. Messrs Aldridge and Theiler authorised three $10,000 Gaming Chip Vouchers (#203, 204 and 205) to be issued in the name of "Harry Kakavas".[784] The AUSTRAC financial transactions report shows that the cash was posted at 4.29pm.[785]

395 Although the documentary records are equivocal, it appears that, at 9.58am on 26 May, the plaintiff for the second time deposited into his Crown account the ANZ $2m bank cheque,[786] and returned to playing baccarat at table 8802 at 10.11am. The player funds record indicates that this deposit occurred on 24 May; but this is almost certainly a mistake, given that an earlier deposit of such a cheque had already been recorded that day, and the sequence of entries accords with a (second) deposit on 26 May. Certainly, it seems clear from the documentary evidence that Mr Kakavas re-used both the ANZ and the NAB bank cheques for gambling purposes, and did so on 26 May. Having provided those funds, the plaintiff played until 11.43am and lost $1,995,000.[787] He then lost the remaining $5,000 in a single tie bet at 11.46am.[788] His next step, it seems, was to deposit the NAB bank cheque into his Crown account. This happened at 12.01pm.[789] Mr Kakavas subsequently used $200,000 in chips between 12.02pm and 12.41pm. Success followed, in the shape of a win of $1,070,000.[790] The Crown turnover records, however, also show the plaintiff playing at table 8801 from 10.11am to 1.33pm and losing $2,949,950.[791] Following this day's play the plaintiff took his commission of $192,441 in the form of a Crown cheque for $192,000 and cash of $441.[792] The plaintiff's Commonwealth Bank records show the cheque being deposited on 29 May 2006.[793]

396 On Wednesday 31 May 2006 the plaintiff was flown to Melbourne on the Crown jet.[794] He was also the beneficiary of two Gaming Chip Vouchers for $25,000 each (#45 and 46) in the name of "Harry Kakavas".[795] These had been authorised that day by Messrs Aldridge and Theiler.

397 On this visit the plaintiff brought with him a Commonwealth Bank bank cheque for $2m payable to Southbank Investments Pty Ltd. He deposited this into his account at 7.58pm, and drew a $1m chip purchase voucher.[796] Once more he played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[797] The maximum bet was $250,000 per hand. The Crown turnover records show the plaintiff playing from 8.06pm to 9.48pm and winning $2,230,225.[798] He then played at table 9901 from 9.59pm to 11.42pm and lost $900,000,[799] followed immediately by a session between 11.42pm and 2.31am, during which he lost $3,399,975.[800] It would appear that towards the end of this session (at 2.27am) he drew on a $500,000 cheque cashing facility granted to him.[801] He is also recorded as playing at table 9902 between 8.11pm and 1.16am and losing $187,500.[802] At 2.32am the plaintiff received commission of $234,000 and drew a chip purchase voucher in that amount.[803] He then gambled at table 9901 from 2.33am to 2.48am and won $216,000.[804] He is shown as gambling at table 9902 from 1.16am to 2.50am and losing $450,000.[805]

398 The final position at the end of this session appears to be that the plaintiff had lost $2,230,750.[806] He was entitled to commission of $270,386 which was transferred to his Commonwealth Bank account by telegraphic transfer.[807] The settlement sheet for this amount bears the annotation in the provision for the patron's signature "unavailable to sign balance of rebate [the rest is indecipherable]." The plaintiff gave evidence in the following terms about his failure to sign:

it would have been another one of my storming out sessions and I probably didn't stay back to sign the documents and I was sustaining very heavy losses again and I told the Casino that I was leaving. These documents ... at the end of a session when you finish playing, sometimes could take five, 10, 15 minutes to prepare. They are quite extensive and having lost so much money I wasn't interested in waiting around for the Casino to prepare documents for me to sign, so I just stormed out.

He agreed that his behaviour was demonstrably angry and upset and added:

my behaviour was at times not very good. I would regularly bang the table ... with my fist, I would rip the cards, which is a big no-no in a casino, they would have to stick it together again. I would curse the cards. I would walk around the room like a caged lion. My behaviour wasn't the best. ... by and large the Casino staff and myself were very polite to each other. I didn't blame the Casino staff for my losses, I was just angry with myself basically...[808]

399 In cross examination, however, the plaintiff agreed that he presented a calm exterior to his fiancée when he was not gambling. Even when he became upset when gambling and cursed the cards and his misfortune, he remained polite to the Crown staff because "they haven't done anything to me."[809]

400 The Crown aircraft booking sheet shows that the plaintiff returned to the Gold Coast on 1 June 2006. He did so as a passenger on the private jet, leaving at 8.00pm.[810]

401 The plaintiff stayed at the Crown Towers Hotel overnight on 13 June 2006. He agreed that he did not gamble on this occasion. He maintained, however, that this was because he did not have the necessary funds.[811]

402 On 29 June 2006, the plaintiff travelled to the Philippines using the Crown jet. The trip was his idea. In his evidence in chief he said the offer of the jet came from Mr Williams; but in cross examination he agreed it was he who asked for it.[812] The plaintiff recalled Mr Williams saying that the trip would help Mr Kakavas to "re-energise" himself.[813] Mr Williams gave evidence that he discussed the plaintiff's request with Messrs Theiler and Aldridge. The result was their agreement to provide the jet as a means of reducing some of the plaintiff's accrued complimentary benefits.[814]

403 The plaintiff gave evidence that he did not return to Crown for about a month. His reason, he said, was that he had on 31 May 2006 exhausted his funds; and he needed time within which to replenish them.[815] He gave evidence that at this time he was paying so much attention to his gambling that he was neglecting his real estate consultancies and developments; and this at a time when the real estate market was very buoyant, and there were many opportunities in the market.[816]

404 The plaintiff recalled a discussion with Mr Aldridge which was relevant because, during the course of it, Mr Kakavas threatened to "bar" himself unless he was given some further credit; but this Crown was unwilling to give.[817] He also had a telephone conversation with Mr Williams during which he explained that he was waiting for about $1.5m in settlement funds to be provided to him. These were due on Friday 7 July 2006. The two discussed whether the plaintiff could have the use of the Crown jet to travel to the Philippines for another weekend break on that Friday. Mr Williams agreed. The plaintiff mentioned that he wanted "to get one more gambling trip in before I went." Given the plaintiff's position in relation to the pending funds of $1.5m due on 7 July, Mr Williams said he would arrange a special $1.5m credit for the plaintiff on the basis that the plaintiff would repay Crown when the settlement took place.[818]

405 The plaintiff did fly to Melbourne on the Crown jet on Thursday 6 July 2006, arriving at 3.30pm.[819] Mr Theiler saw to it that $50,000 in cash was placed on the jet; this was the only occasion when he was involved in making such an arrangement.[820] A Crown patron complimentary transaction report confirms that the plaintiff was provided with $50,000 of lucky money on this day.[821] A complimentary voucher uses the phrase "Luck money" and bears the annotation "cash taken by patron".[822] This appears to be the first Crown document to use that description. This amount is also included in the AUSTRAC financial transactions report.[823]

406 Crown granted the plaintiff a $1.5m cheque cashing facility as agreed.[824] Once more he played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[825] The maximum bet was $250,000 per hand. The Crown turnover records show he played from 4.29pm to 5.09pm and lost $1.5m.[826] He received commission of $29,624, which he took as cash.[827]

407 The plaintiff returned to the Gold Coast on the Crown jet, and the following day was flown to the Philippines, where he remained until Sunday 9 July 2006.[828]

Visit to Crown Casino 11 & 12 July 2006 (Program 26)

408 By Tuesday 11 July 2006 the plaintiff was back at the Casino, having flown in on the Crown jet at 3.30pm.[829] This time he used a $500,000 cheque cashing facility granted by Crown.[830] Once more he played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[831] The Crown turnover records suggest that, on this trip, the hand limit was reduced to $150,000. No evidence was given by any witness about the circumstances leading to this change. Those turnover records show the plaintiff started playing at 6.45pm, continued until 6.57pm and lost $145,000.[832] He then played from 6.53pm to 7.25pm and won $196,050.[833] After a break he resumed play at 9.35pm, continued until 10.56pm, and won another $548,740.[834] He then placed a single $50,000 bet at 10.57pm which he lost.[835] This was followed by another break and then two sessions: one at 12.04am to 12.26am during which he won $127,935;[836] and the other from 12.29am to 1.25am, when he won a further $1,050,740.[837] At 1.18am he deposited $1,650,000 into his Crown account.[838]

409 On Wednesday 12 July 2006, the plaintiff resumed play at 9.33am. He gambled until 10.08am and won another $50,600.[839] He placed a single $146,400 bet between 10.04am and 10.19am. But this was lost.[840] The turnover records show the plaintiff playing from 9.49am to 12.00 noon and winning $2,084,250.[841] He then collected commission of $179,274 which, together with cash of $726 and $3.5 in chips, he deposited into his Crown account at 12.07pm. He withdrew $30,000 cash and took a Crown cheque for $3.65m.[842] He organised for that sum ($3.65m) to be telegraphically transferred on 13 July 2006.[843]

410 In my opinion the pattern of play demonstrated by the plaintiff during this trip is reflective of someone exercising control: the plaintiff appeared to pace himself, taking breaks and stopping when he was well ahead. It may be that the Philippines break contributed to this. Certainly, following the Philippines excursion, Mr Kakavas won $3.65m using a $500,000 credit facility.

Visit to Crown Casino 19 July 2006 (Program 27)

411 The plaintiff's next encounter with baccarat in Melbourne occurred on Wednesday 19 July 2006. He arrived on the Crown jet.[844] At 7.17pm he deposited $140,000 in cash, together with a $250,000 Commonwealth Bank bank cheque payable to Southbank Investments Pty Ltd. At the same time, he drew a $390,000 chip purchase voucher.[845] He also used a $500,000 cheque cashing facility.[846] He played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[847] Again, the reduced hand limit of $150,000 seems to have applied. The Crown turnover records show him playing from 7.44pm to 8.29pm and losing $832,150.[848] Three bets were also placed between 7.30pm and 8.30pm causing a loss of $100,000.[849]

412 On Thursday 20 July 2006, at 9.47am, the plaintiff received - in cash - his commission of $29,239.[850]

Visit to Crown Casino 5 August 2006 (Program 28)

413 The plaintiff's next involvement with the Casino occurred on Saturday 5 August 2006. He does not appear to have used the Crown jet to get there. On this occasion, he called upon a $500,000 cheque cashing facility.[851] He drew two chip purchase vouchers, one for $100,000 and the other for $400,000.[852] The Crown turnover records show that he played under a standard player agreement, rather than under his usual premium player agreement; but he did so on the regular Commission Premium 2 footing. Between 6.41pm and 6.56pm, he placed two $150,000 bets. Both proved successful.[853] He then stopped. A Crown counter cheque redemption voucher shows that the two counter cheques (for $100,000 and $400,000 respectively) were redeemed at 6.54pm. The voucher contains an annotation which reads: "Patron not available to sign".[854] Crown's Program Player History Report shows a zero in the "actual Win" column for that transaction.[855]

Visit to Crown Casino 11 August 2006 (Program 29)

414 The plaintiff and baccarat next came together at Crown on Friday 11 August 2006. He does not appear to have used the corporate jet. He deposited a Commonwealth Bank bank cheque for $500,000 payable to Southbank Investments Pty Ltd together with using a $1m cheque cashing facility.[856] He played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[857] I note that the Crown turnover records, appearing under tab 29 in the documents tendered by the defendants, relate to the visit on 11 & 12 July 2006. No documents appear to have been included for the 11 August visit.

415 After losing his front money and the $1m cheque cashing facility, the plaintiff signed a counter cheque to Crown for $1m. This cheque was subsequently dishonoured and now forms the basis for Crown's counterclaim.

416 At 3.42am on 12 August 2006, the plaintiff received commission of $100,000. It was in the form of a chip purchase voucher.[858] He received further commission (this time of $200,000) at 3.49am,[859] and again - in the sum of $190,000 - at 4.11am.[860] On each occasion it came in the form of chip purchase vouchers. A further sum of $74,906 in commission was placed in a safekeeping account at 4.29pm, together with a note "patron left without settling".[861]

Visit to Crown Casino 17 August 2006 (Program 30)

417 The plaintiff's final gambling visit to the Casino occurred on Thursday 17 August 2006. He did not use the Crown jet.[862] Mr Williams gave evidence that when the plaintiff arrived he went up to his hotel room with him. They exchanged small talk on the way, during which Mr Williams, having noted that the plaintiff for the first time seemed "downbeat", asked how he was. When they arrived at the plaintiff's room, Mr Kakavas mentioned to Mr Williams that he had lost a lot of money lately and had been having a bad run. Mr Williams asked him whether there were any losses in addition to the losses that he was aware of at Crown. In response, the plaintiff told him he had lost between $20 and $30 million. Mr Williams said he was surprised at this, and suggested that the plaintiff "have a rest for a while." Mr Kakavas replied that it is natural to feel down after losing that amount of money and that he would be fine. He commented that "even if Kerry Packer had lost that sort of money, he would be feeling upset about that too." According to John Williams, the plaintiff said that he had already made arrangements for the 17 August visit, and so he would "see how he goes after this trip and talk to me later about it." Mr Williams said this was the first time that Mr Kakavas had raised his losses with him, or had expressed any concern or anxiety.[863]

418 The plaintiff agreed that he was met by Mr Williams on his arrival on 17 August, and that they walked to his room together. However, he denied that at that time he expressed some feeling of deflation. He likewise denied saying that he had lost $30 million over the past four months. Nor did he say "No, I will just give it one more go, I'm fine, it's not that bad", after Mr Williams suggested he stop gambling.[864] He denied that the first time he expressed any concerns about his gambling losses to anyone from Crown was on 17 August 2006,[865] although in his evidence in chief he agreed that he did not until that day discuss with any Crown officers the losses he had sustained.[866] He said that any conversation with Mr Williams occurred on either the evening of 17 August or during the next day, after he had finished gambling. Moreover, the discussion was limited to a problem with payment of the $1m credit facility granted to him on the previous trip. According to Mr Kakavas, Mr Williams told him that:

because I had taken a credit facility of $1m approximately one week earlier and it hadn't been repaid within the prescribed five or seven days, he was concerned that I had no money left and he said to me that he didn't want me to continue to gamble when it had become obvious to him that I couldn't pay back the ... cheque cashing facility ... Mr Williams told me to ... "have a rest" ... Mr Williams also said to me that I should continue to concentrate my energies on real estate so I can build up my finances again. Mr Williams said to me that the $1 million was, and I quote "no big deal for Crown" and he said to me not to feel hurried or pressured to pay back the $1 million and I thanked him for that. [867]

419 The plaintiff said he also discussed his difficulty in paying the $1m outstanding cheque cashing facility with Mr Aldridge after he had sustained his losses.[868] Mr Aldridge said that he could not recall this conversation.[869]

420 If Mr Williams did, on the plaintiff's arrival, suggest that he "have a rest for a while", Mr Kakavas did not take up the suggestion. Rather, at 12.44pm he deposited not only a Commonwealth Bank bank cheque in the sum of $298,000, payable to Southbank Investments Pty Ltd, but also the sum of $76,106.[870] He later (at 1.02pm) deposited a further Commonwealth Bank bank cheque for $2m. This too was payable to Southbank Investments Pty Ltd.[871] Part of this money comprised the proceeds of a loan from Equititrust, and part was provided by Mr McCracken of Crackers Corporation.[872] He then drew a chip purchase voucher for $374,000 and cash of $106.[873] He played under a Premium Player Program Agreement (Interstate) on a Commission Premium 2 footing.[874] On this occasion the maximum bet level seems to have been increased to $200,000 per hand.

421 The Crown turnover records show that the plaintiff played from 12.53pm until 1.03pm. He lost $374,000.[875] He then played again from 1.02pm to 1.35pm and lost the $2m he had just deposited.[876] He received commission of $51,575, which he initially took as cash at 1.36pm[877] but subsequently (at 1.39pm)[878] used to purchase a $50,000 chip purchase voucher, all but $1,600 of the value of which he lost in the two minutes between 1.39pm and 1.41pm.[879] He received commission of $2,195 after this bout of play, which he took as cash.[880]

422 At the end of this trip the plaintiff also received a $50,000 cash payment. A Crown complimentary voucher was raised at 2.44pm on 17 August 2006 for $50,000 "Lucky money". The pay out slip bears an annotation "Patron provided funds by HA". [881] Mr Aldridge denied that this payment was made in order to mollify the plaintiff after losing all his money at Crown. He maintained that the reason for the payment was "because Mr Kakavas had been a long-standing customer or a good customer in the previous 12 months or close to 12 months and it was a gesture that we made based on his losses on that trip, I expect."[882]

The Plaintiff's Gambling Activities After 17 August 2006

423 Despite these setbacks, the plaintiff continued after 17 August 2006 repeatedly to press Crown to allow him to gamble at the Casino.[883] He said that on at least three occasions he asked to deposit front moneys in his Crown account but Crown declined.[884] He further agreed that during these contacts with Crown officers he never expressed any feelings of displeasure towards Crown. Indeed, he conceded that he thanked them for their attitude towards him, including the suggestion that he take a rest.[885]

424 The plaintiff's evidence was that, a few days after he finished gambling at Crown on 17 August 2006, he sent approximately US$1.5m to the Wynn Casino in Las Vegas. That casino then gave him credit for another $1.5 million. He travelled to Las Vegas with his fiancée and two friends to gamble. He lost the entire amount.[886]

425 The plaintiff also deposed that he gambled at both the Venetian Casino and the Bellagio Casino in Las Vegas in August 2006, where he was provided with credit of $1.5m and $1m respectively. He lost it all. On 8 November 2006, just two days before he got married, he gambled at the Sky City Auckland casino in New Zealand and lost a further AUD$2m. Then, on his honeymoon, between 24 and 27 November 2006, he gambled at the Atlantis Paradise Casino in the Bahamas, where he was given approximately US$1m as a credit facility. This too disappeared. While still on his honeymoon, he returned from the Bahamas to Las Vegas, where he played at the Paris Casino, using a credit facility of either US$400,000 or US$1 million, which he also lost. According to the plaintiff, he has not gambled since.[887]

426 One of equity's enduring concerns has been the protection of the vulnerable. But that protection must be both principled and consistent. Neither principle nor consistency are served without a clear conception of both; and that in turn requires a careful identification of what is encompassed by the vulnerability which equity is prepared to protect. It requires, as well, an equally careful assessment of the proper measure of protection which in any given set of circumstances is appropriate. So, for example, while equity will sometimes intervene in circumstances where there has been an inequality of bargaining power, sometimes it will not. Again, it may on occasion be proper for equity to protect people from themselves. Ordinarily, however, each must accept responsibility for his or her action or inaction. The seeds of tyranny are to be found in the footsteps of those who profess to know more about what is good for the subjects of their attention than do the subjects themselves.

427 It is as well in this case to keep that truth in mind. When, with hindsight, a chosen path is seen with searing clarity as leading to trouble, the strong temptation is to caste blame on one who might have barred the way but who, rather, allowed the person who made the choice to act upon it. Harry Kakavas had chosen to gamble. The only remaining choice was where. Even so, the primary choice had been influenced by his addiction to the gaming tables, and a casino which took unconscientious advantage of this might properly be compelled by equity to return to him the fruits of that unconscientious conduct. But, if equity is not to make the mistake of requiring casinos to determine what they conceive to be best for their patrons, and then obliging those casinos to force that decision upon those patrons in the face of the different choice they have made for themselves, then there must be limits on equity's capacity to intervene. Equity must never become the tool of tyranny. And the law must be very careful before it requires one person to nullify a decision freely made by another person about what that other person chooses lawfully to do.

428 In Commercial Bank of Australia Ltd v Amadio Deane J said:[888]

The jurisdiction of courts of equity to relieve against unconscionable dealing developed from the jurisdiction which the Court of Chancery assumed, at a very early period, to set aside transactions in which expectant heirs have dealt with their expectations without being adequately protected against the pressure put upon them by their poverty. ... The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or 'unconscientious' that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable.

429 It is clear that not every form of vulnerability or disadvantage will find shelter under equity's umbrella. As Mason J said in Amadio[889]:

I qualify the word 'disadvantage' by the adjective 'special' in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.

430 On the other hand, the range of disabilities which may, according to the circumstances, become "special" are beyond easy classification. Fullagar J made this point in Blomley v Ryan[890] when he stated that:

The circumstances adversely affecting the party, which may induce a court of equity either to refuse its aid or set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristics seems to be that they have the effect of placing one party at a serious disadvantage vis-a-vis the other.

431 Mason J appears in the passage quoted above to favour the view that the relevant disadvantage is best discerned by asking whether the vulnerable party has a diminished ability to make a judgment about his or her own best interests. The next question is whether the other party knows or ought to know of this, and of its effect on the "innocent" party. Kitto J adopted much the same approach in Blomley v Ryan[891], when he referred to a special disadvantage affecting someone's ability "to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands."

432 I respectfully doubt whether an examination of disadvantage is best approached by seeking to ascertain whether there exists in the vulnerable party a diminished ability to make a judgment about his or her own best interests, or about how best to conserve them. It is generally difficult, and often inappropriately paternalistic, for an outsider - and this includes a court - to make a judgment about what is in another's best interests. Gambling is a case in point. Some would say that gambling is never in the best interests of anybody except those who set the odds. Others would argue that an occasional flutter on a losing bet may indeed be in one's best interests if, by purchasing a moment or two of hope, it enlivens an otherwise dull existence - and even if, on one view, hope is a luxury which the person laying the bet cannot afford to pursue by the expenditure of money.

433 There are many gradations of this argument. It seems to me that it may in any event be very unfair to require one party to a transaction to make an assessment of what is in the other party's best interests on pain, if the assessment is adjudged to be incorrect, of having to disgorge any advantage flowing to the first party from any resultant transaction.

434 I prefer the approach of Deane J in the passage quoted above from Amadio. Moreover, his Honour's position seems to accord with that of Fullagar J in Blomley v Ryan. It involves an assessment not of what is in someone else's best interests, but rather of whether reasonable equality exists between the parties. If it does not, then the stronger party must not take unconscientious advantage of its disproportionate strength. The test is essentially objective, as opposed to the overly subjective test of whether the other party is able to make a judgment about (to adopt the phraseology of Mason J in Amadio) "his own best interests".

435 This case is, I think, illustrative of the points made above. Ascertaining whether Mr Kakavas was able to make a judgment about his own best interests is much more problematic than asking whether there was an absence of any reasonable degree of equality between Mr Kakavas and Crown. It was not in Mr Kakavas' best interests to gamble until he had lost not merely his own fortune but a further $20.5m. On the other hand, no-one would listen, and no cause of action would have seen him succeed as a plaintiff, had he called a halt to his gambling when he was ahead - as he was on several occasions during his patronage of the Casino. Then, his "best" interests and his gambling ran in tandem. When and on what information is Crown to make the judgment that it is not in the best interests of a patron to commence to gamble or, having commenced, to stop? What must Crown know of the financial, family, employment and other circumstances of that patron? And what is Crown to do if it forms the opinion that a patron is a problem gambler?

436 For the reasons given in an interlocutory judgment delivered in this case on 13 December 2007,[892] I respectfully agree with the statement of Spigelman CJ in Reynolds v Katoomba RSL Services Club Ltd[893] that, save in an extraordinary case (assuming there are any), economic loss occasioned by gambling should not be accepted as a loss for which the law permits recovery. In the absence of a relevant legislative provision, there is no general duty upon a casino to protect gamblers from themselves. On the other hand, if Crown knows that a person is a problem gambler who is anxious to quit, or has quit and is anxious to avoid temptation, and for some reason is unable to take advantage of some such mechanism as the facility to self-exclude, then Crown might act unconscientiously if it deliberately and successfully entices that person to persist with, or resume, his or her gambling habit. The issue in this case is whether that is what happened in the Crown/Kakavas relationship.

437 The limits of individual responsibility are more a question for the theologians and politicians than for judges. Nevertheless, the principles of law and equity should march in tune with general community conceptions of those limits. That means, I think, that the law must require that, in the general case, men and women of full age and capacity cannot shift to an external party responsibility for what they do. Speaking generally, we should not be compelled to be our siblings' keepers. Accordingly, the law must be very careful before it imposes on third parties a requirement to protect someone else from the consequences of the decisions of that other person.

438 The final written submissions of the plaintiff challenge this proposition. Taken to their logical conclusion, passive acceptance by the Casino of a gambling transaction involving a person reasonably suspected to be a problem gambler (even more so, of course, if the problem had become pathological) is enough to have Crown repay all losses incurred by that patron - at least if Crown has in any way induced that person to take advantage of its facilities. The corollary is that, if Crown is to avoid that fate, it would have actively to stand between that patron and those facilities - in other words, do for the patron what the patron will not or cannot do for himself or herself. Given the propensity of pathological gamblers to lie and deceive, a policy of total exclusion (one strike and you are out) would seem to be necessary, no matter how vigorously the patron might protest. Indeed, even if the patron proclaims his wish to return, and declares that he has freed himself from gambling problems, and announces his willingness to take advantage of the avenue of self-exclusion, the casino will have to tell him, in effect, that it does not or cannot believe him, and that it will not allow him freedom of choice. But to ask that of any casino is to require the casino to assume the mantle of God.

439 The true question, it seems to me, is that which, as I understand his Honour's judgment in Amadio, is favoured by Deane J: namely, whether Mr Kakavas and Crown met on equal bargaining terms. In my opinion, they did, despite his gambling problems. I now turn to examine that proposition in a little more detail.

Relevance of Expert Evidence on Whether the Plaintiff is Under a Disability

440 As I hope I have made clear by what is written above, equality in bargaining power may be possible even if the plaintiff is under a disability. In my opinion it is clear that Mr Kakavas was a problem, and indeed very possibly a pathological, gambler. His judgment, as could be seen when set against the judgment of the generality of members of the community, was overly influenced by a desire to gamble. Even making allowances for the truth that we all have different priorities, and that the objects of one person's desire are the subjects of his neighbour's derision, nevertheless the extent to which the urge to gamble influenced the thinking and the actions of Harry Kakavas far exceeded its influence on the vast majority of his fellows.

441 In certain circumstances, a casino might act unconscientiously in its dealings with such a person. Crown did not in this case. This was in part because it did not at any relevant time categorise Mr Kakavas as being either at a special disadvantage or being in an unequal bargaining position - and it therefore never categorised him as being exploitable. Never having categorised him in that way, Crown never dealt with him in that way. Crown accepted what Mr Kakavas wanted Crown to believe: that, by November 2004, he had become a highly respected Gold Coast businessman whose liking for the gaming tables had caused problems in the past, but who had since conquered those problems to the extent that he had been able to amass wealth from his business activity. He was, when Crown became interested in his return as a patron, prepared to fly halfway round the world to indulge in his favoured recreational pursuit. Crown therefore transacted business with him on the footing that they were at arms length. He was a keen but not over-anxious punter; and while Crown was anxious to secure his patronage, it was not prepared to do so on any other than a basis which in the world of high rollers would be, and would be seen as being, commercial. Both parties had a credible bargaining tool. Crown had the facilities, in the form of the Casino. Mr Kakavas had his valuable custom. Each was aware that the other was thus armed with bargaining power. Crown could always prevent Mr Kakavas' return; while Mr Kakavas could always withdraw his patronage.

442 This being the case, the evidence concerning Mr Kakavas' standing as a pathological - or, at least, problem - gambler is not particularly relevant. Much time was, however, given to it at the trial. I shall therefore make some observations about it.

443 It is generally accepted by psychiatrists and psychologists of repute that there exists a condition known as pathological gambling. It is described in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, now in its fourth (revised) edition and referred to as DSM IV(2000). The International Classification of Diseases (ICD-10, 2000) similarly recognises pathological gambling as a psychiatric disorder, while acknowledging that some people gamble to excess in the absence of any psychopathology. Indeed, there is continuing debate among the experts about whether pathological gambling is a psychiatric condition or a behavioural disorder. There remains no doubt, and I accept, that some people suffer from a persistent and recurrent maladaptive pattern of gambling behaviour characterised by their failure to control the urge to gamble, leading to significant deleterious psychosocial consequences in the domains of personal, familial, financial, vocational and legal functioning.

444 I find that Harry Kakavas was one such person. Expert witnesses have been called, and have said so. I accept their evidence. But in late 2004 and early 2005, he did not present as such. And on the evidence before me, his level of functioning in each of the personal, familial, financial, vocational and legal levels was at that time unremarkable. He was in a steady relationship with the woman who was to become, and remains, his wife. He was on excellent terms with his parents, and when in September 2005 his father fell gravely ill with heart disease, Mr Kakavas devoted much of his time in caring for the patient. His finances were, at least to outward appearances and perhaps in fact, in sound, perhaps excellent, shape. His business appeared to be flourishing. And he was respected generally on the Gold Coast, then his home territory, as a successful and law-abiding citizen.

445 One of the problems of diagnosis in this area is that persistent gamblers who nevertheless have great wealth - the high rollers - can exhibit many of the criteria of problem or pathological gambler. The signs are often ambiguous. Yet misdiagnosis might cause very serious and unnecessary offence.

446 I turn now to the submissions on the state of Crown's knowledge of Mr Kakavas' disability. The plaintiff contends that Crown's awareness of his position can be demonstrated in four areas: first, a damaging admission made by Mr Aldridge; second, Crown's knowledge of his background; next, the circumstances pertaining to the lifting of the WOL; and finally, the plaintiff's behaviour while gambling at the Casino in 2005 and 2006. I will consider each in turn.

447 According to the plaintiff, Mr Aldridge in or about December 2006 admitted - during a conversation which was taped by Mr Kakavas - that Crown knew of his "impulsive gambling disorder."[894] Mr Aldridge is recorded as saying, while discussing "incentives" proffered by Crown to Mr Kakavas, that Crown did not "really think we needed to [provide you with incentives] ... [b]ecause you would ... impulsively come down."[895]

448 During his cross examination the plaintiff explained the circumstances giving rise to this recording. He agreed that he instigated the meeting. The two met just before Christmas 2006 at the Crystal Club. Before the meeting, the plaintiff activated a recording device which he concealed in his pocket. He did not tell Mr Aldridge that the conversation was being recorded, and sought no permission to do so. Although the plaintiff told Mr Aldridge that the purpose of the meeting was to discuss Mr Kakavas' tax obligations in relation to cash payments received from Crown, in reality the plaintiff's principal concern was to obtain a concession from Mr Aldridge that Crown had provided the plaintiff with cash on the plane. He agreed that when the conversation began he gave Mr Aldridge a present of a bottle of either wine or spirits, with another bottle to pass on to Mr Williams. He also thanked Mr Aldridge for the way in which Crown had treated him. He admitted that he:

... didn't want to alarm him that I was going to take legal action so I thought that was the most appropriate course to take. ... I was falsely extending my thanks to Mr Aldridge and Crown, that is correct, because I knew that if I had gone in there like a bull out of a gate they wouldn't have sang like birds and told me exactly what was really going on. So, you know, you catch more bees with honey, I think.[896]

449 Crown submits that this episode is yet another example of the plaintiff's "continued dishonesty".[897] In addition, it points out that, only a month before, Mr Aldridge had travelled to Queensland to attend the plaintiff's wedding. It is also significant that no suggestion was made during the cross examination of Mr Aldridge that what he said when recorded amounted to an admission that Crown knew that the plaintiff had an impulsive gambling disorder.

450 It is difficult to accept that, in the short recorded passage in question, Mr Aldridge by implication admitted to Crown's knowledge of Mr Kakavas as a man with a gambling addiction. Crown knew that he liked to gamble, and expected that he would continue to do so. It understood that he had the means. Crown also knew that, once the sour taste of the 1998 withdrawal of licence had been expunged, the plaintiff was likely to set his sights on Melbourne rather than Las Vegas. Location was a key. Other things being more or less equal, Melbourne in this respect held the trump card. I think that Mr Aldridge had no more in mind than considerations of that sort.

451 The plaintiff submits that Crown had relevant and sufficient knowledge of his background and proclivities. Through Messrs Horman, Aldridge, Craigie and Williams, Crown knew - and certainly ought to have known - that Mr Kakavas was a pathological gambler. That knowledge is evidenced by the statement prepared by Mr Horman for the plaintiff's County Court plea; by Crown being once an unsatisfied creditor; by the Esanda fraud; by his subsequent referral to the Crown Assistance Program and the treatment he thereafter received; and by the various self exclusion orders taken out by him (including from Crown). I will deal with each in turn.

452 The plaintiff asserts that the statement prepared by Mr Horman for the County Court plea "constitutes an unequivocal and contemporaneous admission of his belief and knowledge that Mr Kakavas was suffering from a serious gambling problem as at 1998."[898] Mr Horman's attempt to distance himself from those admissions was, the submission continues, false; and it reflects on his lack of credibility. Not only did Mr Horman believe the plaintiff to have a problem, but, according to his own statement prepared for the County Court plea, it was he who suggested to Mr Kakavas and his solicitors that an application for self exclusion be made. Counsel for the plaintiff pose the question: if Mr Horman did not think the plaintiff had a serious gambling problem in 1998, "what was he doing facilitating the fabrication by putting forward such evidence to the County Court?"[899] They also point to what they appear to characterise as a Horman concession, made during his cross examination at this trial. He then said that he thought Mr Kakavas had "a propensity to gamble" and that he "may have had a gambling problem". I add that, during that exchange, Mr Horman continued: "I'm not in a position to say to what extent he had a gambling problem."[900]

453 In his oral closing submissions Mr Young on behalf of Crown was careful to point out that Mr Horman, in his written statement to the County Court, referred to Mr Kakavas' "inclination for gambling". He did not in that statement suggest that the plaintiff had told him that he (the plaintiff) suffered from an irresistible urge to gamble, or that an addiction to gambling had caused him to commit the frauds with which he had been charged. Indeed, the statement does not suggest any link between those offences and a problem with gambling; the topic is not there dealt with, except by inference at the point at which Mr Horman states that he "suggested to both [Mr Kakavas] and his solicitors that he should consider making application to have himself self-excluded from the Casino" and "made arrangements for him to receive counselling from Dr Jack Darmody".

454 I accept the plaintiff's submission that Mr Horman had concerns about the plaintiff's vulnerability to his gambling urge. I do not accept, however, that Mr Horman came to any firm conclusion about the seriousness of that problem, or categorised Mr Kakavas as a pathological gambler. I do not think that Mr Horman sought to deceive the sentencing judge by facilitating, in his statement, a fabrication being put forward by Mr Kakavas to the effect that his addiction was responsible for his fraud. I accept that Mr Horman's concerns for the plaintiff centred as much upon his general "mental well-being" (to adopt the expression used by Mr Horman in his statement to the Court) as it did upon his problem gambling. In my opinion, Mr Horman believed that there might well be a link between Mr Kakavas' "inclination for gambling", the mental fragility which he displayed at relevant times, and his criminality. I therefore do not accept the proposition, put in the plaintiff's final written submissions, that "Mr Horman's evidence to the County Court constitutes an unequivocal and contemporaneous admission of his belief and knowledge that Mr Kakavas was suffering from a serious gambling problem as at 1998." The truth is more nuanced than that.

455 It is further submitted on behalf of the plaintiff that Mr Horman's belief that Mr Kakavas did have a gambling problem in 1998 is corroborated by the terms of the letter in which Mr Horman told the plaintiff that there were "a number" of reasons for the withdrawal of his licence to enter Crown premises. These other reasons, I am asked to infer, included Mr Horman's belief that the plaintiff had a gambling problem.[901] That inference is strengthened by the fact, as the plaintiff's submission would have it, that Mr Horman did not accept the conclusions and recommendations of Mr Watson-Munro's report of 3 June 1998. Among these were the proposition that Mr Kakavas had "now ... both the insight and requisite behavioural skills to maintain his involvement at the Casino at no more than that of the recreational gambler." Further, it is submitted, the replacement of the self exclusion order with the WOL was not done because Crown thought that the plaintiff had recovered from his gambling problem; rather, it was "because a withdrawal of licence was less vulnerable to legal attack than a self exclusion order."[902] It is said that Crown "was sensitive to Mr Kakavas' threat to take legal action against it if it did not revoke his self exclusion order" and sought legal advice from senior counsel "on the issue about issuing a withdrawal of licence instead". This submission relies on the reference, in an email sent on 11 December 1998 to Mr Horman by his personal assistant, Pam Waymouth, to a "QC's advice obtained in relation to Crown's common law right" to revoke the plaintiff's licence to enter its premises.[903] The advice is not in evidence.

456 Assuming for the sake of the argument that the advice was given, it would have to be read against the circumstance that, by June 1998, the plaintiff in his application to revoke his self-exclusion order had told Crown that he would let it know immediately should he have any concern about his decision to seek revocation. Crown also had the powerful statements made on behalf of the application by the plaintiff's treating psychologist, Timothy Watson-Munro. These, however, constitute a two-edged sword. If Crown wanted Mr Kakavas out of the Casino they stood in the way of the maintenance of the self-exclusion order (and therefore pointed to the withdrawal of licence as the appropriate means of keeping him out). On the other hand, they constitute barriers to acceptance of the plaintiff's claim that the defendants knew that, despite these assurances to the contrary, Mr Kakavas still had a problem which should prevent his return.

457 It is significant, submits the plaintiff, that his 2004 application for restoration of his licence to enter and remain in the Casino was discussed by Crown's Self Exclusion Revocation Committee, and not by its Withdrawal of Licence Committee. Nor was there any evidence that the plaintiff had misbehaved while gambling at Crown, or indeed at any other casino. Mr Horman's evidence that his concerns during the committee discussions related to behavioural issues other than those of problem gambling was, it is submitted, "not credible and should be rejected."[904]

458 In my opinion, Mr Horman's concern about Mr Kakavas being in the Casino was based upon the potential for trouble between the plaintiff and Mr Jimmy Sui. In this context, I think it is significant that Mr Horman kept the Casino Crime Unit informed about the plaintiff. I also find that the general tenor of Mr Horman's emails and memoranda was that Mr Kakavas was a problem, not because of his gambling, but because of his perceived criminal connections and because (as Mr Horman thought) he was on the periphery of, if not actively involved in, some potentially dubious activity. The fact of Mr Kakavas' exclusion from the Star City Casino would have given weight to this conclusion, because the police are more likely to act upon behavioural issues of that kind rather than concerns about a patron's problem gambling.

459 It is submitted on behalf of the plaintiff that Mr Kakavas' problems with gambling were apparent as early as November 1994 when he found himself unable to pay a debt of $47,500 owed to Crown. Mr Aldridge accepted during cross examination that these financial difficulties arose from the plaintiff's gambling. Moreover, the plaintiff gave evidence that he discussed his debt position in early 1995 with Mr Horman. According to the plaintiff, Mr Horman's denial on this point should be rejected; it is implausible that Mr Horman "would not have undertaken rudimentary checks concerning Mr Kakavas' gambling history at Crown before meeting with him for the first time." Nor is such a disavowal consistent with the statement which Mr Horman prepared for the County Court plea, in which he records his knowledge of the plaintiff's inclination for gambling.

460 Crown submits that the plaintiff's evidence that he told Mr Aldridge he had a gambling problem and found it "very, very difficult to resist the temptation of the gambling tables" should be rejected as a recent invention: the conversation was not pleaded, and arose for the first time while Mr Kakavas was giving his evidence. Mr Aldridge denied that Mr Kakavas said he got himself into trouble because of a gambling addiction; he eventually learned of the plaintiff's prosecution for the Esanda fraud at some point before 1998, but he did not know that the plaintiff used the proceeds of that crime to gamble. According to the defendants, Mr Aldridge's evidence should be preferred.[905] I agree.

461 The plaintiff submits that Crown was aware of his involvement in the Esanda fraud and that these offences related to his gambling problems. According to him, he gave Mr Horman a full account of the Esanda "situation". Mr Horman's denial at trial of his knowledge of the connection between the fraud charges and the plaintiff's gambling problem should therefore be rejected as implausible. What is more, it is inconsistent not only with the references, in Mr Horman's statement to the County Court at the time of Mr Kakavas' plea, to the latter's gambling problem, but also with the suggestion that the plaintiff take out a self exclusion order and attend the Crown Assistance Program.

462 The plaintiff also says that Mr Aldridge was aware of the connection between the Esanda fraud and his gambling. He again points, first, to the conversation he said he had with Mr Aldridge in late 1994, in which he told the latter about his involvement in the fraud, and secondly to the reference in Mr Horman's 5 November 2000 memorandum (which Mr Aldridge received) to a defence of gambling addiction raised in relation to a major fraud where "his part of the proceeds of crime were spent in gambling at several interstate casinos."[906] Mr Craigie also received this memorandum and so was aware of the Esanda fraud connection, as well as receiving information in Mr Horman's 22 December 2000 email. Mr Williams was told about the Esanda fraud by Mr Horman.

463 Given this evidence, there cannot be any doubt that Crown and its officers knew that Harry Kakavas' gambling had got him into real trouble. It is true that Mr Horman was sceptical about the whole gambling addiction defence, and it may be that this coloured how the other Crown officers viewed this information; but on any view there was enough before Mr Kakavas was released from prison in 1968 to make them aware there was an issue. The fact of it being used in a plea of mitigation is, of course, not necessarily inconsistent with it also being a genuine problem. The real question is whether this knowledge was subsequently overtaken by events - by the 1998 Watson-Munro report, in particular, and thereafter by Mr Kakavas presentation of himself. By 2004 he was telling the world, with the message being directed forcefully at Crown, that the past was the past, and if by chance it were to reappear in the present, he knew how to put it back in its place - which was precisely what he would do. In my opinion, the picture as it was in 1998 had by 2004 been repainted, and rehung, by the plaintiff himself.

464 The plaintiff submits, and I agree, that when Mr Horman referred him to Dr Darmody for counselling, he knew that Dr Darmody specialised in the treatment of problem gamblers. He further asserts that Mr Horman also knew that Dr Darmody had diagnosed the plaintiff as a compulsive gambler who required professional therapy and who needed to abstain entirely from gambling if such treatment were to be effective. This, as the plaintiff would have it, is because the plaintiff confided this information to Mr Horman and indeed showed him copies of Dr Darmody's reports

465 Mr Horman denies this. It is nevertheless submitted on behalf of the plaintiff that this denial should be rejected. There are several reasons why. First, it is inconsistent with Mr Horman's reference to receiving an "update re Dr J Darmody" in his notes of a conversation with the plaintiff on 14 August 1996, only a month or so after Dr Darmody prepared his reports. Moreover, it was clear, it is submitted, that Mr Horman was keeping abreast of the plaintiff's treatment; which was only to be expected, given Mr Horman's responsibilities in relation to the Crown Assistance Program and his role in referring the plaintiff to Dr Darmody. In cross examination Mr Horman could not deny speaking to Dr Darmody about the plaintiff. And finally, according to the plaintiff's version of things, Mr Horman's evidence about Dr Darmody and his part in the maintenance of Mr Kakavas' well being was in general "unreliable and incredible".[907]

466 The plaintiff's submissions also refer to Mr Aldridge's knowledge of the plaintiff's psychiatric and psychological treatment - both because Mr Homan told him, and because it was mentioned in Mr Horman's 8 June 1998 memorandum.

467 The defendants in response point out in their submissions that the conversation in which Mr Horman is said to have referred the plaintiff to Dr Darmody has not been pleaded or particularised.[908] That is true; but it is not in the present context as important as my conclusion that Mr Horman did indeed refer the plaintiff to Dr Darmody, even if he did not go so far as to recommend that the plaintiff seek treatment. I accept that Mr Horman spoke accurately when he said in his report to the County Court that the reference to Dr Darmody came from him. I also accept that Mr Kakavas provided Mr Horman with sufficient information about the treatment he received from Dr Darmody, and the diagnoses provided by that psychologist, to make Mr Horman aware that the plaintiff was receiving ongoing treatment for gambling issues.

468 Mr Horman's involvement in the Crown Assistance Program does not, however, necessarily assist the plaintiff throughout. While Mr Horman acknowledged, quite rightly, that as a lay person he was not qualified to clinically assess patrons, he was sufficiently familiar with the literature on problem gambling, including issues about whether it is a permanent condition or one susceptible of variation and treatment, to be aware that the fact that someone receives treatment for problem gambling at one point in their life may not necessarily be indicative of their situation at any other point.

469 The plaintiff submits that an application for self-exclusion "is one of the strongest indicators of the existence of a gambling addiction".[909] The expert evidence, he suggests, is to that effect. It follows that repeated applications are even more strikingly convincing. This is pertinent here, because Crown was aware of the plaintiff's self exclusions not only from its own casino, but also from Jupiters Casino, the Treasury Casino and the Burswood Casino. Thus it is proper, according to the plaintiff, to accept the evidence of Mr Craigie, who told the Court that most self exclusions (including, he assumed, those of the plaintiff) would be motivated by gambling problems.[910]

470 I agree with the general thrust of the plaintiff's argument on this point. Few would self-exclude if they were not concerned that, in the absence of such a step, they would continue to gamble, with deleterious consequences. But there is an obvious exception. Those who wish to attribute their criminal conduct to the grip of the gaming tables have a very powerful reason to self-exclude before being sentenced. The defendants submit that Mr Kakavas' case is an example. He wanted to present to the sentencing judge as a person whose frauds were committed while he was in thrall to the siren-song of the Casino. This would be an empty submission had he not beforehand taken heed of Ulysses' example, and removed, if not the temptation itself, then at least his ability to succumb to it.

471 Mr Horman did not accept that Harry Kakavas was a modern-day Ulysses. In his opinion, the plaintiff's self-exclusion from Crown was no more than a defence ploy, to be used as a mitigating factor in his plea following the Esanda fraud. Or so the defendants submit; and their submission, they contend, is supported by Mr Horman's contemporaneous memoranda dated (respectively) 12 March 1996, 8 June 1998 and 5 November 2000, as well as his email of 22 December 2000. They say that there is no evidence to suggest that either Mr Horman, or any other Crown officer, knew or believed that this self exclusion "was to address genuine gambling problems."[911] While Mr Craigie acknowledged that most self exclusions are inspired by gambling problems, he also thought (according to his evidence) that, in the plaintiff's case, such problems were in the past. As Crown saw it, the central question in late 2004 was not whether gambling was a problem, but whether there remained any of the behavioural issues which had led to the WOL. In my opinion, Crown was justified in taking this position. Ms Brooks' report was in itself sufficient justification for it, so long as the question of Mr Kakavas' previous difficulties with gambling was not entirely disregarded.

472 I do not believe that, in seeking to self-exclude in November 1995, the plaintiff had nothing more in mind than ammunition for his plea. He did have a gambling problem. I accept his evidence that, in 1993, he had given up a good job to become a professional gambler. I likewise accept his evidence that he had obtained funds from his parents and, unbeknown to them, squandered them by gambling. I find, too, that the Esanda fraud was also, at least in part, a consequence of an inordinate fascination with the gaming tables. By November 1994, the plaintiff had been charged with that fraud. A year later, in November 1995, he had been a patient of Mr Watson-Munro for over a month. The initial consultation may have had as much to do with Mr Kakavas' anxiety about a possible prison sentence as about a specific addiction to gambling, but I am satisfied that Mr Watson-Munro, and his patient as well, quickly came to the belief that gambling lay at the root of the problems the plaintiff then faced.

473 This is not to say, however, that Crown shared that belief. I find that Mr Horman was genuinely sceptical about the notion that the plaintiff was addicted to gambling, or even had a problem severe enough to explain the Esanda fraud. I also find that this belief reflected Crown's state of mind. It took the view that Mr Kakavas was not genuinely seeking to address such a problem. The defendants point to the evidence that the plaintiff only applied for the self-exclusion when his matter was listed for imminent hearing in the County Court in 1995, notwithstanding that he blamed his gambling for his offences in his record of interview on 10 November 1994. In the interim, he continued to gamble at Crown. They point to the evidence that Mr Defteros said that the self exclusion was "part of the mitigation strategy". Even after obtaining the self exclusion, the plaintiff continued to gamble elsewhere, although he told his psychologists that he had banned himself, or had asked Mr Horman to arrange his exclusion, from all Australian casinos. The plaintiff then self-excluded from Jupiters Casino only a month before his plea hearing fixed for 23 January 1998. But, as soon as he was released from gaol, Mr Kakavas applied to revoke both the Crown and Jupiters Casino self exclusions. The defendants contend that, against this background, it can be no coincidence that the applications for self exclusion are contemporaneous with the dates fixed for the sentencing hearings. The plaintiff was "anxious to ensure that Judge Wodak had a particular view of him". At the same time, however, he "was not anxious to curtail his gambling activity ... throughout 1995 to 1998."[912] Indeed he was not, despite the fact that his continued involvement with baccarat directly contradicted the line he was running with the judge and his treating specialists.

474 Mr Myers submitted that the first time that Mr Horman expressed any scepticism about the plaintiff's gambling problem was in his 8 June 1998 memorandum. This was prepared after Mr Kakavas had been sentenced, and indeed had served his time in gaol. Contrary to the defendants' submissions, there was no such scepticism expressed in the 12 March 1996 memorandum.[913] I accept that this is so, if one does not take into account the implied scepticism of the pre-sentence report to the County Court. The change in Mr Horman's attitude, Mr Myers submitted, came about because the plaintiff spoke to him about the possibility of a proceeding for breach of duty of care. Mr Kakavas based this approach on litigation brought by a player against an Adelaide casino.

475 I do not agree with the plaintiff's submission. In my opinion, while Mr Horman may initially have accepted that the plaintiff had a problem, it does not follow that he did not later have genuine doubts about its depth and breadth. These doubts, I think, were present before Mr Kakavas went to gaol, and were strengthened by the terms of his application to revoke the self-exclusion order - an application made almost immediately after his release. The talk of suing casinos would, I think, have confirmed Mr Horman in his cynicism.

476 The defendants further point out that the self-exclusion order issued by Crown in 1996 was subsequently revoked by the plaintiff. The fact of that revocation, and the material put to Crown by him in support of it, all show that if Crown did believe he had any gambling problem, it thereafter believed that Mr Kakavas was "perfectly capable of making independent decisions and judgments that conserved his own interests and was not the subject of any special disadvantage."[914] The defendants rely on both the acknowledgements made by Mr Kakavas in the application itself and the opinion expressed by Mr Watson-Munro in his 3 June 1998 report. They also say that there has not been any suggestion that Crown encouraged the plaintiff to apply for the revocation; it was he who instigated it. By signing the form of application, Mr Kakavas acknowledged as much.

477 I do not accept that all Crown's doubts about Mr Kakavas and his difficulty in controlling his gambling were entirely assuaged when, in June 1998, it acceded to his application to revoke his self-exclusion order. But it did not then need to make a final determination of its position. Its doubts were irrelevant, given that by withdrawing the plaintiff's licence to enter Crown premises, he could not gamble there anyway.

478 I accept that Mr Horman, and through him Crown, was aware of the Jupiters Casino exclusion in 2000, and was told by the plaintiff that it was still in place as at July 2002. There is a suggestion, based on the note "Still goes to Star City/Jupiters" in the handwritten notes of the meeting of the Persons of Interest Committee on 29 October 2004,[915] that Mr Horman may not have believed by that time that Mr Kakavas was still subject to exclusion orders. In his final submissions, Mr Myers invited me to conclude that, on the contrary, this was a reference to those exclusions and that Mr Horman was saying that, notwithstanding the exclusions, the plaintiff was still going to Star City and Jupiters. He also pointed out that Crown did not call as witnesses either its General Counsel, Mr Neilson, or Mr Fleming, both of whom attended the 29 October meeting and may have shed light on the reference.[916]

479 The plaintiff also says that Crown, through both Messrs Horman and Fleming, knew of his exclusion from Burswood Casino. I accept this submission. The defendants say, however, that the Burswood exclusion arose out of a dispute with staff at that casino, and was not related to a gambling problem. This is not a dispute on which the case turns; but in any event, I have already found that the Burswood exclusion was driven by elements of both the plaintiff's gambling problem and an overlay of dissatisfaction with the Burswood staff (see paragraph [161] above).

480 The plaintiff points to the evidence that in late 2004 Mr Schultz made Mr Doggett "aware of the fact that Mr Kakavas was an excluded person" by and relies on the fact that Mr Doggett was not called to refute it. In response, the defendants submit that this conversation was neither pleaded nor particularised, and Mr Schultz did not give evidence that he told Mr Doggett about the NSW police exclusion. Nor did he. While Mr Schultz gave evidence that he knew of the Jupiters and Star City exclusions, he did not say that he conveyed this to Mr Doggett; he said that he expressed the view that contacting the plaintiff was a "bad call" and "the wrong thing to do".

481 The plaintiff has pleaded that by July 2004, and certainly by 27 October of that year, Crown knew that Mr Kakavas "had engaged in reckless and excessive gambling" and was "wagering and losing enormous amounts of money" at casinos in Las Vegas during 2004. Such behaviour, it is pleaded, was indicative of someone suffering from both pathological gambling and from a special disability.[917]

482 This allegation does not appear to be addressed in the plaintiff's closing submissions. For their part, the defendants submit that the plaintiff presented his Las Vegas gambling as "showing he was in control. His message to Crown was that he was wealthy, successful and enjoying pre-arranged 'high roller' trips to the American casinos without any apparent adverse impact on his business or wealth."[918] Apart from the information that he had "apparently just dropped between 3 and 4 million",[919] the defendants had no details about Mr Kakavas' Las Vegas gambling. And the plaintiff called no evidence to support the allegation that his Las Vegas exploits during 2004 were assessed by Crown as indicative of someone suffering from both pathological gambling and from a special disability.

483 In these circumstances, this allegation is not made out.

484 The plaintiff contends that Crown decided to revoke the WOL despite its knowledge of his serious gambling problem. He relies on Mr Craigie's acknowledgment that, while Crown was considering revoking the WOL in late 2004, it continued to be concerned that Mr Kakavas might have residual gambling difficulties. Mr Craigie was both the "ultimate decision maker concerning the revocation of Mr Kakavas' licence"[920] and the person who would have to approve any revocation of the WOL. And Crown's Chief Executive Officer conceded in his evidence that a self-exclusion order was relevantly indicative; in other words, the fact that Mr Kakavas had previously been the subject of such an order was suggestive of gambling problems.

485 The defendants concede that Mr Craigie did acknowledge that a self exclusion order was indicative of gambling problems. They nevertheless ask me to conclude that he regarded such problems (to the extent that Mr Kakavas suffered from them) to be in the past. Mr Craigie's concern in late 2004 was, rather, whether the risk posed by Mr Kakavas at the time his licence was withdrawn in 1998 had dissipated.[921]

486 On the evidence available to me, Mr Craigie did assume ultimate authority over the withdrawal of a licence to be present on Crown premises, and over whether any licence previously withdrawn would be restored. Nevertheless, I am satisfied that Mr Kakavas never loomed large in Mr Craigie's thinking at any time. If this conclusion is correct, Mr Craigie paid too little attention to this aspect of his role. He limited himself to accepting whatever conclusion was reached by whichever Crown employee or rag-tag committee assumed the responsibility of providing him with advice.

487 Given his failure to consider the matter with the care it deserved, I am satisfied that Mr Craigie's state of mind was as the defendants contend it was. He did not see Harry Kakavas as a person with an exploitable disability. To the extent that he thought about Harry Kakavas at all, he saw him as a man with a past which cast shadows over his capacity to gamble sensibly, and which included brushes with the criminal law. But these matters were in the past - or so Mr Craigie had been informed. He was content to accept that that was so.

488 The plaintiff further submits that Crown's concern about Mr Kakavas' gambling problems is evidenced by the views expressed by Mr Fleming during the 29 October 2004 committee meeting. There Mr Fleming said he was strongly opposed to the plaintiff's return and considered him "a risk we don't need." These remarks, coupled with Mr Fleming's recommendation that, if Crown did permit the plaintiff to re-enter, it should be at the plaintiff's request and "not Crown courting him", is a clear indication, it is submitted, that Mr Fleming was concerned about the fact that Mr Kakavas had a gambling problem and the consequent risk for Crown in attempting to lure him back. Mr Myers invited me to infer that Mr Fleming "was in possession of facts which touch upon the whole series of steps involved in giving effect to Mr Craigie's decision, the letter, the psychologist, the actual process of consideration on 3 January 2005, and indeed every step involved in getting Mr Kakavas back into the Casino."[922] I was invited to find that there was no evidence that the plaintiff had any behavioural issues; any such problems were "long in the past". Mr Fleming's view that any request to return should come from Mr Kakavas had nothing to do with any behavioural issue; it clearly sprang from concern about gambling problems. Yet, despite the evidence that Mr Fleming was "closely involved in Crown's policy making in relation to excluded persons (including self- exclusions) and withdrawal's of licence",[923] and played an active role in the decisions concerning the plaintiff, he was not called as a witness. Applying the principles in Jones v Dunkel,[924] the plaintiff invites me to draw "the appropriate inference" from the failure to call Mr Fleming.

489 Mr Young submitted that Mr Fleming, as Crown's head of security and a former policeman, was clearly directing his attention to Mr Kakavas not as a problem gambler but as a potential "security type risk". The discussion at the 29 October 2004 meeting was confined to behavioural questions, including risks associated with security. There was no evidence that Mr Fleming was referring to any gambling issue or, more particularly, that he had any direct contact with the plaintiff. His attendance at that meeting was the extent of Mr Fleming's involvement with Mr Kakavas or the issues surrounding him, and there was no need to call him.

490 I think that this is right. Mr Fleming's concern was security, not responsible gaming. Given Harry Kakavas' past history, the concentration of those at the 29 October meeting was on the circumstances which, in 1998, resulted in the withdrawal of Mr Kakavas' licence to attend at Crown premises. The fear was that the potential for strife which dominated thinking then might be realised in 2004 or beyond. Others also had a fear that, although the plaintiff seemed to have conquered his earlier gambling difficulties, they might resurface. On the evidence available to me, Mr Fleming was not one of these. That was not his area of responsibility. And I cannot, on the authority of Jones v Dunkel, infer that, if called, Mr Fleming would have given evidence that he saw Mr Kakavas not as a security risk but as a patron with serious gambling problems.

491 In support of the contention that Crown continued to be concerned about his gambling problems in late 2004, the plaintiff points to the requirement that he provide an assessment by either a psychiatrist or a psychologist in support of his application for the revocation of the WOL. This requirement was not the normal practice for dealing with a WOL; it therefore demonstrated Crown's concern about its potential exposure given Mr Kakavas' gambling problems - or so the plaintiff would have me conclude. This concern, he suggests, is referred to in Mr Aldridge's email of 24 November 2004 and again acknowledged in Mr Williams' account of his conversation with the plaintiff in his 2 December 2004 email. Further, the 9 December 2004 letter requesting revocation of the WOL, drafted by someone at Crown, includes the statement "As I was previously self-excluded I wish to advise that I no longer have any problems with my gambling."[925] There is also the plaintiff's evidence that Mr Doggett said to him in November 2004 that Crown needed a letter from a psychologist because Mr Kakavas had had gambling problems in the past. Mr Doggett was not called to contradict this evidence.

492 Despite its request of Mr Kakavas for a psychiatric or psychological assessment, I accept that Crown did not in 2004 regard the plaintiff's case as primarily one for the revocation of a self-exclusion order; the issue, as Crown saw it, was whether the plaintiff's licence to enter Crown premises should be restored. He was, after all, the subject not of a self-exclusion order, but of a WOL. The defendants accordingly submit that Mr Horman initiated the call for an assessment because "the plaintiff had previously claimed to be a pathological gambler in the past when he was facing criminal charges and [Mr Horman] wished to protect Crown."[926]

493 In my opinion, Crown did have a residual concern about Mr Kakavas' standing as a some-time problem gambler. It did wish to protect itself against an allegation that it had breached a duty of care to him by allowing him to gamble at the Casino, although it had reason of its own to think that the plaintiff's history since 1998 gave him in relevant respects a clean bill of health. Having him consult an independent expert, rather than one of its own psychologists, was entirely consistent with this position.

494 The plaintiff says that Crown, through Mr Doggett, also knew that Mr Healey had refused to provide the required psychological assessment. The evidence was that Mr Kakavas told Mr Doggett that Mr Healey "was not able to provide me with an assessment of my suitability for re-admission to Crown." Mr Doggett was not called to refute this evidence, nor was the plaintiff challenged on it in cross examination. Mr Healey's evidence was that he would have refused to give the required letter approving a return to the Casino because, in his view, Mr Kakavas as a pathological gambler remained vulnerable; and it would be risky to approve his engagement in further gambling. Given the plaintiff's statement to Mr Doggett, and given that Crown was aware that the plaintiff had been treated by Mr Healey for gambling problems, it is submitted that the Court "can properly and safely infer that Crown was aware that Mr Healey had refused to provide Mr Kakavas with a report supporting his application to return to Crown." Alternatively, Crown should have been aware of this refusal and made appropriate enquiries.[927]

495 I accept, however, that Mr Healey's position was unknown to Crown. The only evidence of the relevant conversation between Mr Healey and the plaintiff was given by Mr Kakavas. It was to the effect that Mr Healey said he would not give a supportive assessment without extensive consultations with Mr Kakavas, and then only if Mr Healey was satisfied that that was appropriate. The plaintiff then chose not to undergo this process. Mr Healey's evidence at trial (that it would be improper in the light of Mr Kakavas' history to give a clearance under any circumstances) was, I am satisfied, considerably more emphatic than anything that, in 2004, he communicated to the plaintiff. It follows that Mr Healey's true position could not have been conveyed by Mr Kakavas to Mr Doggett. I note in this context that, according to the plaintiff, he told Mr Doggett that his psychologist "was not able" to provide a report. He did not tell Mr Doggett that Mr Healey refused to do so.

496 In any event, none of this supports the theory of an unconscientious attempt to exploit Mr Kakavas' disability as a problem gambler. Crown did not select Ms Brooks. Its own psychologists were not appropriate, because not independent. Mr Healey was in Melbourne, and not easy of access from Queensland. An assessment by him would probably entail more than one consultation, unless he were prepared to condemn Mr Kakavas outright as an unreconstructed pathological gambler. At best from the point of view of the plaintiff, Crown was careless in accepting Ms Brooks rather than insisting upon a report from Mr Healey. This, however, is not a claim in negligence. Even if it were, Crown had no choice but to accept what Mr Kakavas told Ms Brooks about his absence of gambling issues and his determination to self-exclude if old problems resurfaced. The alternative was to refuse him entry, or insist upon a Healey assessment. Either alternative, post the Brooks report, necessarily involved the rejection of Mr Kakavas' account as given to her. This would be tantamount to categorising Mr Kakavas as untrustworthy, not to say a consummate liar.

497 The plaintiff submits that the psychologist's report eventually obtained by him from Ms Brooks did not contain the clearance sought by Crown. Ms Brooks stated that she was unable to do an assessment; instead she provided a summary of their consultation. Given the obvious limitations of the report, the plaintiff contends that Crown officers "sought to distance themselves from [it] and its implications." In particular, (according to the plaintiff) Mr Horman, motivated by his wish to avoid an admission that he did not see it because he knew that it was unsatisfactory, lied about his ignorance of it. But in fact Mr Horman's evidence was that he could not recall seeing the Brooks report, although he did not deny that he saw it.[928]

498 Mr Williams gave evidence that he sent the report to Mr Horman, and that the latter assured him it was satisfactory. Mr Williams' opinion that it was "fine" was, it was submitted on behalf of Mr Kakavas, "a truly remarkable statement".[929] Crown's willingness to permit the plaintiff to return to the Casino, despite the unsatisfactory nature of the report, demonstrated that Messrs Craigie, Williams, Horman and Aldridge "made a conscious decision to take a calculated risk in the hope or expectation that their unconscionable conduct would go undetected."[930]

499 The defendants have a diametrically opposite take on all this. They submit that, while the letter from Ms Brooks was qualified, it raised no adverse issue. Indeed, Ms Brooks noted the plaintiff's relapse plan which, he told her, he would not hesitate to implement.[931] It follows, according to the defendants, that the plaintiff in fact took the very significant step of assuring Crown through this report, which he chose to submit to meet Crown's requirement, that he had turned his life around, he had standing in the community, and he had conquered his gambling problem. He was thereby accepting individual responsibility for his actions in relation to future gambling. Thus, the defendants maintain, it is perverse for the plaintiff now to suggest that Crown should have realised that the statements made by him to Ms Brooks were lies, and that Crown should not have relied on the report.[932]

500 In my opinion, Crown was entitled to accept the plaintiff's representations as made through Ms Brooks. He knew why he was seeing her. He knew that Crown would place its reliance on her report. He had it within his power, through Ms Brooks, to advance - or to prevent - his return to the Casino as a patron; and he knew it. Given Crown's residual concern about Mr Kakavas' standing as a some-time problem gambler, but given also that it had no other reason to doubt his presentation in 2004 as a successful businessman whose chosen means of relaxation was to wager his wealth at the gaming tables, the Brooks report fulfilled all that Crown reasonably required. And this is so despite the fact that the report came nowhere near being a full psychological assessment of his then status as a person who in the past had struggled to control his gambling.

501 For the reasons given in paragraph [496I above, I do not accept that the Brooks report falls within some underhand Crown scheme to entrap Mr Kakavas into a cycle of gambling from which he could not escape. On the contrary, it was exploited by Mr Kakavas as a means of convincing Crown that it could safely renew his licence to enter the Casino, secure in the knowledge that he understood his problems of the past, but that they were in the past; and if that turned out to be wrong, he would consign them to history through the self-exclusion process.

502 The plaintiff submits that, having received an inadequate report from Ms Brooks, and having regard to its knowledge of his past problems, Crown should have obtained an assessment from its own in-house psychologists. It should also have made enquiries of Mr Healey. The appropriate inference to be drawn from the failure to take either step is, the plaintiff suggests, that Crown knew that, if taken, the result would have been unwelcome. Crown would have been told what it did not want to know.[933] This therefore was "plainly a case where Crown's 'wilful ignorance is not to be distinguished in its equitable consequences from knowledge'."[934]

503 I agree that Crown should have approached Mr Healey as the person who, to Crown's knowledge, last treated Mr Kakavas for gambling-related problems. It would doubtless have been told that he could tell Crown nothing without the consent of Mr Kakavas, and that even then he would require at least one further consultation. Crown then ought to have informed the plaintiff that it expected him to obtain a report from Mr Healey. The likely ultimate outcome, had that course been adopted by all concerned, would have been a report to the effect that Mr Kakavas should never gamble again.

504 But there is another difficulty here for the plaintiff. I cannot be satisfied on the balance of probabilities that Mr Kakavas would have co-operated. He told Mr Williams that he did not want to go through the process of assessment only to have his return to the Casino barred. It is therefore more likely, I think, that had he consulted Mr Healey and been told by him that gambling was something he should give away for ever, he would have gone to Ms Brooks' equivalent, or to a psychiatrist, and told that person what he told Ms Brooks. He wanted to resume his career at Crown. He would have told the consultant whatever was most likely to bring about that result.

505 Crown might have asked Mr Kakavas to be examined by one of its in-house psychologists. They, however, did not have the quality of independence without which they might have been open to criticism had they allowed him to become a Crown patron. What is more, equity is not in my opinion in a position from which it can require Crown to demand that a potential patron, suspected but not known to have a gambling problem, consult one of its own psychologists before granting that patron admission to the Casino.

506 There is another consideration, touched upon above. I do not draw the inference that Crown's failure to obtain an in-house psychological opinion, or to require Mr Kakavas to see Mr Healey, was motivated by fear of discovering an uncomfortable truth. It can be explained, I think, on the basis that Ms Brooks' report told Crown, and Crown accepted, that the plaintiff was not under a disability; and this was a reasonable conclusion because, even if he was wrong in telling the psychologist that he had overcome his earlier difficulties, he knew how to escape them in the future: by self-exclusion. I do not accept that Crown conceived of a scheme to ensure that it did not get a psychiatric or psychological report which might stand in the way of a larger plan to entrap Mr Kakavas into returning to the Melbourne Casino. Crown did not have such a scheme or plan.

507 The truth is that Crown could not obtain a reliable psychiatric or psychological assessment of someone in Mr Kakavas' position without requiring the subject to attend for many consultations with an appropriate expert. One session would simply replicate the Brooks situation. On the other hand, a requirement that the prospective patron go through a thorough assessment process would be unreasonable. This may have been avoided in this instance with an approach to Mr Healey; he had already seen the plaintiff on numerous occasions. But he was in Melbourne, and Mr Kakavas was in the Gold Coast; and the latter declined to co-operate. Should Crown nevertheless have insisted on a report from Mr Healey as a pre-condition to Mr Kakavas' return? Probably. Yet its failure to do so was not part of an unconscientious plan of entrapment.

508 It is part of the plaintiff's case that Crown knew, or was on notice about, his gambling problems not only because of his history, but also because his behaviour while at the Casino in 2005 and 2006 demonstrated that he was an unreconstructed problem gambler. By virtue of its own "Responsible Gaming Program", and with the benefit of its in-house psychologists, Crown was aware of the "classical behavioural characteristics of a person who is a problem gambler".[935]

509 The plaintiff contends that he exhibited many of the relevant diagnostic criteria during the period following June 2005. For example, he hid his gambling from others. He manipulated his funds to meet the demands of the table as he saw them. He failed in his efforts to stop gambling. He wagered at the maximum allowable hand limit, a maximum he continually attempted to increase. He visited the Casino frequently (26 times over 14 months). He gambled more than he intended, and then chased his losses, having disputes with Casino executives along the way. He threatened to ban himself. He became angry when the cards did not do what he wanted them to do, cursing them or even tearing them up.

510 There are, Mr Kakavas submits, some particularly revealing instances of this behaviour. One was his conduct in relation to the ANZ funds during the 2 July 2005 visit and, in particular, asking Crown not to bank the ANZ cheque so he could instead pay using his personal Commonwealth Bank account. Another was the dispute he had over rebates at the end of September 2005, while a third was his persistent requests in July 2006 for higher credit limits and his irrational threat to exclude himself if these were not granted. But, most significant of all, was and is the enormous amount of money he gambled over a relatively short period, and the losses he sustained: $1.479 billion turned over in 14 months resulting in losses totalling $20.5m. And in one instance, he lost $2.3m in 28 minutes. Given these figures, it is - the plaintiff would have me find - "incomprehensible" for Mr Williams to have given evidence that such behaviour was consistent with a recreational gambler who was in control.

511 The plaintiff attacks Messrs Williams and Aldridge for making what he characterises as self serving statements about their observations of Mr Kakavas' behaviour during this period. Those statements, he contends, show "the lengths to which those executives went in an attempt to cover their tracks."[936] Both stood to gain bonuses by securing the plaintiff's business. Neither man was qualified to give an opinion about the plaintiff's condition, yet they purported to do so rather than have Crown's in-house psychologists make that assessment. Their failure to involve their experts "reveals a clear consciousness of guilt".[937]

512 I interpolate to observe that, while the plaintiff correctly points to the lack in either Mr Williams or Mr Aldridge of any relevant expertise, he at the same time contends that Crown employees with no greater expertise ought to have used their observations of Mr Kakavas' behaviour to conclude that he was, or at least might be, a problem gambler. True, all that might be required of them is a word in the ear of a Crown psychologist. But what does Crown do then? At the most, a very carefully framed suggestion might be put to the patron that he or she seek help. I refer below to Professor Blaszczynski's acknowledgement that simplistic categorisation is to be eschewed.

513 The plaintiff in his submissions has relied on material prepared by one of Crown's in-house psychologists, Ms Kate Earl. Ms Earl is employed by Crown in its Responsible Gaming Support Centre. She was not called as a witness. Nonetheless, the plaintiff seeks to garner support from a paper prepared by her entitled "Potential Problem Gambling Behaviours and Staff Training". This paper forms part of an exhibit in this case comprising a set of papers entitled "Current Issues Related to Identifying the Problem Gambler in the Gambling Venue" prepared for the Australia Gaming Council in August 2002.[938] The plaintiff relies upon it as identifying what the submissions refer to as "indicia of problem gamblers".[939] Many of them were, according to the plaintiff, exhibited by him.

514 Some care must, however, be taken in the use of the material set out by Ms Earl. Her paper is highly qualified. She does not refer to as "indicia" the characteristics she describes. Her general approach, consistent with that propounded by both the DSM manual and Professor Blaszczynski, is to avoid simplistic categorisation. So in opening her discussion of observable behaviour, she wrote:

Distressed behaviour by a patron cannot necessarily be interpreted as indicating problem gambling behaviour. It could simply be distressed behaviour within the environment of a gambling venue.

She then warns that assumptions cannot necessarily be made based on the amount spent or the frequency or length of visits. Distressed behaviour may include "requests for credit" and "disputes or complaints".

515 Ms Earl also wrote that, although there is "rarely definitive behaviour" displayed by a problem gambler, "there are a number of behaviours which are characteristic of individuals with gambling problems." But she is careful to point out that:

Each of these characteristics in isolation is unlikely to be useful and may be otherwise accounted for by psychopathology or any number of other causes. Seen collectively, their reliability is untested as to the likelihood of the presence of problem gambling. They are included here as commonly observed behaviours by venue staff, patrons and problem gamblers presenting for treatment. This list is ranked from behaviour suggesting most likely presence of problem gambling to least.

Ms Earl then lists 13 behaviours, the eighth of which is "patrons requesting staff maintain secrecy about their attendance". This, in my opinion, is the only one of the 13 which Mr Kakavas demonstrated. He did ask that he be checked in at Crown Towers Hotel under the name "Harry Kay", and he has tendered an email from a Crown employee, Eunice Yu, requesting the Casino staff not to disclose Mr Kakavas' movements to his girlfriend, Ms Anderson..[940]

516 I take each of the others in turn, although some are referable to machine, rather than table, gambling. First, there was no evidence that during the 2005 to 2006 period Mr Kakavas requested assistance to self exclude. Secondly, he did not "personalise" a machine by subjecting it to verbal or physical abuse. Thirdly, there is no evidence that he was irritated at being addressed by venue staff while playing. Fourthly, he did not attend the Casino every day. Nor - the fifth criterion - did he repeatedly visit ATM's while gambling. Sixthly, his periods of gambling did not begin when the doors opened and continue as long as they remained so - even given that he could gamble whenever he wished, he took time out. Seventhly, he did not attempt to borrow from staff or other patrons, albeit that on occasions he made use of cheque cashing facilities. Eighthly, he did not tip a wage packet into Crown coffers. Ninthly, his family and friends did not descend upon Crown to prise him away. Tenthly, his mood swings reflected no more than those necessarily connected with the joys and sorrows of winning and losing. Eleventh, he was not attached to a particular machine. And, finally, he made no claims that a machine was malfunctioning.

517 Ms Earl observed in relation to frequent revisiting of an ATM machine that "[t]his incremental adjustment while playing can indicate common characteristics of an individual with problem gambling behaviour (e.g. chasing losses, increased amounts required for excitement, not sticking to a limit decided upon earlier)." The plaintiff also points to "external behaviours" said to be "problem gambling indicators" described in Crown's 2008 responsible gaming liaison officer training materials.[941] Those indicators include hiding evidence of gambling, failing in efforts to stop, gambling more than intended, chasing losses and moving or juggling money. All of them might also be displayed by a rich gambler having fun, but not wanting the world to know.

518 The defendants submit that there was nothing about the plaintiff's behaviour in 2005 and 2006 that could have formed the basis for Crown's staff to assess him as being a problem or pathological gambler. They point to the warning given by Professor Blaszczynski in the paper he contributed to the Australian Gaming Council publication to which I have referred at paragraph [513] above. The professor was concerned with the difficulties of identifying problem gamblers. In an important passage, he said:

In essence, there are no behaviours and signs that a problem gambler may display that can be used as a reliable and valid index for use by gaming staff.

...

... the task of identifying problem gamblers is fraught with difficulty, potentially involves issues related to intrusions of privacy, and, beyond responding to direct approaches, may be outside the skills or legitimate role of gaming staff.[942]

519 These views are reflected by comments appearing in the introductory portion of this collection of discussion papers. It was there noted that "The discussion papers show that there is no consensus on a set of criteria that can be used in the gaming room to identify a problem gambler. ... There is consensus that staff should not diagnose problem gamblers."[943]

520 The defendants contend that, by his behaviour at the Casino, the plaintiff demonstrated "an informed choice to spend some leisure time gambling",[944] an activity which he could control. They point to various factors: that he did not gamble at the Casino for five months after his licence to enter and remain was restored; that, rather than come to Melbourne on each impulsive whim, overcome by an urgent need to satisfy a craving, he carefully negotiated the arrangements with Crown staff beforehand; that he took breaks of weeks or months between visits; that he gambled for short periods, with intervals for meals and entertainment; that he brought his girlfriend and other friends to Crown, sometimes into the Casino as an audience; that he stayed at Crown on occasions without gambling; that he often left with winnings; that, when he did lose, it was "usually only his pre-arranged front money"; [945] that he used and enjoyed his complimentary allowances; and that he maintained his equanimity when he lost, remaining polite, appreciative of the service provided by Crown, and appearing to be philosophical. Moreover, his conduct and apparent success in his business and private life, as well as his interactions with Crown staff, suggested that he was entirely capable of making independent decisions and judgments in his own best interests.

521 I accept the broad thrust of these submissions. In my opinion, which is based upon the extensive review of the relevant records as set out under the heading The Plaintiff's Gambling Visits to Crown and commencing at paragraph [259] above, the plaintiff's patterns of play between June 2005 and August 2006 were generally consistent with the picture of himself which he sought to present to the world: that of a successful businessman who enjoyed gambling, but with an appropriate awareness of the need for balance. The emphasis, however, is on the expression "generally consistent". There is no doubt that at times he displayed the symptoms upon which he now relies: he gambled for sustained periods with no indicia of balance; and he lost vast sums of money.

522 The plaintiff's first visit to the Casino on 24 June 2005 is an example of what I would term the controlled play of a recreational gambler. A brief recapitulation of the circumstances will illustrate the point. Mr Kakavas came to the Casino after a five month period during which he could have taken, but did not take, his patronage to Melbourne. When, eventually, he decided that the time was ripe, he negotiated hard with Mr Williams about the terms of his return. These being settled to mutual satisfaction, he arrived late on a Friday afternoon, and gambled for about two and a half hours. He won $1,040,000. He took a break for dinner with three guests. He then played again for 15 minutes and, after losing $40,000, he stopped. He left the next day ahead by $1m. His evidence was that he stopped because of the call of his Gold Coast business.

523 In a sense, the dye was then cast. After this first visit, Harry Kakavas was not merely a Crown patron; he was a Crown high roller. This doubtless increased Crown's commercial interest in his return to Melbourne. At the same time, his impeccable behaviour doubtless diminished any residual concern about whether he had a gambling problem. Indeed, here was confirmation of the message, conveyed through Janine Brooks and through the plaintiff's general presentation at that time, of a wealthy businessman with the resources with which to indulge.

524 How, then, should Crown have responded to what are said to be later indications of problem behaviour? It is worth repeating what was said by Professor Blaszczynski:

In essence, there are no behaviours and signs that a problem gambler may display that can be used as a reliable and valid index for use by gaming staff.

...

... the task of identifying problem gamblers is fraught with difficulty, potentially involves issues related to intrusions of privacy, and, beyond responding to direct approaches, may be outside the skills or legitimate role of gaming staff.[946]

525 It must be remembered here that negligence on Crown's part is not an issue. Crown had no duty of care to Mr Kakavas by which it was bound to protect him against his desire to wager his wealth. Crown was not, however, entitled to exploit unconscientiously a disability of which it was or should have been aware. If, contrary to the plaintiff's primary position, there was no such unconscientious conduct on Crown's part before June 2005, Mr Kakavas must, if he is to succeed at least in part in this proceeding, prove on the balance of probabilities that, on the basis of his conduct on his visits after June, Crown must have realised, or at least suspected, that his gambling problems had resurfaced. Crown then (or so the plaintiff asserts in support of his fall-back position) decided unconscientiously to exploit that vulnerability.

526 Mr Kakavas' behaviour in June provided no foundation for a conclusion that he was vulnerable. The plaintiff's gambling during Thursday 8 September 2005 and the following day (Friday 9 September) is likewise unhelpful to his present claim. On Thursday, the plaintiff gambled for just under two hours. He won $2.5m. He had brought with him $4m in front money, and had requested and been granted a $1m cheque cashing facility. The request may have been inspired by a desire to qualify for privileges - such as use of the Crown private jet as well as the higher hand limit - the availability of which was triggered by the provision of $5m in front money. Be that as it may, Mr Kakavas only used $2.8m of that front money, and did not call on the cheque cashing facility at all.

527 The plaintiff's capacity to restrict his playing notwithstanding the balance of the front money and the cheque cashing facility he had in reserve is, it seems to me, an example of the plaintiff exercising control over his playing. The following evening he spent a little over two hours at the tables, and won another $4,550,000. He walked away with winnings totalling $5m. There is nothing about this pattern of play that was consistent with the "classical behavioural characteristics of a person who is a problem gambler." In these circumstances, it is easy to imagine what his reaction would have been had Crown sought to interrupt him with a request that he see a psychologist before (if ever) he gambled again at the Casino.

528 The plaintiff's playing on his visit on 12 September 2005 shows a similar pattern. Baccarat occupied him for a little over two hours that evening, and he won $1,925,000. This was followed by a short session of ten minutes during which he won another $115,000. He then stopped, taking with him winnings of $2,040,000. I do not think this pattern of behaviour could have formed the basis for any knowledge on the part of Crown that Mr Kakavas was labouring under a disability.

529 On 11 and 12 July 2006, just under a month before he finally ceased to play at the Casino, the plaintiff gambled in a manner which, as I have already noted in paragraph [410] above, seems consistent with someone playing in a controlled manner. His hand limit was $150,000. He took breaks, and stopped when he was ahead. The result was that he won $3.65m using a $550,000 credit facility. Again, I cannot find that Mr Kakavas was here demonstrating the indicia of a person burdened by a special disability.

530 Some visits, however, were in marked contrast. During these, Mr Kakavas gambled at length, drawing on winnings from earlier sessions and calling upon commissions or credit to supplement shortfalls. In some instances, the succession of bouts of play and the opening and closing of various programs appears to have placed pressure on Crown's administrative staff who, when calculating commission, had to scramble to keep up. Over the Labour Day weekend (10 to 13 March 2006) the plaintiff engaged in long and intense bouts of baccarat, re-using in successive sessions both his front money and his winnings. On Friday 10 March, he played for four hours in the afternoon and then for an hour and quarter in the evening. He won $2.4m and redeemed his front money of $4m. The next day he gambled from 2.13 pm with some breaks until 12.48am. Again he won, this time $5,300,000. On Sunday 12 March, he and baccarat joined forces at 12.05 pm and remained more or less in tandem, playing until the early hours of Monday 13 March, finishing just after 5.30am. He then played briefly that afternoon. By the end of this long weekend, Mr Kakavas had won $10m. He left the Casino elated.

531 Over those four days, the plaintiff had opened and closed six programs (programs No. 10 to 15). He said that this reflected his inability to stop. I do not agree. He was winning, and did not want to stop. Had Crown tried to call a halt, he would not have been relieved that a great burden was being lifted off his shoulders. He would not willingly have abandoned his gambling career. He would have ignored its request or, more probably, dismissed it with considerable anger. This being so, he has difficulty in shifting to Crown the burden of forcing him to do what he would not take responsibility for doing himself. In any event, I am not satisfied that Crown was motivated by a desire unconscientiously to exploit him.

532 In my opinion, the plaintiff's play over the 2005 Labour Day weekend demonstrates the problems that would beset a casino were it obliged, on pain of being guilty of unconscientious behaviour, to disallow him from playing. Could it seriously be said that Crown should have insisted that Mr Kakavas give baccarat away, and remove himself - possibly forever - from the Casino, all because he was gambling at length, sometimes frenetically, and with large sums of money? Or that, by allowing him to play, Crown was acting unconscientiously?

533 In certain circumstances, the answer to the last question would be yes. But those circumstances would not often arise. A first necessary ingredient would be a well-based suspicion, or better, that the patron was a problem gambler. But many of the indicia are ambiguous. They may point, accurately, to a quite unbalanced series of gambling decisions. It is also entirely possible that those same indicia might point to a wealthy person splurging money which is theirs to do with as they like. Then, even if Crown employees formed the belief that a patron was in difficulty, they could do no more than ask the patron to seek help. On the other hand, if they formulated a scheme to exploit the possible problem gambler's vulnerability, and thus to lure him or her to continue gambling at the Casino in circumstances where, left to himself or herself, the patron would have desisted, a case of unconscientious conduct might be made out.

534 In the present instance, however, I am not satisfied of two matters which are essential to the plaintiff's case. I am not satisfied that Crown did formulate a scheme to lure Mr Kakavas to commence or to continue to gamble at the Casino. Nor am I satisfied that, even if Crown had such a scheme, it would have worked. On the contrary, I am satisfied that, had Mr Kakavas wished to escape the enticements of the Casino, he could have done so, with ease. He could have arranged for self-exclusion.

535 The plaintiff's gambling during his visit between 3 and 5 May 2006, as a result of which he ultimately lost $4.6m, was indicative of intense and prolonged playing involving the use of successive amounts of front money. Mr Kakavas also drew on both the cheque cashing facility offered by Crown and the commissions to which he was entitled on turnover. On 3 May 2006 he played for a little under two hours and lost a total of $2.1m made up of his $2m front money and $100,000 of his commission. After a two hour break, he played again, drawing on a $500,000 cheque cashing facility. He lost. The following day, Mr Kakavas used fresh front money of $1m, together with $100,000 in commissions, all of which he also lost in two hours that afternoon. Following a break of about one and a half hours, the plaintiff drew on a $500,000 cheque cashing facility. In the next hour and forty minutes he won $5,194,000. This was followed by bouts of play that took him from the late afternoon until 3.52am the following day. During this period his fortunes swung one way and then the other, but the ultimate outcome was a gain of more than $3.4m. A break of about five hours was succeeded by two and three quarters of an hour during which he first lost more than $1.5m and then won more than $1.35m. Again, after a break of an hour and three quarters, Mr Kakavas resumed playing. He gambled from 3.17pm until 11.45pm. During this period he seems to have lost a total of $4.6m, part of which was drawn from his earlier winnings, and part from a fresh injection of front money together with commission (which exceeded $1.3m), drawings on the $500,000 cheque cashing facility and, finally, $94,000 in cash.

536 The plaintiff's comment during his evidence about these three days of gambling was: "Blind Freddy could see I was clearly chasing my losses ... I was chasing them vigorously ... and in a blinded state."[947] But it is not at all clear that Blind Freddie was present. There was no evidence about the continuity of Crown's staff over this period, nor was there any evidence of any system of monitoring the plaintiff's behaviour in a manner that would enable a pattern of play to be discerned. Importantly, the patterns of play described in the preceding paragraph were such as to reveal alternative streaks of wins and losses. Intervention by Crown during a winning streak would have been impossible, while any judgment about whether to take steps during a losing bout would be complicated by the need to take into account the ebb and flow of gambling.

537 There were indeed episodes when Mr Kakavas lost large sums of money in short periods of time. The plaintiff points to them as examples of uncontrolled, and therefore problem, gambling. So, on 1 September 2005 for example, Mr Kakavas lost $4.3m in an hour. This, however, is part of the ebb and flow of high stakes baccarat. Thus the plaintiff had earlier that day won $2,450,000 (this took him one hour and 55 minutes). After the $4.3m disappeared, he won $2,969,500 in an hour and 45 minutes, only to lose a further $5,614,000 in the hour and 20 minutes between midnight and 1.20am. Another example is his loss of $2,545,000 between 2.32pm and 2.51pm on 18 May 2006; and a further illustration of vast sums being won quickly and lost with equal speed occurred on 6 March 2006. Mr Kakavas then first won $2,700,050 (between 12.45pm and 2.17pm), but shortly afterwards (between 3.47pm and 4.03pm) lost $2,460,000.

538 It is not surprising that, together with the times when luck ran against him, so on other occasions it chose to show him a smiling face. Thus there were times when the plaintiff won enormous sums of money in short periods. On 4 May 2006 he won $5,194,000 between 4.05pm and 5.43pm, while on 25 May 2006 he won $4,700,350 between 5.03pm and 5.48pm.

539 It seems to me that these figures say more about the nature of high stakes baccarat than they do about whether Mr Kakavas was so obviously under a disability that Crown acted unconscientiously in allowing or encouraging him to gamble. I have already noted, in paragraph [250] above, that the fact that the plaintiff lost large sums of money in relatively short periods is not necessarily prima facie evidence that he was a pathological gambler, or even that he had a gambling problem. The same is true of his rapidly acquired winnings. This knowledge could not, of itself, form a sound basis for the conclusion that Mr Kakavas was subject to a disability which made it unconscionable for the defendants to allow him to continue to gamble at the Casino. I do not accept that a casino's knowledge that a VIP gambler was rapidly turning over and losing large sums of money while playing high stakes baccarat could equate with knowledge of a special disability.

540 I turn now to Crown's knowledge of the plaintiff's efforts to hide his gambling from others, including juggling his finances to achieve that end. Mr Kakavas has pointed to his conduct on 2 July 2005, when he asked Crown not to bank the ANZ Bank cheque for $345,000. He requested instead that he be allowed to pay using his Commonwealth Bank account. Crown agreed. The point, however, is that for Crown the source of Mr Kakavas' funds (there being no reason to think that they had been obtained illegally) was a matter of indifference. In any event, there is no evidence that anyone from Crown inquired, let alone was told, anything about the plaintiff's banking arrangements. It is not for the plaintiff now to charge Crown with failing to challenge him then about the sources of, or use to which he was putting, his own funds.

541 The plaintiff says that his consistent gambling at the maximum betting limit set by the Casino is also, "as all experts agree",[948] clear evidence of someone who is not able to conserve his own interests. This, he asserts, was recognised as such by Ms Earl in her paper; but I confess that I have not been able to detect where in that document Ms Earl states that the fact that a player consistently bets at the maximum limit per hand is clear evidence of problem gambling. I have already noted above the emphasis by both Ms Earl and the other authors of the various discussions papers on the absence of definitive criteria for problem gambling. And this seems to accord with commonsense. The evidence of Mr Craigie was that high rollers seek the highest hand limits that a casino is prepared to give; this is one of the areas in which international casinos compete for the custom of VIP players.[949] One might expect, therefore, that having obtained a high hand limit, a high roller player would want to bet at that limit. A necessarily brief perusal of the many turnover records produced by Crown suggests that Mr Kakavas did tend to bet at the maximum hand limit. But it seems to me that such evidence is highly equivocal. For a casino employee - even an in house psychologist - observing this phenomenon, it may be consistent with the VIP player not being able to conserve his own best interests; alternatively, it may be consistent with a gambler legitimately exercising his right to enjoy the excitement of betting at the maximum. Without more information, how is one to determine the matter? And more importantly, what is it that Crown was expected to do? In my opinion, there was not here clear indicia of a person not able to conserve his own best interests. I do not think that, on this evidence, Crown was placed on notice that Mr Kakavas was burdened by a special disability.

542 Another indicator of his problem gambling cited by the plaintiff is the dispute over rebates which he had with Crown at the end of September 2005. I do not accept this submission. The plaintiff, having negotiated for himself a $450,000 benefit beyond that to which he was legally entitled, now seeks to rely upon it as an example of a special disability which rendered him incapable of making decisions or judgments to conserve his own best interests. In my opinion, however, there is an element of perversity about this argument. Far from being a demonstration by Mr Kakavas of his disability, this was an excellent example of his highly developed capacity for leveraging a favourable deal from a disadvantageous situation.

543 The plaintiff also points to his requests to Mr Aldridge in July 2006 for higher credit limits, coupled with his irrational threats to exclude himself if these were not granted. Here, the plaintiff argues, are "classical behavioural characteristics of a person who is a problem gambler".[950] He relies on Mr Aldridge's observation, made in a memorandum written in July 2006, that such a threat was not logical.[951]

544 There was some controversy during the trial over the admissibility of Mr Aldridge's memorandum. The defendants submit that it is admissible under s. 55(1) of the Evidence Act 1958. They also point out that Messrs Aldridge and Williams were cross examined on the document. But, perhaps most tellingly, is the fact that the plaintiff relies upon and quotes from the memorandum in his own written submissions. In these circumstances, I will receive the document into evidence.

545 This state of affairs arose quite late in the gambling period in question. As a possible indicator of Mr Kakavas having a gambling problem, therefore, Crown could hardly be expected to have acted upon it in time to save the vast majority of the losses the subject of the present proceeding. In this context, I repeat points already made: first, it is difficult for a casino operator to intervene with a patron during the course of that patron's gambling activities. Secondly, a request for an increase in credit is not necessarily indicative of a person who has a gambling problem. Much will depend on the individual circumstances of the case. This is particularly so given that (in the words of the plaintiff's final submissions) the plaintiff's request was for "higher credit limits". The credit at that time available to Mr Kakavas consisted of a cheque cashing facility granted pursuant to s. 68 of the Casino Control Act. His then limit was $500,000. A request for an increase was therefore a request not for credit in its normally accepted meaning (for example a loan), but rather for the ability to exchange chips for a cheque made out and presented to Crown in accordance with the general terms and conditions applicable to Crown's domestic cheque cashing facility.[952]

546 Had Mr Kakavas made successive requests for access to his cheque cashing facility in circumstances where he had already lost the front money provided for a particular program, then Crown might reasonably have concluded that he was consistently seeking to bet beyond his preset limits, and was chasing his losses. This would, I think, be an indication (but not conclusive evidence) of a gambling problem. I am not satisfied on the evidence available to me, however, that this point had been reached in this case before July 2006.

547 A more important point arises. Crown refused the relevant request. It did so despite the threat that such a refusal would result in Mr Kakavas taking out a self-exclusion order. Even if one were to conclude that at this point Crown appreciated, or should have appreciated, that their patron was a problem gambler, such knowledge cannot advance Mr Kakavas' claims against the defendants.

548 The defendants rely on evidence given by Messrs Horman, Aldridge and Williams that the plaintiff told each of them that "he was a man of substantial means and that he had set aside a substantial amount of money with which to gamble, which he could afford to lose."[953] This evidence should be viewed, it is submitted, in the light of the plaintiff's own evidence that he had a gaming bank when he was gambling in 1999.

549 Mr Horman referred to three relevant conversations with the plaintiff. The first of these occurred on 24 June 2005, shortly after Mr Kakavas' return to Crown as a patron. It took place outside the Mahogany Room reception area on the first floor. According to Mr Horman, the plaintiff spoke about a cache of $25m that he had set aside for gambling, and that, in response, Mr Horman remarked that the plaintiff should consider "taking it a bit easy".[954]

550 The next conversation about which Mr Horman gave evidence occurred on the Riverside Promenade (the area between the Casino complex and the river) on 17 March 2006.[955] The plaintiff told him that "everything was terrific" and remarked that Mr Horman probably knew that he had won $10 million. According to Mr Horman, he then said that "on top of the 25 that he had ... set aside to gamble with, now with the $10 million as well he may even decide, and I think his expression was, to give away the punt and not give it back or not put it back and might even give it away for a couple of years."[956]

551 Mr Horman then spoke in his evidence about a further conversation on the Riverside Promenade some time later in 2006. The plaintiff commented that he was "down $10 mill" - something that he expected was already known to Mr Horman (which it was not). He then said that "with the $25 mill that he had set aside, being down $10 mill wasn't a problem." Mr Horman reminded him of his earlier thoughts about giving away gambling, to which the plaintiff responded by swearing and saying that if Mr Horman could get his fraud squad investigators and his fraud squad accountants to go to the Gold Coast, "he would open up his offices and he would open up his books because he was all legit and he was in the position to be able to prove that."[957]

552 Mr Aldridge gave evidence that he had a conversation with the plaintiff in the middle of May 2006 regarding his level of gambling. At that time the plaintiff "was in the middle of his run of losing trips". The plaintiff mentioned that "he had approximately $10m left to gamble with, that was what he was prepared to put at risk. If he lost that he would probably give gambling away for a year."[958] At this time, when the plaintiff "had had a particularly long run of losing trips",[959] Mr Williams asked Mr Aldridge to record any changes which he may have noted in the plaintiff's behaviour, and any conversations they may have had during that period. The result was an email from Mr Aldridge to Mr Williams on 30 May 2006.[960]

553 Mr Williams gave evidence that he had discussions with the plaintiff in the first half of 2006 about his financial position, during which the plaintiff "would constantly be very open about the considerable resources that were available to him and the fact that his business as such was going extremely well. ... He often referred to him being worth a net amount of $70m."[961] When asked about whether he observed any change in behaviour following the series of losses borne by the plaintiff up to May 2006, Mr Williams gave evidence that the plaintiff "was very philosophical after all of his visits. Win, lose or draw, his demeanour, apart from that big win that he had, was very consistent."[962]

554 The plaintiff vehemently denied most of this. He denied telling any Crown employee that he had calculated how much he could afford to lose.[963] He further denied (a) telling Mr Horman in about June 2005 that he had a pool of money for gambling, or (b) saying to him on 17 March 2006 that he had $25m that he was prepared to set aside for that purpose. His evidence was that he did not say any such thing because he never had any such money.[964] Finally, he refuted Mr Horman's claims about their discussion later in 2006.[965] He also claimed that he did not tell Mr Aldridge about a further $10m with which to gamble - or that, if that were lost, he would take a break.[966] He likewise denied Mr Williams' evidence both about his net worth of $70m "made ... from nothing" and about a pool of funds with some of which he was prepared to gamble.[967] The plaintiff denied that he had set aside such money; on the contrary, he said, he kept borrowing money for each gambling trip.[968]

555 The plaintiff submits that all the defendants' evidence on this matter should be rejected as a recent invention. He points in particular to the fact that, despite being a meticulous note taker, Mr Horman made no record of the three conversations. When confronted with this, the argument continues, that "meticulous note taker" made a very unconvincing reference to a passage in an email. Unconvincing, because that document was never produced or better identified; and this, as the plaintiff submits, was not the only occasion on which Mr Horman "sought solace in a non existent document when confronted with an obvious weakness in relation to his evidence."[969]

556 I accept this criticism. Moreover, Mr Horman conceded in cross examination that he did not believe Mr Kakavas anyway. Nor did any of the patron credit profiles prepared by Crown contain any mention of a $25m gaming bank. On the contrary, in December 2004 Mr Williams noted that, while successful in the property market, the plaintiff's financial position was highly volatile, and that Crown would only deal with Mr Kakavas on a cash basis. Finally, the plaintiff contends, his own conduct was inconsistent with him having such a fund: he repeatedly sought to have his cheques cashed; on 2 July 2005 he could only access $345,000; he sought credit from Crown on 6 July 2006 on the basis that he would repay any debt from a property settlement due the following day; and, later in July 2006, he made (and Mr Aldridge refused) his applications for higher cheque cashing facility limits.

557 I nevertheless accept that Mr Kakavas' promotion of himself included at one time a boast that he had a gaming bank. The boast was not true, but the plaintiff was not scrupulous with the truth when speaking of his wealth. In any event, I am satisfied that Crown thought him to be a person of considerable means, and that it based its belief, in part, on what he told the defendants. He was certainly getting substantial money from somewhere; indeed, he had access to such funds as enabled him to be, for an extended period, among the first flight of high rollers. Crown was not to know the source or how he had arranged his financial affairs. And the plaintiff himself asserts that it was for the very reason that Crown saw him as a wealthy man that it assiduously sought his custom.

558 The plaintiff submits that, in addition to being a pathological gambler, he also suffered from a "situational disability in the form of an inability to win at Crown."[970] As a person the subject of an IEO, he was and is prohibited from entering or remaining in the Casino, and any winnings "paid or payable" are forfeited to the State and must be paid to the Victorian Commission for Gambling Regulation: Casino Control Act s. 78B(2). Mr Kakavas did not know this; but if he had, he would not have entered the Casino and gambled. Crown, on the other hand, actively misled him about his legal position (or so he contends) because it told him, when he raised the IEO with Mr Williams in his initial conversation with him in December 2004, and again later with Mr Horman in January 2005, that the Order would not prevent him from gambling at the Casino or impact on Crown's decision to allow him back to gamble. Moreover, it is submitted, Crown actively misled him by initiating contact, and then encouraging and facilitating his return, including offering incentives, entering into player agreements and providing him with winnings. The result was that the plaintiff "had everything to lose and nothing to gain by gambling at Crown between June 2005 and August 2006."[971]

559 According to the plaintiff, Crown knew about the IEO at all relevant times. Mr Horman referred to it in his 5 November 2000 memorandum, which was sent to and read by Mr Craigie. Despite his suggestion to the contrary, I am satisfied that Mr Horman's knowledge of the IEO was based on his own enquiries with his police and casino contacts, not on anything told him by the plaintiff. Nonetheless, the existence of the IEO was confirmed by the plaintiff in a conversation he had with Mr Horman on 14 November 2000, while Mr Horman referred to it in both an email to the Casino Crime Unit on 16 November 2000 and in a further memorandum dated 22 December 2000. There was no suggestion, in any of these references to the IEO, that Mr Horman had any doubt about its existence. The attempt by him to draw a distinction between knowledge, or a belief about the truth of the information, and second hand information about which Crown had not received official notification, was in my opinion untenable. In short, Mr Horman's evidence about the state of his knowledge of the IEO was unimpressive. I do not accept that official notification was necessary. In my view, Crown was sufficiently informed of the existence of the IEO in 2000, notwithstanding the absence of any formal notification. What follows from this knowledge, however, is another matter.

560 The plaintiff also submits that Crown had knowledge of the IEO in 2004 through Mr Doggett. He relies on the evidence of Mr Schultz, which (he says) shows that the latter refused to provide Mr Kakavas' telephone number to Mr Doggett in late 2004 because the plaintiff was an excluded patron at interstate casinos. I have already noted, in paragraph [209] above, that it is not clear whether Mr Schultz conveyed his knowledge about the IEO to Mr Doggett during this exchange. The plaintiff describes Mr Schultz as an independent witness. But I find his evidence curious. There seems to be no contest that an IEO is not concerned with gambling problems, but rather with security issues of such seriousness as to cause a Commissioner of Police to take the drastic step of excluding a person from gambling. So, when he expressed the view that contacting the plaintiff was a "bad call" and the "wrong thing to do", was Mr Schultz voicing a concern about Mr Kakavas as a security risk, or as a person with a gambling problem? And in either case, such concern seems to be inconsistent with his own involvement in facilitating the plaintiff's high stakes gambling in Las Vegas in 2003.

561 The plaintiff also relies on a telephone conversation on 8 or 9 December 2004, during which Mr Doggett was said to have told him that, because of the IEO and the interstate self-exclusions, Crown insisted on receiving the original of the 9 December 2004 letter. Given that Mr Doggett was not called by Crown, the plaintiff invites me to infer that, as a witness, his evidence would not have assisted the defendants. I note that Mr Doggett left his employment with Crown in December 2005. I nevertheless have no reason to think that he could not have been called by the plaintiff.

562 The defendants point out that the IEO is not pleaded in the statement of claim as a basis for the claim of special disability. Nor, they contend, could it be; the fact that the IEO was made, it is submitted, did not impair the plaintiff's ability to make judgments in his own best interests. He knew about the IEO. He was the person in breach of the legislation by attending the Casino. The plaintiff cannot rely on that breach as a basis for relief in equity. Moreover, at the time it was made, it had no effect on his gambling at Crown Casino; the amendments forbidding resort to the Melbourne facilities did not take place until 1 July 2004. Nor was he a patron of Crown at either the time the IEO was made, or at the time of the relevant amendments.

563 On the question of Crown's knowledge of the IEO, Mr Young submitted that the plaintiff invented a number of conversations, employing a formulaic reiteration of the words used to describe the IEO. According to Mr Young, Mr Kakavas did so in part because it became apparent during trial that a letter purported to have been written by an employee of Star City Casino to Mr Doggett in October 2000, informing the latter of the IEO, and pleaded by the plaintiff in his Reply as the basis for Crown's knowledge, was shown to be a forgery. I also note at this point that other conversations between the plaintiff and Mr Doggett in 2007, particularised in the statement of claim, which were the subject of covert recording by Mr Kakavas, were ruled to be inadmissible by me.

564 The defendants further submit that the plaintiff's evidence about mentioning the IEO during the conversations with Messrs Williams and Horman is not credible. Neither conversation was pleaded in the statement of claim.[972] The conversation with Mr Horman was raised for the first time by the plaintiff in his evidence at trial. In any event, by 30 or 31 January 2005, Mr Kakavas knew that Crown had decided to lift the WOL. That barrier to his return to Crown having been removed, it is not credible (or so the defendants contend) that the plaintiff would have raised another, the IEO. He wanted to come back. He did not want to be told that a decision made in Sydney almost half a decade ago stood in his way.

565 The plaintiff does not accept this. He argues that it was natural for him to raise the IEO with Mr Williams in the telephone conversation in December 2004; he had nothing to lose by asking the question. Likewise, he had nothing to hide or lose by mentioning the subject to Mr Horman, when he had already told him about the IEO in 2000. Mr Horman, the plaintiff submits, was an untruthful and unreliable witness on this topic.

566 I do not agree that Mr Kakavas had nothing to lose by raising the IEO. Nor do I accept the plaintiff's version of these conversations. He was at this stage keen to return to the Casino. It seems to me most improbable that, in that context, he would have raised the impact of the IEO with either Mr Williams or Mr Horman.

567 During his evidence Mr Craigie conceded that he read the references to the IEO made by Mr Horman in his various memoranda prepared in 2000. The plaintiff submits that the suggestion that as at late 2004 Mr Craigie had forgotten about these references should be rejected. Knowledge once obtained by a corporation is not, for the purposes of legal responsibility, lost. Nor is it credible that Crown forgot about it in late 2004 when it was considering lifting the WOL. Mr Kakavas points to the reference in the handwritten minutes of the 29 October 2004 meeting to Star City. This showed, it is submitted, that Crown had Mr Kakavas' relationship with Star City in mind when it was considering the WOL. Crown did not forget about it; it simply chose to ignore it because it was in its commercial interests to have the plaintiff return to gambling at the Casino.

568 The plaintiff here relies upon remarks made by the NSW Court of Appeal in Fightvision Pty Ltd v Onisforou & ors.[973] When considering whether knowledge held by two former employees continued to be part of the knowledge of the employer, the Court said:

We can see the force of the observation by von Doussa J in Beach Petroleum NL v Johnson that knowledge imputed to a company should not be treated as being simply forgotten or lost at the death of the director whose knowledge was imputed. In El Ajou v Dollar Land Holdings Plc Hoffman LJ, as his Lordship then was, said that once knowledge was treated as being the knowledge of a company in relation to a given transaction, the company continued to be affected with that knowledge for any subsequent stages of the same transaction, whether or not it was imputed from the knowledge of a director who had in the interval ceased to be a director. We do not think this was in contest, and there are sound practical reasons for corporate knowledge including the knowledge of former officers and employees. A corporation cannot cause itself to shed knowledge by shedding people, and it cannot be that a head of sporting acquisitions can sign up a sporting identity whom his predecessor could not sign up simply because of the change in personnel. There may be limits to the continuation of corporate knowledge, for example, by regard to the transaction as suggested by what Hoffman LJ said ...[974]

569 The defendants submit that the principle of continuation of attributed knowledge must be subject to limitations. Whether or not Crown had forgotten about the IEO depended on the nature and importance of the information. At the time that the IEO was made, it had no legal effect in Victoria because Victorian legislation did not then recognise an IEO. Moreover, Mr Kakavas was not then a patron at Crown. The fact, therefore, that the NSW Commissioner had banned him from an interstate casino was in 2000 of no more than passing interest (if that) to Crown officers. It is unsurprising that, four years later, no one at Crown considered the possible effect that the 2000 NSW exclusion had on the plaintiff's position in late 2004.

570 I accept that, when the issue of revoking the WOL was under consideration, the relevant officers at Crown did not appreciate the significance of the 2000 exclusion. This is not a case of Crown attempting to deny having knowledge of the NSW ban because the relevant officers had left its employ, as in the Fightvision case. Here, because Crown did not bring the NSW position to mind, it did not form part of any unconscientious decision to welcome Mr Kakavas as a patron.

571 The plaintiff submits that, in allowing him to gamble while it knew that he had a gambling problem, and when it knew he could not retain his winnings, Crown engaged in unconscionable conduct. Passive acceptance by Crown of the benefits thereby derived is, it is submitted, sufficient to invoke the equitable remedy. But, it is further submitted, the evidence shows that Crown did more: notwithstanding its knowledge about his gambling addiction, it actively pursued Mr Kakavas to gamble at the Casino. It was Crown who initiated contact with the plaintiff in late 2004 and then "actively encouraged and facilitated his return", providing him with inducements to gamble and exploiting his vulnerability while he was gambling. The plaintiff's ready acceptance of or request for inducements is, he argues, irrelevant; as a pathological gambler, it is to be expected that he would act as he did. Moreover, the expert evidence is that the provision of inducements "would only worsen his uncontrollable urge to gamble and his condition."[975]

572 The plaintiff emphasises what he describes as a reversal by Crown of the position which, from 1998 to 2004, it adopted towards him. Between May 1998 and January 2001 it refused every one of his requests to return to the Casino - or even to the other areas within the Crown complex. Then, in late 2004, Crown reversed its position. It did so, the plaintiff says, because it discovered that he was doing well financially and that he was losing large sums of money gambling in Las Vegas. Crown wanted to be part of this. So it was that Messrs Craigie, Williams, Aldridge and Horman "deliberately took a calculated risk to lure Mr Kakavas back, in the expectation Crown would profit from his pathological gambling behaviour."[976] In late 2004, Crown - not the plaintiff - initiated the first contact.

573 A very different picture is painted by the defendants. It is of Mr Kakavas banging on the door to return. It is, so the plaintiff contends, therefore inaccurate. According to the plaintiff, he ceased to request entry from early 2001, despite occasional contact with Crown officers. Mr Kakavas' denial that he asked Mr Ratnam to intercede on his behalf with Mr Horman in July 2003 should be accepted, it is submitted, particularly given Mr Horman's acknowledgement that, only two months beforehand, he had met the plaintiff - and the latter made no mention then of wishing to return to the Casino.

574 The plaintiff goes further. Crown's false portrayal of the plaintiff as a man desperate to return to the Casino is supplemented, he argues, by Mr William's willingness to concoct evidence about Mr Ratnam telling him, on two occasions some time after May 2004, that Mr Kakavas was keen to be accepted as a Crown patron.

575 The evidence to which the plaintiff refers was given by Mr Williams during his examination in chief. He was asked whether, "later than May 2004", Mr Kakavas came to his attention again.[977] In response, he said that he could recall receiving telephone calls from two Crown employees, one of whom was Mr Ratnam, who had "heard from a mutual friend of his and Mr Kakavas that Mr Kakavas was interested in coming back to Crown and playing".[978] A question or two later, Mr Williams referred to another conversation with Mr Ratnam in which the latter described a meeting he had with the plaintiff. The plaintiff submits that Mr Ratnam's evidence does not support this version of events.

576 Up to a point, the plaintiff is right. Mr Ratnam said that he spoke to Mr Williams shortly after returning from the Gold Coast to Melbourne in July 2003. I accept this evidence. I find, therefore, that Mr Williams was wrong in (apparently) placing this conversation in 2004. That Mr Williams was confused is made clear in cross-examination when, in answer to a question about when Mr Ratnam spoke to him about the Gold Coast encounter, Mr Williams said that it was shortly after Mr Ratnam returned to Melbourne.[979]

577 I conclude that Mr Williams, whose evidence on many issues was unimpressive, got his dates confused - not so much because his memory was poor as because he became entangled by his efforts to tailor his evidence to meet what he thought would best suit Crown's case. I also conclude, however, that the issue is unimportant. Mr Ratnam was an impressive witness. He presented as honest and accurate in giving his evidence. I am satisfied that he was not a party to any plan to lure Mr Kakavas to return to the Casino so that Crown could prey upon his disability as a problem or pathological gambler. But, more importantly, I am satisfied that there was no such plan. Mr Kakavas was keen to resume his patronage of the Casino. Crown was equally enthusiastic. In these circumstances, it does not matter who initiated the contact from which the rest followed. As for Mr Ratnam's 2004 role in obtaining Mr Kakavas' return, it was limited to assisting Mr Williams to obtain the plaintiff's telephone number.

578 The plaintiff submits that Crown's interest in him followed enquiries made by various people about his gambling in Las Vegas. It increased after Mr Kerry Packer spoke to Mr Williams in 2004. As a result, Mr Kakavas went from being persona non grata to a highly desirable VIP patron. Mr William's denial that Mr Packer directed him to bring the plaintiff back to Crown, or even influenced the decision to do so, should - the plaintiff contends - be rejected: Crown's efforts to entice him back were entirely consistent with such an inference.

579 I accept that, when Crown heard of Mr Kakavas' exploits in Las Vegas, its interest in him grew. Crown reacted accordingly. I do not, however, accept that Mr Kerry Packer had any significant influence, if any at all, in what followed. I note the defendants' reliance on the fact that the involvement of Mr Packer was not put to Mr Williams, and find that no reliable evidence was called to support the conclusion that Mr Packer was behind a scheme to secure Mr Kakavas' return, let alone to secure it so that Crown could exploit his weakness for the charms of its Casino. On the contrary, I accept the evidence of Mr Williams that, when Mr Packer was informed about the plaintiff's imprisonment, he did not pursue the matter further.

580 While I am not satisfied that Crown's approach to the plaintiff in late 2004 was as a result of a direction from Mr Packer, however, I do accept that the interest expressed by him, and by others in the casino industry, influenced Crown's executives to re-evaluate the plaintiff's position. Given that Crown is in the business of operating a casino in a competitive international market, it is not surprising that such a reappraisal would have occurred.

581 The plaintiff further submits that, knowing that he was doing well financially, Crown officers were planning for his return to the Casino well before any contact was made with him. This can be seen not only from the email written by Mr Aldridge in May 2004 and Mr Horman's response, but also from the email written by Mr Williams in October 2004. Both Messrs Williams and Aldridge stood to qualify for additional bonuses were they to snare the plaintiff as a VIP patron. The reference by Mr Williams in his email to discussing the matter with Mr Craigie, who normally would not be involved, shows - it is submitted - that the matter was both well advanced and of sufficient urgency to take such a step. Mr William's email then "generated a flurry of activity at Crown."[980]

582 The defendants say that there was no such urgency. No action was taken following Mr Aldridge's email in May 2004. While it is true that Mr Ratnam contacted the plaintiff to ask if he could pass on Mr Kakavas' telephone number to Mr Williams, it was the plaintiff who then, on three occasions, rang and left messages for Mr Williams after not hearing from the latter - or anyone else from Crown - for seven days. The issue of whether Mr Kakavas should be allowed to return to the Casino was considered by Crown's internal committees. Mr Williams did not participate in that process. And it was not until January 2005 that a final decision was made. Indeed, Mr Horman noted in an email written on 9 February 2005 that "there is no rush to progress this matter."[981]

583 The plaintiff alleges that Mr Williams instructed Mr Doggett to contact him - which Mr Doggett did, shortly after the telephone exchange with Mr Ratnam. This accords with my conclusion that contact was made in late 2004. There then followed the conversations between the plaintiff and Mr Doggett during which, according to Mr Kakavas, Mr Doggett coached him about his application to return to the Casino. Again, according to Mr Kakavas, it was after being told that Mr Healey had declined to provide a report, that Mr Doggett urged the plaintiff to "try any psychologist". Yet Mr Doggett was not called.

584 I accept the plaintiff's evidence about these conversations with Mr Doggett. The point nevertheless remains that it was Mr Kakavas who made the statements to Ms Brooks about overcoming his past problems and about his readiness to self-exclude if he felt it necessary. I reject any suggestion that Mr Kakavas was then incapable of telling Ms Brooks, had it been the truth, that he was a pathological, or at least a problem, gambler (Mr Healey had said as much, as Mr Kakavas well knew), that he wished to disengage from that scene, but that he was having trouble resisting pressure from Crown to transfer his engagement to Melbourne. In fact, of course, as Ms Brooks report and Mr Kakavas' implicit endorsement of it shows, Mr Kakavas said nothing of the kind. What he told the psychologist was exactly to the contrary. And I repeat: he compounded and gave weight to the contrary position by providing Crown with her report.

585 The plaintiff points to the evidence that, in the period 19 November 2004 to 24 June 2005, Mr Williams telephoned Mr Kakavas more than 50 times. This evidence, it is submitted, contradicts Mr William's apparent ambivalence about whether or not he wanted the plaintiff to return to gambling. It also shows that Mr Williams was not being frank with the Court. On the contrary, it is alleged, it demonstrates that the plaintiff's return was a Williams priority.

586 I have carefully examined the relevant telephone records for both Messrs Williams and Kakavas. Having done so, I make three observations. First, each man made multiple hundreds of calls, to many different people, during this seven month period. In that context, 50 or more is therefore a very small proportion of the total. Secondly, a number of the 50 or more calls made by Mr Williams to Mr Kakavas seem to have been very brief - mere seconds - suggesting either that only a message was left or no substantial connection was made. Third, while during the relevant period Mr Williams made 52 calls to Mr Kakavas, the latter made 77 calls to Mr Williams (albeit that, of those 77, 33 appear not to have connected with Mr William's telephone).[982] I am nonetheless satisfied that in a number of instances Mr Kakavas initiated contact - and vice versa. Not knowing the content of the conversations, it is not possible from nothing more than the pattern of calls to discern who was pursuing who. Both, I think, had an interest in the plaintiff returning to gamble at the Casino.

587 One fact stands out. If one accepts that Mr Williams was importuning the plaintiff to return, he had a tough job in doing it. The evidence demonstrates that, for five months, Mr Kakavas resisted that temptation; the WOL was lifted in February, and he did not resume his career at Crown until June.

588 The plaintiff submits that Crown provided significant inducements to him these both encouraged him to start gambling in 2005 and to continue that activity until August 2006. Crown thereby exploited his pathological gambling condition and also contributed to it. The inducements included the use of Crown's private jet, a limousine service, accommodation, food and beverages, lucky money, the provision of credit facilities, unusually high betting limits, and rebates and commissions.

589 The effect of these inducements, the plaintiff submits, was such that he was unable to resist the urge to resume gambling. He points to the evidence of Mr Healey, Professor Blaszczynski and Dr Allcock about the effect that such inducements would have. Professor Blaszczynski noted that: "The presence of external inducements catering to [Mr Kakavas'] narcissistic needs would act to make it virtually impossible to resist his urges to resume gambling."[983] Dr Allcock also expressed the view that "attention, social status and the special treatment offered by [Crown] staff could be important factors to encourage making the decision to return to gambling" and agreed that these would be "powerful influences".[984]

590 The defendants submit that the plaintiff's own evidence contradicts the suggestion that he was seduced by the inducements offered by Crown. In the first place, he agreed, in his initial two and a half minute conversation with Mr Ratnam, to return to Crown; and this agreement was struck even before any inducements were discussed - and before Mr Kakavas had spoken to Mr Williams. It was Mr Kakavas who then telephoned Mr Williams repeatedly after the initial contact by Mr Ratnam. But, after organising and then cancelling his February 2005 gambling visit, Mr Kakavas refrained from gambling at the Casino until June 2005. Apart from the provision of tickets and accommodation at the time of the Australian Open, there was no evidence that during the period of abstinence any of the defendants sought to encourage the plaintiff to gamble. The plaintiff's plea that his absence from the Casino was the result of Mr William's concern not to be seen to be encouraging him, was not borne out by the evidence and was false. The fact that this was pleaded but not pursued at trial adversely impacts Mr Kakavas' credit.

591 Further, the defendants submit, while it is true that various complimentary benefits were provided to him, it was Mr Kakavas who aggressively pursued them. Those benefits resulted in a financial advantage to him: they reduced the cost to him of his gambling, while increasing his enjoyment. Those benefits should be seen in the context of a highly competitive international market for VIP gamblers. Nonetheless, the plaintiff was not treated as a special case by Crown. He got what he bargained for, having negotiated from a position of equality. The benefits included not only the run of the Casino, and with it the chance to win large sums of money, but also "complimentaries" of considerable value

592 I accept that the inducements proffered by Crown had a part to play in the plaintiff's decision to gamble at the Crown facility. Any high roller player, having experienced the privileges offered by casinos around the world, would be astute to ensure that comparable benefits would be granted by any casino seeking his or her patronage. But the evidence was that by the time Crown first approached Mr Kakavas in 2004 he had already resumed gambling; this was not the case of a man who, having gambled in the past to the point where he was diagnosed as a pathological gambler, had valiantly abstained from all such activity and was, in accordance with the warning given him by Judge Wodak, leading a life of vigilance and discipline. I am satisfied that in offering standard VIP complimentary benefits, Crown was not engaging in any nefarious activity designed to ensnare a man who had eschewed gambling. It was, rather, legitimately seeking to compete for the business of a man who was already enmeshed in the high roller world. Moreover, I am not satisfied that Mr Kakavas found it "virtually impossible to resist his urges to resume gambling." There are a number of telling instances where he was perfectly capable of resisting the urge to lay one more bet, and where he demonstrated an ability to play in a controlled manner consonant with the behaviour of a recreational gambler.

593 In the context of considering whether there was a reasonable degree of equality between the plaintiff and the defendants to determine if the latter took unconscientious advantage of the former, it is opportune at this point to set out my observations generally about Mr Kakavas' demeanour. In the witness box the plaintiff struck me as someone who was a natural salesman and negotiator. I could well imagine that he thrived in his chosen profession. He was determined, eloquent and ready with a quick riposte. He was robust and confident - perhaps too confident - during prolonged and rigorous cross examination. He demonstrated an ability to be focussed and clear in conveying what he wanted to say, and would not be swayed from that position, even where at times it became apparent that his answers were not responsive. Of course, it may be said that the man who gave evidence in this Court in 2009 was not the man struggling under the burden of a disability in 2005 and 2006. But I do not think so. Whatever the configuration of his inner landscape in 2005 and 2006, in my view Mr Kakavas presented the world with a charming and confident façade.

594 The plaintiff's evidence was that the provision of a private jet was an important aspect of his negotiations with Mr Williams in late 2004 and early 2005. He had already enjoyed such a facility when gambling at the Las Vegas casinos. According to the defendants, Mr Kakavas wanted Crown to match it. Mr Kakavas denied this; his evidence was that it was Mr Williams who said that Crown would match whatever benefits the Las Vegas casinos could offer, including the use of a jet. While I accept that Mr Williams may have said Crown had a jet that could be used by VIP players, I find that it was the plaintiff who sought this service. Mr Williams initially declined to provide the jet despite repeated requests by Mr Kakavas for it. It was not until his return journey to the Gold Coast on 8 September 2005 that the plaintiff became a Crown corporate flyer for the first time.

595 This initial resistance to the plaintiff's requests is hardly consistent with the assertion that Crown held out the jet as an inducement for the plaintiff to start gambling at the Casino. Nor do I find that Crown officers proffered the use of the jet as a tantalising prospect with which to beckon the plaintiff into the dulcet arms of lady luck. On the contrary, it was Mr Kakavas who sought this service. When Mr Williams refused to accede to the plaintiff's demands in February 2005, Mr Kakavas cancelled his proposed gambling visit and did not commence playing at the Casino until June 2005. Even then, notwithstanding Crown's refusals, he started and continued to gamble. In my view, not only was the jet not used to lure the plaintiff to start playing at the Casino, its eventual provision also demonstrated Mr Kakavas' capability when it came to negotiating benefits for himself. He was no ingénue dazzled by the prospect of a ride in a Gulf Stream 5; he was someone who negotiated for a living and who knew what the privileges were for VIP players in the competitive international gambling industry. He was capable of withholding his most powerful bargaining chip - his patronage - when his demands were not met.

596 The plaintiff also relies on the provision of the jet on two occasions to fly him to the Philippines in July 2006. It is significant, he submits, that he was the only Australian domestic player who had been flown overseas on holiday at Crown's expense. But again, as I have noted in paragraph [402] above, the evidence was that this request came from Mr Kakavas, not from Crown. Moreover, the request was agreed to by Crown because it was a way for the plaintiff to use up accrued complimentary benefits. This too, in my opinion, was an example of the plaintiff's ability to negotiate for himself a benefit over and above that accorded to other domestic VIP players.

597 The defendants point out that the plaintiff did not always get his own way when it came to the jet. In 2006 Crown refused him use of the jet to fly on a third occasion to the Philippines, and declined a request to fly him to Hawaii.[985]

Accommodation, Food, Beverages and Limousine Services

598 As a VIP player, the plaintiff was provided these complimentary services as part of his package. In my opinion, Crown did not engage in any unconscientious behaviour in offering these benefits. As I have already observed, a VIP patron in the plaintiff's position would expect such benefits from a casino seeking his business. But I think they were incidental to Mr Kakavas' decision to gamble at Crown.

599 I have already concluded (in paragraph [263] above) that the provision of "lucky money" was part of the general bargain which Crown struck with the plaintiff having regard to the practices of the Las Vegas casinos. Consistently with this, Crown has tendered a Patron Financial Transactions report prepared by the "cage" pursuant to the AUSTRAC requirements. It shows that Crown paid Mr Kakavas cash from t[986] to time.986 The first such payment so recorded was made on 8 September 2005. I accept the evidence contained in that report, and find that the plaintiff did receive cash payments on eight occasions. The relevant dates were: 8 September 2005, 9 September 2005, 18 May 2006, 24 May 2006, 25 May 2006, 31 May 2006, 6 July 2006 and 17 August 2006. I am not satisfied that he received lucky money on 24 June 2005, 1 July 2005 or 1 September 2005.

600 In my opinion, the plaintiff's recollection of the receipt of lucky money on these three earlier occasions is unreliable. His evidence was that on his first visit, on 24 June 2005, he was in the foyer of the Crown Towers Hotel when Mr Aldridge presented him with a box containing cash. But, as I found earlier in this judgment, Mr Aldridge was overseas at this time. So was Mr Williams. Nor is the plaintiff's recollection supported by the AUSTRAC report. I do not accept the plaintiff's submission that I should nonetheless find that cash was paid.

601 As I have noted in paragraph [271] above, when giving evidence in chief about his visit on 1 July 2005, Mr Kakavas again said that he received a box containing $30,000 in cash from Mr Aldridge. Yet Mr Aldridge's evidence, which I accept, was that he did not return from overseas until 11 July 2005. Further, as I have observed, the AUSTRAC report records no such payment on 1 July 2005. Again, I cannot be satisfied that the plaintiff received cash on this occasion.

602 In relation to the visit on 1 September 2005, the plaintiff said during his evidence in chief that he did not recall then receiving any cash payment. In cross-examination, however, Mr Kakavas asserted that he was given cash on the jet. This cash was, he said, separate to the $50,000 he received in the form of $25,000 as an airfare incentive and $25,000 as a complimentary bet, both of which are recorded in Crown's records and were converted into chips. But the evidence was, and I find, that he was not given the use of the Crown jet until 8 September 2005; the provision of an airfare incentive for 1 September visit is consistent with this. Again the AUSTRAC report does not support such a cash payment on this occasion. I find accordingly.

603 The plaintiff submits that Crown's records of the cash payments lacked transparency. In particular, he points to the description of some of the payments as being an "airfare incentive" when in reality any connection with airfares was purely co-incidental. He also points to the concession made by Mr Aldridge[987] that no other Australian domestic VIP player received boxes of cash on the Crown jet.

604 I suspect that Crown employees paid little attention to accuracy when characterising particular items of expenditure from the pool of funds available to a patron as part of his or her "complimentaries". If my suspicions are correct, Crown should perhaps do something about it. I do not endorse the use, in any system of accounting, of descriptive terms that confuse, distract or obfuscate rather than clarify. At the same time, I do not see this attack on Crown's accounts as pointing to the existence of some dark scheme to exploit the plaintiff's weakness in the face of the temptation to gamble. The introduction of this evidence does more to create an atmosphere of vaguely generalised illegitimacy than it does to advance the substantive case of the plaintiff.

605 The defendants submit that, in order to give substance to his claims of seductive inducements, the plaintiff falsified his evidence about receiving cash on the first three visits. They point out that providing lucky money to patrons is not unusual; indeed, they rely on evidence given by Mr Williams that Crown has "on many occasions issued customers the opportunity to get their unused complimentaries in the form of cash."[988] Moreover, given that chips can be converted to cash, there is no substantial difference between providing a patron with cash or with chips; the form such a payment takes is a matter of customer preference. Crown was doing no more than acquiescing in Mr Kakavas' request that the payment take the form of cash.

606 There is no doubt that the payment to Mr Kakavas of "lucky money" was used as an inducement to reward him for his custom and to encourage him to continue his patronage of Crown Casino. But, in my view, it was not paid as part of a scheme to exploit any disability on his part. I find that the receipt by the plaintiff of cash in the form of "lucky money" was at his request. As the description suggests, the likelihood is some gamblers, being superstitious, elect to receive complimentary benefits in the form of cash in the belief (or hope) that it will bring them good luck. At any rate, any casino which failed to accommodate the superstitions of individual high rollers would doubtless be at a competitive disadvantage, especially given the amounts at stake in the games high rollers play. If you stand to win or lose a fortune, you tend to want Dame Fortune on your side; and if some cash or other enticement is on offer, and might win her over, you take it. In these circumstances, it seems to me that Crown would be particularly astute to cater for any preferences expressed by these clients.

607 The plaintiff submits that Crown provided inducements to him to gamble by making available its cheque cashing facilities as a form of credit. The amounts involved ranged from $345,000 to $4.5m. These facilities were extended to him on numerous occasions, with that for $4.5m being the largest provided to a domestic patron at the time. Crown also encouraged him to continue gambling on one occasion by allowing him to pledge the proceeds of a future property settlement if he should lose.

608 The defendants submit that this claim is a red herring. Crown was perfectly entitled to provide cheque cashing facilities under the regime set out in s.68 of the Casino Control Act. There was no suggestion that Crown breached the Act in offering these facilities. Moreover, they are facilities offered by all major casinos around the world, and certainly those at which Mr Kakavas played. Indeed, when he ceased to play at the Crown Casino, the funds with which he gambled in Las Vegas and in the Bahamas were provided on credit.

609 The first example of a cheque cashing facility proffered to Mr Kakavas by Crown had its origins in his visit to Melbourne on 2 July 2005. The Crown records show that Mr Kakavas signed two counter cheques for $345,000 on that day. In whatever way the $345,000 ANZ cheque made out to "PBL Finance" may have been used, however, it is clear that on that day Crown provided the plaintiff with a cheque cashing facility totalling $690,000. The plaintiff says that in doing so, Crown exploited his vulnerability so as to encourage him to keep gambling.

610 I do not agree. In my view, it was Mr Kakavas who sought this facility from Crown. There was no evidence that Crown officers were engaged in any scheme to proffer this facility in order to exploit the plaintiff.

611 The next occasion when Crown granted a cheque cashing facility was on 8 September 2005. The evidence was that Mr Kakavas sought a cheque cashing facility for $1m to supplement his $4m front money cheque, thereby giving him a total of $5m in front money. As it happens, however, he did not need to draw upon the cheque cashing facility. He won that day using only $2.8m of his $4m cheque. In my opinion, the granting of this cheque cashing facility was not an instance of Crown exploiting any disability on the part of the plaintiff.

612 During the visit on 12 September 2005 Crown granted the plaintiff a restricted cheque cashing facility for $4.5m. In his submissions, this became an act of extraordinary generosity motivated by Crown's desire to exploit Mr Kakavas' position of disadvantage. The defendants, by contrast, submit there was nothing remarkable, let alone irregular, about it: Crown owed the plaintiff that amount following his $4.5m win on 9 September. In those circumstances, it was Crown who had to ask Mr Kakavas for a written acknowledgment that it could stop payment on the cheque should he lose part or all of it in circumstances in which it would no longer represent Crown's indebtedness to him. I outlined my views about this facility in paragraph [307] above. It is clear that, by enabling Mr Kakavas to play against funds owed to him, Crown was not engaged in his exploitation.

613 The next cheque cashing facility was not granted by Crown until 3 May 2006, over seven months later. It was for $500,000. Similar facilities for the same level were granted on another ten occasions between 4 May and 5 August 2006. On 6 July and 11 August 2006, Crown provided cheque cashing facilities for $1.5m and $1m respectively. There was no evidence that in providing these facilities Crown acted in breach of the Casino Control Act. Nor do I see them as exploitation of him.

614 The plaintiff submits that Crown provided him with unusually high betting limits to induce him to gamble at the Casino. On five occasions, those limits were set at $300,000 per hand. He says that it is significant that Mr Aldridge conceded that no other Australian domestic player was permitted to bet at such high levels. The $300,000 hand limit was, according to the plaintiff, first proffered on behalf of Crown by Mr Ratnam when he initiated contact in 2004, and reinforced during Mr Kakavas' subsequent conversation with Mr Williams.

615 Mr Ratnam's evidence was that he did not, when he spoke to Mr Kakavas in November 2004, mention the type of deals or programs that Crown could offer; he confined himself to pleasantries and asking whether the plaintiff would mind if he gave Mr Kakavas' telephone number to Mr Williams. I accept this evidence. Nonetheless, I also accept that Mr Williams did later indicate that Crown would be willing to match any terms that the plaintiff had enjoyed at the Las Vegas casinos. In my view there is nothing sinister about this. Crown was competing in a tough international market for the custom of a patron who was already playing high stakes baccarat. Why should it not seek to match, or even better, the terms of its competitors? As I have already noted in paragraph [541] above, Mr Craigie gave evidence that high hand limits are one of the incentives offered by international casinos to attract VIP players. His evidence was that in 2005 and 2006 the hand limit for "the very high rollers" was probably $300,000, with $200,000 for "the next [989]r".989 The defendants also point to the plaintiff's own evidence that he was permitted to bet US$150,000 per hand in Las Vegas. This suggests that $300,000 was not necessarily "unusually high".

616 Obviously, the higher the hand limit as a stake, the more money will be lost - or won. But it was Mr Kakavas who sought this limit. He acknowledged this when he gave evidence that he "knew what was going around - what was being offered and obviously I was trying to get the best maximum bet I could."[990] He knew the ramifications of betting at high levels. I have already found that Crown was not on notice that Mr Kakavas was subject to a special disability, particularly when he negotiated for and at times received a $300,000 hand limit. I am not satisfied that in granting a hand limit of $300,000 per bet on five occasions, Crown was thereby exploiting any disability on the part Mr Kakavas.

617 The plaintiff submits that Crown, through Mr Williams, enticed him into playing at the Casino by offering more attractive incentives than those he enjoyed in Las Vegas. In particular, he complained that, on his first return visit to the Casino as a patron, (June 2005) Mr Williams agreed to allow him a 20% rebate on his losses, even though on that occasion he only brought a mere $1m in front money, half the minimum of $2m ordinarily required as the trigger for a rebate at that level (the plaintiff points to the evidence of Mr Craigie that a 20% rebate on only $1m in front money was not standard: that level of front money would usually attract a rebate of 10%).

618 I have already noted my finding that Mr Ratnam and the plaintiff did not discuss the terms upon which Crown was willing to allow (or prepared to entice) Mr Kakavas to return. Nor is there evidence that in the conversations had between Messrs Williams and Kakavas in late 2004 there was any mention of a special 20% rebate for less than the usual qualifying front money. Indeed, Mr Williams recorded in his 2 December 2004 email that the plaintiff "is ready to play and will deposit $2m into our account for his first trip."[991]

619 In any event, I have found that the defendants, acting reasonably, were entitled to accept the picture the plaintiff painted of himself; a picture of a successful and independent businessman who had conquered his gambling problem and who was quite capable of self-regulation, particularly by self exclusion. Crown was therefore also entitled to offer a special rebate to Mr Kakavas for his first visit. In my view, it was not unconscientious for such a rebate to be provided following robust negotiations between Messrs Williams and Kakavas in the period leading to the June 2005 visit.

620 The plaintiff also contends that his irresistible urge to gamble was exploited by Crown when, from 16 September 2005, it placed him on a commission based program which paid him 0.65% of his turnover. The defendants submit that, on the contrary, the plaintiff had been manipulating the rebate on loss program to his financial advantage. As I understand it, the defendants contend that he did this by closing a program soon after he first suffered a loss on that program. He would then collect his rebate on that loss, and open a new program. By this means, he would qualify for a rebate even if, after a prolonged gambling session during which a number of programs might be opened and closed, the net result was a win.

621 The alternative to a rebate on loss program was a commission on turnover program. This, like the rebate on loss program, provided patrons subject to it with large financial benefits; but, unlike that program, it was not as susceptible to manipulation. Seen in this light, Crown's decision to change programs was not merely prudent. It also treated Mr Kakavas as a fully informed, experienced gambler perfectly capable of making judgments about his own best interests. Given the plaintiff's protestations that moves such as this were part of the plan of entrapment, it is - as it seems to me - significant that, according to his own case, he viewed the change negatively. I accept that the plaintiff's view of that negativity. I also accept that Crown's motive was not to please Mr Kakavas, but to protect itself against his exploitation of its rebate program. It follows that this episode cannot qualify as part of a plan to exploit the plaintiff's position of disadvantage.

Allegations Crown Concealed Mr Kakavas' Gambling

622 The plaintiff submits that, in addition to providing inducements to gamble, Crown engaged in irregular and at times unlawful activities actively to exploit his vulnerability. Those activities included concealing, or colluding in concealing, his gambling activities by the use of secret bank accounts and aliases, and by facilitating the manipulation of the plaintiff's money to hide his gambling from his bankers. I now turn to consider these submissions.

623 The plaintiff places Southbank Investments squarely in the frame of his portrait of underhand exploitation. Mr Williams told him, he says, that because of the amounts of money he was starting to bring to the Casino, Crown could offer "another account that you can use to camouflage the deposits." This was the Southbank Investments account. Thereafter (the story continues) Mr Kakavas had all his cheques for front money made payable to Southbank as a means of concealing his gambling from his business and banking connections.

624 The plaintiff relies on the evidence of Mr Craigie for corroboration of this. The Crown Chief Executive Officer told the Court that the Southbank Investments account was used by patrons who did not want to be seen to be writing cheques to a casino. Mr Craigie also conceded that, by providing the use of this account, Crown facilitated patrons who wished to conceal the destination of their money. The plaintiff says this conduct was egregious. No leader in responsible gambling would, he suggests, engage in it.

625 That might be so. For present purposes, however, the evidence is important for what it does not indicate. There is nothing in what Mr Craigie said that suggests any attempt by Crown to conceal Mr Kakavas' identity as a patron of the Casino. The emphasis, rather, is on his desire for anonymity. The defendants can therefore forcefully respond, as they have, with the contention that, far from the Southbank Investments account being a secret one, it is known to the VCGR and it is audited. Its use is not in breach of the Casino Control Act. Moreover, the evidence of Mr Williams was that it was Mr Kakavas who sought a facility that did not include Crown's name. Mr Williams added that Southbank Investments was available to patrons such as the plaintiff who wished to preserve confidentiality in relation to their banking. It is probable that, given the plaintiff's familiarity with the operations of both Australian and international casinos, he also knew that such facilities were generally available. Moreover, the defendants say it is not credible to suggest that Crown would conspire to conceal his gambling from the authorities by using an account known to and audited by the VCGR.

626 In my opinion, the provision of the Southbank account falls into the same category as the provision of other services and benefits offered to VIP players. It is not unconscientious to provide a legal and widely emulated benefit to a patron who credibly asserts that he has overcome his past gambling problems and is capable of making independent judgments.

627 The plaintiff relies upon the use of the alias "Harry Kay" in Crown internal working documents and the hotel accounts, as well as the "silent" bookings. These, he contends, are further indicators that Crown engaged in underhand tactics so as to conceal its egregious conduct in exploiting and exacerbating the plaintiff's pathological gambling problem. Yet another example of Crown's determination to conceal the fact that it was permitting a banned person from gambling at the Casino in contravention of the Casino Control Act was the provision of a private gambling salon.

628 According to the plaintiff, I should reject the evidence of Mr Williams that the silent bookings were made at the request of the plaintiff because he wanted to conceal from outsiders the levels at which he was gambling. This evidence, he submits, is not compatible with the use of a silent booking during his stay at Crown Towers in January 2005. Gambling played no part in that Melbourne sojourn - the plaintiff merely attended the Australian Open. Nor is it consistent with the fact that Crown used the alias for its internal records. In addition, Mr Kakavas points to the lack of any evidence that such a ploy had been used for his visits to other casinos.

629 I have found (in paragraph [236] above) that the request for silent bookings was initiated by the plaintiff. I do not accept that the use of "Harry Kay" was a device employed by Crown to conceal the plaintiff's gambling. The plaintiff in his submissions seeks to avoid this conclusion by asserting that that alias was used in Crown's internal working documents. But that is only partly true. A careful examination of the three large folders containing the program bundles tende[992] by Crown992 shows that, with the exception of one player funds record, the only records which use either "Harry K." or "Harry Kay" were the handwritten turnover records for the eight visits on, respectively, 24 June 2005, 1 July 2005, 1, 8, 9, 12 and 16 September 2005, and 4 October 2005. These were compiled by hand during the pressure of play, when time demanded that every reasonable means of shorthand be employed. Thereafter, with the introduction of electronic turnover records, the plaintiff's full name was used, as it was on all the other Crown documents for those eight, and all the later, trips. So, for the first visit on 24 June 2005, the name "Harry Kakavas" appears on the Crown "Interstate Premium Player Arrival Schedule" (which notes at its foot that it is to be faxed to, inter alia, the VCGA), the "Booking Authorisation", the Premium Player Agreement itself, the "Premium Player Funds Record", the "Premium Player Settlement Sheet", and on the various account deposit and withdrawal slips, patron receipts and commission chip purchase vouchers. This pattern appears consistently throughout all the Crown player records produced. The plaintiff's full name also appears on all the gaming chip vouchers and associated records. Had the VCGR or the VCGA examined Crown's records, the plaintiff's identity would have been patently obvious.

630 In any event, the use of the description "Harry K." or "Harry Kay" would have been an unsophisticated and ineffectual means of concealing the plaintiff's identity; even less useful than referring to him as "John Smith" or "Abraham Lincoln". I reject the plaintiff's submission that it is highly probable that the reason for the "alias" was "to shield the fact that [Crown] was permitting a banned person who was subject to an interstate exclusion order to gamble at [the Casino], in contravention of the Casino Control Act."[993] It is, I think, clear that the use of "Harry K." or "Harry Kay" was a form of shorthand used by the compilers of the handwritten records prepared on the gaming floor purely for in-house purposes as they recorded each bet. I doubt very much that the relevant gaming authority would go to the lengths of scrutinising individual turnover records. Those records are merely used as the basis for calculating rebates or commission, and would be of only passing interest to anyone else.

631 I have examined, under the heading "Provision of Credit" above, the drawing on Saturday 2 July 2005 of an ANZ bank cheque for $345,000. It was made out to PBL Finance. The plaintiff contends that it is an example of the lengths to which Crown went to exploit his "uncontrollable urge to gamble (and to cover its tracks by seeking to conceal the truth from the Court)".[994] When on 2 July the plaintiff ran out of funds, but wanted to continue gambling, Crown told him that the ANZ Bank had a Melbourne CBD branch which opened on Saturdays. Crown did more. It drove him from Southbank to LaTrobe Street, where the branch was situated, so that he could withdraw money in order to keep gambling. In addition, (so the plaintiff's argument continues) Crown provided an incentive to keep playing by matching, dollar for dollar, the funds contributed by Mr Kakavas. It did so by way of a cheque cashing facility.

632 It is, Mr Kakavas submits, significant that, until evidence was adduced from the ANZ Bank itself to support the drawing of the ANZ bank cheque and its subsequent re-deposit, Crown had maintained that Mr Kakavas was lying about this episode. And indeed, Mr Williams subsequently had to admit that he did direct the plaintiff to the ANZ Bank on that Saturday.

633 The defendants' account of things is that this line of argument is an attempt by the plaintiff "to try and turn the mundane events of 2 July 2005 on their head".[995] They would have me accept that, having run out of money on Friday 1 July, the plaintiff made it known to Mr Williams that he would like to continue gambling. Mr Williams saw it as part of Crown's (and his) customer service obligations to do what could be done to assist. The subject of a cheque cashing facility having been raised, arrangements were made to transport Mr Kakavas to the ANZ Bank, where he obtained a bank cheque for $345,000. As things happened, this was never used. It was therefore returned to him at the close of play. The interpretation given to the events by Mr Kakavas - namely, that it was Crown who instigated the arrangement through Mr Aldridge and that it engineered hiding the use of the funds by telling him to make out the cheque to PBL Finance - was (the defendants contend) "another example of the plaintiff seeing an opportunity to make allegations of impropriety against Crown by manipulating and inventing a few facts."[996]

634 I find that it was Mr Kakavas who initiated the activity which resulted in the issue of the ANZ cheque. He indicated that he wanted to continue at the tables; Crown was happy to accommodate that wish; and things moved on from there. It was Crown which facilitated his access to the ANZ Bank. It was Crown which granted him a cheque cashing facility. Similarly, I find that when Mr Kakavas sought a means to conceal the destination of the funds from the ANZ Bank, Crown suggested the use of PBL Finance. But the ANZ account to which Mr Kakavas thus had access was his own account, or that of one of his corporate bodies. And none of these actions involved any impropriety or illegality on Crown's part; again, it acted in a manner consistent with a casino keen to receive the plaintiff's patronage in circumstances where it regarded him as a person capable of making independent decisions in his own best interests.

635 It will be remembered that the terms of the plaintiff's Casino visits of 12 September 2005 (program 7) and the following 16 September (program 8) were unusual. They constituted, Mr Kakavas now asserts, another example of Crown's determination to exploit his gambling problem. And it is true that they gave him the high hand limit he sought ($300,000). It must also be noted, however, that those terms eliminated the rebate or commission that patrons enjoyed under a standard Premium Player Agreement.

636 At first, the plaintiff did not care about rebates or commissions. His willingness to enter into this arrangement was consistent with his preoccupation with high hand limits. They mattered above all; and this attitude towards them is, the plaintiff emphasises, "a classic behaviour characteristic of a pathological gambler".[997] But when, on 16 September, he not only lost $2.3m, but also (because this is what the terms of the program provided) missed out on a rebate on loss of $460,000, he decided that he did care. He felt cheated; and Crown understood why. On 12 September, Crown had waived the need to provide front money, and yet at the same time had granted his wish to bet up to the maximum hand limit of $300,000. The trade-off was the removal of discounts and rebates.

637 On 16 September, by contrast, the plaintiff brought with him front money of $2.3m. Yet no discounts or rebates were restored. It is true that Mr Kakavas remained entitled to bet up to $300,000 per hand. It is equally true that he had agreed to the 16 September terms. But when he voiced his dismay, not to say disgust, at the initial refusal by Crown to allow a rebate of $460,000 on his 16 September loss, Crown in early October gave way in order to appease him. And so the arrangement for payment of $450,000 by way of "extra commission", to which he was not legally entitled (and to which I referred in paragraph [320] above), was made. Significantly, he argues, it "was premised upon the basis that [he] would continue gambling uncontrollably in the fu[998]e."998 So, in order to be paid each $100,000 tranche, the plaintiff would need to turn over $100m. The plaintiff also maintains that, in coming to this special arrangement, Mr Williams was prepared to act irregularly and without proper authority. He points out that the arrangement was not documented, nor was it admitted by the defendants until the trial.

638 The plaintiff submits that his evidence about the reconciliation which resulted in his return to Melbourne and the Casino on 4 October, and about the context in which reconciliation was reached, should be preferred over that of the defendants. He says that, after he complained on 16 September 2005 about being "cheated" out of $460,000 in commission, and in addition threatened to ban himself from the Casino, Mr Williams foisted $50,000 on him, despite his protests. Crown then added to its catalogue of sins by pursuing him by telephone, including calls made both before and after he left Australia to gamble in Macau. This is supported by the telephone records which show Mr Williams called him 29 times between 16 and 30 September, while Mr Kakavas called Mr Williams "numerous times".[999] Ultimately, during a conversation on 2 or 3 October 2005, they agreed to the arrangement for payment of a total of $400,000. Together with the $50,000 already provided (on 30 September), that made a total of $450,000 which Crown agreed to give to Mr Kakavas, albeit on terms. These terms were accepted by the plaintiff, and he therefore returned to the Casino to gamble.

639 The defendants' version is that, far from being an exploitation of Mr Kakavas' vulnerability, this arrangement showed that he was able to negotiate "aggressively and persistently to advance his own best interests."[1000] There was no inequality between Mr Kakavas and Crown. On the contrary, he secured not only a large payment to which he was not legally entitled, but also a better deal than that enjoyed by other high roller players. It was not, therefore, a case of exploitation of him by Crown. Rather, if there was any exploitation, it was of Crown by him.

640 If the defendants are right, the special arrangement was a compromise. It removed what they characterise as Mr Kakavas' "manipulation of the system", but retained his high hand limit. On his first Casino visit following this new arrangement (12 September 2005), Mr Kakavas had won $2,040,000. There has never been any suggestion that, in this gambling episode, he was exploited. That does not surprise: winners do not usually attribute their wins to their having been exploited by someone else. The arrangement to pay $450,000 was made after the plaintiff bitterly complained of being cheated following his loss on 16 September. And even then he did not storm out; he stayed on at Crown for several days. Again (or so the defendants maintain) this is an attempt by the plaintiff to turn the evidence on its head.

641 The defendants further submit that it was not Mr Williams who initiated contact after 16 September. The telephone records show that Mr Kakavas did indeed telephone Mr Williams "numerous times" between 16 and 30 September: on any view, 41 calls in the week after 16 September, and then 22 unanswered calls between 19 and 23 September, can properly be characterised as "numerous".

642 Mr Ratnam gave evidence that, on 27 September, the plaintiff called him to complain that he could not contact Mr Williams. I accept this evidence. The subsequent telephone records then show that it was the plaintiff who telephoned Mr Williams while the former was in Macau. This, the defendants would have me accept, was not the behaviour of someone who had decided to sever all contact with the Casino. They further paint as incredible the plaintiff's evidence that, despite his protests, he received the $50,000. Mr Kakavas was not the complaining type when it came to his being showered with gifts. What he got, according to the defendants, was no more than that which was in line with part of the deal which he agreed with Mr Williams.

643 There is no doubt that, when Harry Kakavas - having won $4.5m - left the Casino on Saturday 10 September 2005, Crown wanted him to return; and the sooner the better. No matter that Crown's cheque for his winnings had not yet been cleared; no matter that the plaintiff protested that he was neglecting his work; no matter that he could not supply front money because the winning cheque could not be cleared over a week-end; despite all these considerations, the Crown jet was ready to fly Mr Kakavas back to Melbourne at a moment's notice. Crown was, in addition, prepared to waive front money, and to concede the plaintiff's wish for a $300,000 hand limit. I accept the plaintiff's evidence that this was the message conveyed to him by Mr Williams. I also accept that, persuaded by this Williams pitch, the plaintiff succumbed when in other circumstances he would not have returned to Crown's doors as early as Monday 12 September.

644 Crown was equally anxious to retain Mr Kakavas as a patron after he expressed his anger at not receiving any rebate on his 16 September loss. This explains its willingness to negotiate, if needs be long and hard, before and during his absence in Macau, and to offer him not only the sum of $450,000 - to which he was not strictly entitled - but in addition 0.65% commission on turnover.

645 The plaintiff is, it seems to me, justified in pointing out that turnover was an important element in the offer made by Crown. Yes, he would get the near equivalent of the $460,000 which he failed to receive following his loss on 16 September. On the other hand, each $100,000 of that sum except the first $50,000 would only come to him if he turned over $100m in bets. So Crown, he argues, put him where it wanted him to be: at its tables, preferably on a losing streak. Otherwise, he would not get his $450,000.

646 There is some force in these submissions. It is indicative, I think, of Crown's desire to placate an irate Mr Kakavas that it agreed to make good, even when not obliged to do so, the rebate notionally (that is, notionally as he would see it) referable to his 16 September loss. It is also indicative of Crown's desire, if not anxiety, to seize the main chance, that it tied the notional rebate to the plaintiff's continuing as a patron and a high roller.

647 On the other hand, it must be acknowledged that Mr Kakavas received his $450,000 even though the payment of the four tranches of $100,000 was on every occasion made before the stated threshold of a turnover of $100m had been reached. It may be inferred from this that Crown had decided to make up for the claimed deficiency whether or not its published terms were met.

648 The plaintiff at one point suggested that an agreement such as that negotiated by Mr Williams with Mr Kakavas for the granting of the substitution rebate of $450,000 was outside his actual or ostensible authority. I disagree. If Mr Williams did not have either actual or ostensible authority to do what he did, then it is remarkable that he was not disciplined for it. There is no evidence that he was. In any event, the argument that he had no requisite authority does not assist the contention that the defendants were involved in a conspiracy to unconscientiously take advantage of Mr Kakavas' disability.

649 Indeed, I see nothing in this evidence to substantiate a such a claim. Notwithstanding the October reconciliation, Crown imposed a reduction in Mr Kakavas' hand limit from $300,000 to $200,000. Crown did this in the face of Mr Kakavas' desire to keep the limit at its September level. In addition, Crown declined to restore to the plaintiff his former rebate on loss privilege. Instead, it limited him to a 0.65% commission on turnover. These are not the actions of an organisation intent upon squeezing all the blood out of a patron who it regards as under a disability.

650 The plaintiff submits that Crown's preoccupation with ensuring that he kept gambling is illustrated by the fact that three times in the early hours of 18 March 2006 one of its employees engaged in irregularities when advancing chips to him. Gaming chips to a total face value of $500,000 ($200,000 x 2 + $100,000) were advanced to him between 2.05am and 2.20am without cash payment being tendered, or a chip purchase voucher being executed. Crown admitted this irregularity and was subsequently fined $15,000 for breach of the Casino Control Act.

651 The defendants say that this was an honest mistake by the relevant Crown employee. Mr Kakavas admitted that he had asked for the chips and that he later signed a chip purchase voucher for them. Crown self-reported the breach to the VCGR. In these circumstances, the defendants submit, the plaintiff's assertion that the chips were given to him to maintain his losing momentum is yet another example of him "seizing on an innocent mistake by a dealer and then trying to elevate it into some sort of unconscientious plan by Crown to exploit him at the gambling tables".[1001]

652 The plaintiff says he signed the chip purchase voucher because he did not want to get anyone into trouble. Further, this was not an honest mistake; these were the deliberate actions of the employee in question "made in full knowledge of facts relevant to Crown."[1002] That is borne out, it is submitted, by the matters outlined in mitigation contained in a letter dated 13 October 2006 written to the VCGR by Crown's General Counsel. The letter includes the statement that the employee's "intimate knowledge of the funds that were available to" Mr Kakavas was such that the employee "was certain that payment would be made".[1003]

653 I do not accept that this was part of a scheme to entrap the plaintiff into further gambling when, deep down, he wanted to stop - or when he was so enveloped in his addiction that even the obscured desire to cease had been overcome, with the consequence that only outside intervention could release him from addiction's grip. I do not accept that this was part of any scheme at all. Mr Kakavas asked to be given the chips. He later signed for them. There is no evidence that the Crown employee was acting pursuant to any direction to that end. While the decision made by the Crown employee may have been deliberate, it was made in a mistaken effort to cater for Mr Kakavas' demands as a high roller player, knowing that the plaintiff had the necessary funds available. I accept the statement contained in the Crown letter to the VCGR that:

Crown acknowledges that despite what [the employee] may have considered to be the best of intentions and an effort to provide good customer service, his actions were a breach of the Act, one in no way condoned by Crown.[1004]

654 I have already considered (in paragraph [520] and following, above) in the context of Crown's knowledge of any special disability, the defendants' submissions about the plaintiff's ability rationally to control his gambling. I concluded that there were many instances where the plaintiff apparently conducted himself in a controlled manner while gambling, and walked away even before his funds were exhausted. Two particularly telling examples of this are, first, the period of six months between the time when the WOL was lifted and the first gambling trip in June 2005; and, secondly, the five months between October 2005 and March 2006 when the plaintiff's father was gravely ill. In neither of these periods is there any evidence of pressure by Crown on the plaintiff to use its gaming facilities, with the exception perhaps of the invitation to the Australian Open, and the tour of the facilities which followed (this was undoubtedly a marketing exercise, but no gambling took place). Overall, it is I think accurate to say that each of these periods is inconsistent with the picture, painted by the plaintiff, of the defendants unconscientiously exploiting Mr Kakavas' irresistible urge to gamble.

655 Moreover, it was open to the plaintiff at any time, and most particularly during these two substantial periods of absence, to take steps to self-exclude. He knew the procedure, and he had been able to do so in the past - in relation both to Crown and to other casinos. It is no answer to point to the evidence of the experts that bouts of abstinence are not inconsistent with problem or pathological gambling. That is not the issue here. The question is whether it is unconscientious for Crown to encourage or allow a person to return to gambling where that person gives every appearance of being in an equal bargaining position and of having the ability to make judgments in his own best interests. The plaintiff's evidence that his desire to gamble was suppressed for five months while his father was ill demonstrates that he could, when necessary, decide to put aside his own pleasure, and his need for excitement, in favour of his filial obligations and responsibilities. This is not the behaviour of a gambler so in thrall to his addiction that his ability to bargain on an equal footing, or make rational judgments in his best interest, was overborne. Nor, as I have already observed, was there any evidence that Crown sought to exploit his disability.

656 By way of the Janine Brooks letter to Crown in December 2004, the plaintiff had represented that he had conquered his past gambling problem and was able to self regulate, and had in fact self regulated, by self-excluding. I have found that Crown was entitled to rely on this representation. Nor, in my opinion, was it alerted to any change in that position before August 2006. The defendants submit that after the plaintiff raised concerns for the first time on 17 August 2006 about his losses, Mr Williams counselled the plaintiff to stop further gambling and withdrew permission for him to attend the Casino to gamble. Such conduct was "potent evidence that Crown and Williams took responsible gaming issues seriously and acted according to conscience."[1005]

657 There is no doubt that 17 August 2006 was the last occasion on which the plaintiff gambled at the Casino; but there is a dispute about the circumstances of that cessation, and about the content of the conversation held between the plaintiff and Mr Williams on that day. As I have noted in paragraph [417] above, Mr Williams gave evidence that the conversation occurred as the two of them walked to the plaintiff's hotel room before Mr Kakavas started to gamble. For the first time, Mr Kakavas seemed downbeat; not surprising, given that the topic of his conversation was his loss of between $20m and $30m. But when Mr Williams suggested the plaintiff take a break from the cards, Mr Kakavas responded with a philosophical reference to arrangements already made and a course already set. The plaintiff's version, on the other hand (as I set out in paragraph [418] above) was that any relevant conversation occurred not before, but after, he had gambled (unsuccessfully). It concerned his failure to pay a $1m cheque cashing facility upon which he had drawn during an earlier visit. Mr William's focus was not on the plaintiff's welfare; it was on whether the plaintiff's financial attractiveness to Crown was coming to an end.

658 The defendants point to the fact that, under the terms of the cheque cashing facility, the cheque was not to be presented until 21 August, and was not dishonoured until 23 August. It was not credible, therefore, for the plaintiff to speak as at 17 August of Mr Williams being concerned that the plaintiff had no remaining funds. Nor is it consistent with the fact that Mr Kakavas subsequently sought to gamble at the Casino at least three times in November 2006, on each occasion expressing the desire to deposit front moneys.

659 In my opinion, the fact that the cheque cashing facility did not require reparation by Mr Kakavas until 23 August provides compelling evidence against the plaintiff's version. Of course it is highly unlikely that Mr Williams would be talking about a failure to pay when no such failure had occurred. I find that the events of August 2006 were not the finale to a set-piece drama in which the victor, having vanquished its weaker prey, left the loser to fend for himself. On the other hand, I do not believe that Crown's only concern at that time was the plaintiff's welfare. Crown simply did not see Mr Kakavas as having any immediate commercial interest. So it happily told him, in effect, to go away until he could pay his $1m debt, and afford to provide the front money expected of a high roller.

Accessorial Liability and Defence of Illegality

660 It follows from my findings as set out in this judgment that no question of accessorial liability under the Trade Practices Act 1974 (Cth) or otherwise arises in this case. Similarly, the reliance of the defendants on the unlawfulness of the plaintiff's entry into the Casino was unnecessary. Although the plaintiff was subject to the IEO which followed his exclusion from the Star City Casino in Sydney, his claim against the defendants fails for independent reasons. At the same time, it seems to me that the plaintiff's status as a person who is subject to an interstate exclusion order has the consequence that he could not lawfully retain any winnings to which he might otherwise have been entitled as a result of his activities at Crown.

661 For the reasons set out above, I find that Crown did not seek to exploit the plaintiff's gambling disability. It knew of a problem. It might have acknowledged, if asked in 2004 whether the problem would re-surface when Mr Kakavas returned to the Casino, that that was a possibility. If asked, it ought to have acknowledged that his was a disability which on the balance of probabilities would be to its advantage were Mr Kakavas to remain as a patron over the medium to long term. It should now accept that its structures for dealing with its own desire to have Mr Kakavas resume his patronage were inadequate. Informal meetings of committees the jurisdiction of which and even the names and identities of which are uncertain, and which meet without an agenda or proper minutes, are a pathetic excuse for world's best practice in dealing with the possible return of gamblers with a history of problems. In the end, however, nothing emerges from this miss-mash to indicate the existence of a scheme to exploit. More significantly, Mr Kakavas wanted to return to the Melbourne Casino, and (with some fluctuations in his position) wanted to remain a patron thereafter. He took the relevant decisions. Crown did not dictate the outcome of his deliberations about those decisions. Of course it sought to influence them. But it did not have the power to have him do that which he in truth did not want to do. He now seeks to blame Crown for his own decisions; to place upon it responsibility for failing to do for him that which he failed to do for himself. But this is not something to which equity can accede. The responsibility was his. In the words of the Brooks report: he knew how to self-exclude, and he would do it if that was his wish.

[1] [1983] HCA 14; (1983) 151 CLR 447 at 474.

[2] Gaming Legislation (Amendment) Act 2002.

[3] Casino Control Act 1991, s. 78B.

[5] Casino Control Act 1991, s. 78A(1).

[7] Defence and counterclaim, paragraph 14.

[8] The third defendant's amended defence to the second further amended statement of claim, paragraph 15A.

[9] Statement of claim, paragraph 16(6).

[10] Statement of claim, paragraph 16(10).

[11] Amended reply and defence to counterclaim, paragraph 4(2)(c).

[13] Statement of claim, paragraph 25(1).

[14] Statement of claim, paragraph 25(3).

[15] Statement of claim, paragraph 25(4).

[16] Statement of claim, paragraph 25(4), particular (B)(ii).

[19] Amended reply and defence to counterclaim, paragraph 14A.

[20] Amended reply and defence to counterclaim, paragraph 19(c)(xvii).

[25] Plaintiff's written submissions, Part 3, paragraph 72.

[42] Dr Darmody has a post-graduate doctoral degree.

[43] T.1504: according to Mr Horman, Dr Darmody was employed by Access Programs, which in turn was paid a fee by Crown for Dr Darmody's services.

[91] Plaintiff's closing submissions, Part 4B, paragraph [13].

[122] Second Further Amended Statement of Claim, paragraph 15(G)(i)(CB.67).

[123] Amended Reply and Defence to Counterclaim filed 10 July 2009, paragraph 14A1(a).

[124] Defendants' submissions, paragraph [738], page 292.

[133] CB.345 (underlining as in original).

[146] Underlining as in original document.

[153] CB.313; clearer copy at CB.1724-1725.

[164] See paragraphs [150] and [152].

[168] CB.391 - capitals as in original document.

[207] CB.428. Emphasis as in the original.

[237] Exhibit D36, Volume 1, tab "DEF.034.009", page 70.

[238] Exhibit D36, Volume 1, tab "DEF.034.009", page 73.

[240] I have taken judicial notice of the fact that Queensland was not subject to daylight saving time in 2004 (Australian Government Bureau of Meteorology).

[241] Exhibit D46, Volume 6, doc "SUB.VOD.4349".

[242] Exhibit D46, Volume 6, doc "SUB.VOD.4331" & doc "SUB.VOD.4332".

[249] Exhibit D47. The time has been adjusted for daylight savings time.

[250] Initial evidence of this conversation is at T.213-214; subsequent evidence is at T.229.

[254] Exhibit D47, document "SUB.TEL. 0001", page 219.

[278] CB.440; original letter Exhibit P33.

[331] I discuss this further at paragraph [267].

[332] See paragraph [274].

[340] Exhibit D28 (Vol 1)(tab 1) page 1.3.

[342] See Exhibit D29 and tab 1 of Exhibit D28.

[345] These were then maintained by hand, and were on this occasion marked "Harry K" - something which in my opinion is explicable not on the basis that there was any attempt to conceal his identity, but merely by way of shorthand for very busy Casino employees.

[346] Exhibit D28 (Vol 1)(tab 1) pages 1.20 to 1.24.

[351] Exhibit D28 (Vol 1)(tab 2) pages 2.2 & 2.3.

[355] Exhibit D29, last two pages (doc "DEF.028.0094-95") and CB.595-597.

[356] Exhibit D28 (Vol 1)(tab 2) page 2.22.

[368] Exhibit D28 (Vol 1)(tab 3) pages 3.13 and 3.14.

[370] See for example the documents dated 8 September 2005 at CB.884 and Exhibit D28 (Vol 1)(tab 5) page 5.16.

[389] Exhibit D28 (Vol 1)(tab 4) pages 4.52 to 4.54.

[391] Exhibit D28 (Vol 1)(tab 4) pages 4.59 &4.60.

[392] Exhibit D28 (Vol 1)(tab 4) pages 4.65 and 4.66.

[402] Exhibit D28 (Vol 1)(tab 4) page 4.9.

[404] Exhibit D28 (Vol 1)(tab 4) page 4.12.

[405] Exhibit D28 (Vol 1)(tab 4) page 4.16.

[406] Exhibit D28 (Vol 1)(tab 4) page 4.20.

[407] Exhibit D28 (Vol 1)(tab 4) page 4.24.

[408] Exhibit D28 (Vol 1)(tab 4) page 4.8.

[415] T.371; a copy of the bank cheque forms part of Exhibit P23.

[425] Exhibit D28 (Vol 1)(tab 5) page 5.20.

[426] Exhibit D28 (Vol 1)(tab 5) pages 5.21 & 5.22.

[428] Exhibit D29, last page (doc DEF.028.0095).

[429] Exhibit D28 (Vol 1)(tab 5) page 5.26.

[434] Exhibit D28 (Vol 1)(tab 5) page 5.13.

[435] Exhibit D28 (Vol 1)(tab 5) page 5.6; T.265.

[441] Exhibit D28 (Vol 1)(tab 6) page 6.16; T.1686.

[442] Exhibit D28 (Vol 1)(tab 6) pages 6.16 to 6.25.

[443] Exhibit D28 (Vol 1)(tab 6) page 6.29; T.1687.

[444] Exhibit D28 (Vol 1)(tab 6) page 6.7.

[445] CB.888; Exhibit D28 (Vol 1)(tab 6) pages 6.6 and 6.14; see also AUSTRAC financial transactions report showing cash payment of $50,000 (last page of exhibit D29).

[455] Exhibit D28 (Vol 1)(tab 7) page 7.12.

[456] Exhibit D28 (Vol 1)(tab 7) page 7.16.

[458] Exhibit D28 (Vol 1)(tab 7) page 7.22.

[459] Exhibit D29, last page (document DEF.028.0095).

[464] Exhibit D28 (Vol 1)(tab 8) page 8.9.

[470] Exhibit D28 (Vol 1)(tab 8) page 8.6.

[475] T.326; exhibit D10, document 25.178.

[485] Exhibit D28 (Vol 1)(tab 8) page 8.14.

[486] Exhibit D28 (Vol 1)(tab 8) pages 8.15 & 8.16.

[487] Exhibit D28 (Vol 1)(tab 8) page 8.20.

[490] Plaintiff's written submissions, Part 2, paragraph 10.

[498] Exhibit D28 (Vol 1)(tab 9) page 9.24.

[499] Exhibit D28 (Vol 1)(tab 9) page 9.10.

[500] Exhibit D28 (Vol 1)(tab 9) page 9.11.

[501] Exhibit D28 (Vol 1)(tab 9) page 9.14.

[503] Exhibit D28 (Vol 1)(tab 9) page 9.28; exhibit P23.

[504] Exhibit D28 (Vol 1)(tab 9) page 9.19.

[505] Exhibit D28 (Vol 1)(tab 9) page 9.20.

[506] Exhibit D28 (Vol 1)(tab 9) pages 9.5, 9.6, 9.32 and 9.36.

[507] Exhibit D28 (Vol 1)(tab 9) page 9.39; exhibit P23.

[508] Exhibit D28 (Vol 1)(tab 9) page 9.15.

[509] Exhibit D28 (Vol 1)(tab 9) page 9.17.

[512] Exhibit D28 (Vol 1)(tab 9) pages 9.7, 9.40 & 9.41.

[521] Exhibit D46, Vol. 7, documents marked "SUB.VOD.4840" to "SUB.VOD.4844".

[527] T.1798; exhibit D48, page 448 of 936.

[530] CB.910-11. The player agreement erroneously refers to front money of $150,000, but it is clear that the plaintiff brought $1.5m.

[531] Exhibit D28 (Vol 1)(tab 10) page 10.37; exhibit P23.

[532] Exhibit D28 (Vol 1)(tab 10) page 10.15.

[533] Exhibit D28 (Vol 1)(tab 10) page 10.19.

[534] Exhibit D28 (Vol 1)(tab 10) page 10.21.