The recent decision of the NSW Court of Appeal in Hinkley v Star City Pty Limited & Sydney Harbour Casino Properties Pty Limited [2011] NSWCA 299, concerns the limitations on the rights of members of the public to enter and/or remain within private premises. The Court considered the issue in the context of where an occupier represents itself as being open to the public for the purpose of advancing commercial interests pursuant to a statutory licence or power. This decision has relevance to owners of land who operate facilities pursuant to such licences or powers and invite members of the public onto their land.
Background
The first respondent, Star City Pty Limited (Star City) was the holder of a licence for, and the operator of, the Star City Casino in Sydney (the Casino). The second respondent, Sydney Harbour Casino Properties Pty Limited (Casino Properties), is the lessee of the premises on which the Casino is located. The appellant, Mr Hinkley, was a regular gambler at the Casino.
The primary legislation considered in this case was the Casino Control Act 1992 (NSW) (the Act) which regulates the operation of casinos in NSW. The Act conferred broad powers on the Casino Liquor and Gaming Control Authority to regulate casinos, and also required the Casino to be open to the public on such days and times as directed by the Authority. The Act also provided that patrons enter and remain in the casino only by licence of the casino operator. The provision of the Act considered by this case was section 79 which provided for the exclusion of persons from casinos by way of an order.
Background
Relevant to the outcome of the decision, on 10 September 2010, both respondents wrote to Mr Hinkley giving notice that any express or implied licence he may have had to enter or remain with the Casino was withdrawn (the Notice). The Notice indicated that it was an exercise of the proprietary rights of Star City and was independent of the power conferred on Star City by the Act to issue an exclusion order (which it had issued pursuant to the Act, but later revoked). Star City further advised Mr Hinkley that if he entered the Casino he would be trespassing and that reasonable force would be used to prevent him from entering or remaining in the Casino.
Mr Hinkley commenced proceedings in the Supreme Court of NSW on 11 October 2010, seeking declarations that the decision by Star City and Casino Properties to issue the Notice denied him natural justice and was invalid, ultra vires and of no effect. In the letter of 10 September 2010, in which the licence was revoked, the respondents asserted that they were not required to observe the rules of natural justice in exercising their proprietary right to exclude Mr Hinkley from the premises. This was the issue for determination by the Court.
The matter was heard before Ward J in November 2010. Mr Hinkley's primary argument was that Star City, by operating and controlling entry to the only casino in the state, was providing a public function under governmental authority. Accordingly, Mr Hinkley submitted that by issuing the Notice, Star City was exercising a public power which gave rise to the obligation to afford natural justice.
Ward J delivered her judgement on 2 December 2010, and rejected Mr Hinkley's claim that he was entitled to natural justice prior to the Notice being issued. Ward J found that a casino was in no different position to other premises such as stadiums or bars which are subject to the holding of particular licences. In her Honour's view, merely because the control of an activity (such as gambling) derives from statutory licence does not of itself limit the ability of the owner of the premises to exercise whatever common law proprietary rights it may also have, subject to a clear statutory intention to the contrary.
Mr Hinkley sought leave to appeal from the decision of Ward J on 24 February 2011, with the application for leave and substantive appeal heard together. The basis of Mr Hinkley's appeal concerned the alleged failure of Ward J to consider the nature of the power being exercised rather than merely its source. Mr Hinkley reiterated his argument that the issuing of the Notice, despite being the exercise of a proprietary right, was an inherently public power and therefore attracted the requirement to comply with the principles of natural justice.
In the leading judgment, with which Giles JA and Young JA agreed, Tobias AJA relied on the fact that as provided by the Act, patrons enter and remain in the Casino only by licence of the casino operator. On this basis, his Honour found that there was no legitimate expectation on the part of Mr Hinkley or any other member of the public to be allowed to enter or remain in the Casino. Tobias AJA further relied on the disparate consequences of breaching an order issued under the Act and breaching the Notice, namely, the imposition of a substantial fine and imprisonment versus a civil action in trespass respectively.
Implications
In circumstances where an owner or occupier of land conducts an activity that is controlled by a statutory power or licence, even where members of the public are invited to attend the premises to participate in the activity, the owner retains any proprietary rights it may otherwise have to exclude persons from the land and need not adhere to the principles of natural justice when exercising its right to do so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
