Ipsofactoj.com: International Cases [2005] Part 1 Case 5 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Jones

- vs -

Sky City Auckland Ltd

KEITH J

BLANCHARD J

TIPPING J

ANDERSON J

GLAZEBROOK J

29 JULY 2003


Judgment

Keith J

(delivered the judgment of the court)

  1. Mr. Jones, the appellant, was from 1996 to 2001 a frequent patron of the Sky City Casino and accumulated substantial winnings, which he puts at approximately $760,000, playing blackjack.

  2. Sky City Auckland Ltd, the first respondent, holds the casino premises licence for the casino under the Casino Control Act 1990 and Sky City Casino Management Ltd, the second respondent, operates the Casino under an operator’s licence granted under that Act. On 20 April 2001, one of the operator’s employees served a notice on Mr. Jones, forbidding him from entering the Sky City premises (which were described as including not just the gaming area but also the Sky Tower, Theatre, City Hotel, carparks and restaurants). The notice said that it was issued under s 67 of the Casino Control Act and under the general law, and that it was issued on behalf of the first respondent. Nothing turns on the existence of two licences or on any difference between the licensees.

  3. Section 67 reads as follows:

    67.

    Entry to and exclusion of entry from casino

    (1)

    The fact that a casino is licensed under this Act shall not entitle any person to enter or to remain on the casino premises as against the holder of the casino premises licence or the casino operator's licence; and, subject to any right conferred by or under any other Act, every person shall leave the casino premises when required to do so by or on behalf of the holder of the licence.

    (2)

    The provisions of subsection (1) of this section are in addition to, and not in derogation from, the Trespass Act 1982.

  4. Mr. Jones, in proceedings commenced on 8 May 2001, seeks judicial review, certiorari and other relief, including declarations, relating to the exclusion notice. The principal claim is that the trespass notice is invalid and unlawful and of no further effect. The power of the casino owner or operator to exclude persons is limited, it is said, particularly by reference to considerations of reasonableness, with an obligation on the licensee to articulate the reasons after exclusion had been effected under s67.

  5. On 7 August 2002 this Court, consisting of Blanchard, McGrath and Anderson JJ, in another case relating to the Sky City Casino, held that the holders of casino licences are entitled to exclude members of the public from the casino without assigning a reason so long as they do not commit any breach of the Human Rights Act 1993 or other relevant legislation. The purpose of s67, the Court said, is to make that clear (Sky City Auckland Ltd v Wu [2002] 3 NZLR 621, para [39]).

  6. A month after receiving that judgment the two Sky City licensees applied to strike out the present proceedings. Harrison J in the High Court granted the application, putting the earlier decision of this Court at the centre of his reasons, in particular this passage in the judgment of Blanchard and Anderson JJ:

    [37]

    It can be seen that it [s67] is directed to the effect of the licensing of the casino under the Act. That fact is not to entitle any person to enter or remain on the premises and, subject to any right conferred by or under any other Act – such as the Human Rights Act – every person is to leave the casino premises when required to do so by or on behalf of a holder of the licence. In addition, the Trespass Act 1982 can be invoked. It seems to us that the very purpose of the section is to negate the doctrine upon which the respondent is relying – to negate any suggestion that because the casino is licensed, and in its particular situation therefore may operate as a monopoly created by the licence, patrons must not be excluded without good reason. The argument for [Mr. Wu] is that the section merely states the position at common law modified to require an excluded patron to leave first and argue afterwards, but surely, if that had been intended, it would have been very directly stated that persons must not be excluded without good reason although they must leave if asked to do so and contest the validity of their exclusion thereafter. It is, we think, of significance, as the [casino licensees] submitted, that the word "reasonably" does not appear in the section.

  7. Harrison J rejected the attempt of counsel for Mr. Jones to distinguish Wu because, it was said, this Court had not been considering s 67 in the context of a public law right of action:

    [14]

    .... the Court of Appeal’s construction of s67 accords with its plain meaning; it is an absolute answer to Mr. Jones’ claims, whether in private or public law. It confirms unequivocally that he has no legal right or entitlement to enter or remain on a licensed casino. This interpretation holds universally good. Its complexion does not alter depending on the origin or characterisation of a particular cause of action.

  8. Mr. Jones appeals. He faces the stare decisis hurdle created by the Wu decision, given less than one year ago.

  9. Mr. Taggart (part of the same legal team as that which appeared for Mr. Wu in this Court) in answer to the stare decisis point contended that Wu could be distinguished on the basis that the Court there was not concerned with public law issues (as, he says, appears from para [4] of that judgment), or that Wu was decided per incuriam on the basis that those public law matters were not brought to the Court’s attention. While this Court can of course reconsider and overrule its own earlier decisions and it has not stated precise rules to regulate that action, our approach is cautious. As Richardson J put it in 1986:

    Clearly the Court would and should adopt a cautious approach to the review of earlier decisions. Adherence to past decisions promotes certainty and stability. People need to know where they stand, what the law expects of them. So do their legal advisers. And a Court which freely reviews its earlier decisions is likely to find not only that the Court lists are jammed by litigants seeking to find a chance majority for change, but also that the respect for the law on which our system of justice largely depends is eroded. However, any judicial development and change reflects an assessment that the obtaining of a socially just result outweighs the considerations of certainty and predictability in the particular case. This Court has the final responsibility within New Zealand for the administration of the laws of New Zealand and while its decisions are subject to review by the Privy Council few litigants, less than one percent of those unsuccessful in this Court, feel able to follow that path. It is I think unwise to try to formulate any absolute rule. I tend to the view that we should go no further than to indicate that this Court will ordinarily follow its earlier decisions but will be prepared to review and affirm, modify or overrule an earlier decision where it is satisfied it should do so, but without attempting to categorise in advance the classes of cases in which it will intervene. In the end and after weighing the considerations favouring and negating review in the particular case, the members of the Court must make their own value judgments as to whether it is appropriate in the interests of justice to review and perhaps overrule an earlier decision. (Collector of Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 404, 414-415, see also Woodhouse P at 410, Cooke J at 411, McMullin J at 417 and Somers J at 421-422; the quoted passage has been repeated e.g. in R v Hines [1997] 3 NZLR 529, 537-538 and Aoraki Corporation v McGavin [1998] 3 NZLR 276, 291; cf Thomas J at 301.)

  10. In a 1990 case, Dahya v Dahya [1991] 2 NZLR 150, where the matter of precedent was the subject of more extensive argument by counsel, Cooke P began with the proposition that (155-156)

    .... it could not be right for this Court to overrule a prior decision of its own, even when sitting on a later occasion with five Judges, merely on the ground that on a finely balanced point of statutory construction the later bench preferred a different view. Some more cogent reason must be necessary to justify departure from such degree of certainty as the doctrine of stare decisis achieves. I do not think it would be wise to attempt in this case any exhaustive statement of the kind of reasons that may be sufficient, nor even any statement going beyond what is enough for deciding the present case. Obviously the length of time for which the earlier decision has stood (in this case six years, not a long period) is one relevant factor. Another must be the nature of the issue with which the decision is concerned.

  11. He made three observations (156-157):

    First, the question must be one of practice, in which the experience of the Court and its view of the values sought in the administration of justice in New Zealand have some part to play ....

    Secondly, neither Young v Bristol Aeroplane Co. Ltd [[1944] KB 178] nor Attorney-General v Reynolds [[1980] AC 637] deals with the relevance of case law developments in countries other than that in which the question of adherence to local precedent falls to be decided. In my respectful view it is important, especially for a small country such as New Zealand, that the national appellate court should hold itself free to take account of and benefit from decisions elsewhere in the English-speaking world. I am far from saying that we should automatically follow overseas decisions - and indeed there may well not be a unanimous view in the other jurisdictions available to be followed - but we should not foreclose our options ....

    Thirdly, a bench of five should be somewhat less reluctant to depart from a prior decision of the Court than a bench of three, especially if the prior decision was of a majority of two to one.

  12. Richardson J, having quoted from his Lawrence Publishing judgment, mentioned two points made in the Australian High Court in Nguyen v Nguyen (1990) 169 CLR 245, 269-270, about intermediate appeal courts:

    One is that, with appeals to the High Court being by special leave only, the appeal courts of the States and of the Federal Court are in many instances courts of last resort, and it is inappropriate that they should regard themselves as strictly bound by their own decisions. The other is that rigid adherence to precedent is likely on occasions to perpetuate error without, "as experience has shown", significantly increasing the corresponding advantage of certainty.

  13. He then stated four reasons for departing from previous authority (160):

    The first is that any judicial change reflects an assessment that the obtaining of a socially just result outweighs the considerations of certainty and predictability in a particular case ....

    The second is that the realities of pressures of Parliamentary time preclude reliance on the development of legislation covering all areas of law, or on the periodical reviewing of the whole body of case law on statutory provisions.

    The third is that the right of appeal with leave to the Privy Council is for practical purposes exercisable in only a minute fraction of our decisions. The point was emphasised in argument where it was submitted that the parties to matrimonial property appeals can seldom afford to take their disputes to London. An associated consideration is the natural hesitation of the Privy Council to differ from this Court on matters of local practice, or on social issues, perhaps the most striking example of this in recent years being the matrimonial property appeal in Reid v Reid [1982] 1 NZLR 147.

    The fourth and associated reason is that, in as much as our laws are designed to meet conditions and values in our society, this Court must accept responsibility for the administration of the laws of New Zealand.

  14. Hardie Boys J agreed (168)

    with the President and with Richardson J that this Court must be free to depart from its own previous decision in an appropriate case. If there has been error then the Court should correct it itself, rather than simply allow the error to be perpetuated, or hope that the party in the right will be prepared to go to London, or that Parliament will have the time and the inclination, for the cure. But this is a course that is not to be followed lightly. The attitude of "cautious willingness" proposed by Richardson J in Collector of Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 404, has much to commend it. That means, in my judgment, that good reason to depart from the previous decision must be shown: to mention a few examples, that there is another conflicting decision of this Court; that the law has clearly developed differently in other highly persuasive jurisdictions; that social attitudes or practices in this country have changed; or that even without any such factors the conviction that the earlier decision was wrong is shared by a substantial majority of the current membership of the Court.

  15. The decision in Wu is not yet a year old. It is not concerned with the kind of fundamental human right in issue, for instance, in Lewis v Attorney-General of Jamaica [2001] 2 AC 50 (cf Lord Hoffmann at 88-90) when the Privy Council departed from a number of earlier decisions relating to the death penalty. Nor is it concerned with a major economic and social issue of the type involved in Aoraki where, moreover, the ratio of the earlier decision was difficult to determine, where the initial decision was given in the early days of the operation of new and significantly different employment legislation and where almost four years had passed since the giving of a decision which had been the subject of considerable comment, much of it critical. By contrast, on the last point, while the Casino Control Authority reported the result of the Wu decision to Parliament in its 2002 annual report, saying that the decision clarified the law, it made no comment one way or the other on the result (Report of the Casino Control Authority for the year ended 30 June 2002 AJHR G 20 p15). We were not referred to any comment critical of the decision from a social policy or any other viewpoint which would support an argument for change; and we would note that where a statute is involved any change may in any event have to be legislated We are not of course saying that critical comment will necessarily lead to review, but, as R v Shivpuri [1987] AC 1 shows, it is possible for a court to be persuaded by commentary, even in respect of a very recent decision, that it has made a serious error which has distorted the law and which accordingly should be reversed (see especially Lord Bridge at 23 where he refers to the force of the criticism by Professor Glanville Williams of a decision given only a year earlier).

  16. Can it be said, against that background, that when the public law elements are brought more clearly into focus the decision in Wu demands reconsideration? We do not think so. An examination of the wording of s 67 and the public law contentions, leads us to the conclusion that the issue is not even "a finely balanced" one (see Cooke P in para [10] above) where the Court should in any event be reluctant to reverse itself.

  17. We first consider the plain words of s 67 read in their statutory and wider context and with reference to their purpose. The 1990 Act authorised, if a licence were granted, an activity which previously would have been unlawful.

  18. One element of the new regime was the provision that wagering contracts relating to gaming in licensed casinos are to be enforceable in law (s6). That was an exception to the general rule that wagering contracts are unenforceable (Gaming and Lotteries Act 1977 s128). That general rule may be put in the context of English statutes from the time of Henry VIII which were part of New Zealand law until 1978 (some surviving longer in New Zealand than in the United Kingdom) and of New Zealand statutes from 1881 on (see RA Moodie Wagering and Gaming Contracts in New Zealand (PhD thesis Victoria University of Wellington 1976)).

  19. Under the new regime for casinos, applications for only two licences, one in each Island, were to be called for in the first instance (s26) and no further licences were to be granted in each Island within two years. Any further licence was not to be granted within the radius of 100 kilometres of the initial licence within five years after the initial licence (s 27). By the time of the events in issue in this case only six licences had been granted; the only other one in the North Island, in Hamilton, also operated by Sky City Casino Management, had not begun operating; and Parliament had placed a moratorium on the consideration of applications for further casino licences, now in force until 15 October 2003.

  20. The fact of state licensing under statute, the limits on the numbers of licences, and the possible analogy with other licensed activities, having the character of prime necessity, common calling or business affected with a public interest, may well have suggested to those responsible for preparing the legislation the need for a preemptive approach. That those various doctrines were by then well enough established in New Zealand law to be in the minds of those helping prepare the legislation appears, for instance, from the October 1986 Report of the Working Party on Liquor chaired by Sir George Laking. The Working Party proposed that there should be no longer a requirement to provide public bars (with the obligation to serve nearly everyone who wished to be served) and to be open throughout their licensing hours. "The original justification for these provisions, which had their origins in the common law concept of the ‘common inn’, [had] long since gone." To turn to his scholarly work, Professor Taggart’s valuable 1995 essay "Public Utilities and Public Law" in Philip A Joseph (ed) Essays on the Constitution 214 reviews the state of the law a little after 1990, but by reference to decisions of common law courts given over the preceding century or more, including New Zealand cases about rubbish collection (1924), water supply (1932, 1966 and 1985), electricity (1937 and 1955) and sewers (1975 where the argument failed); licensed public transport and, earlier, hotels were similarly subject to legislative requirements to provide services on reasonable terms.

  21. Against that background the preemptive approach found in s 67 is not at all surprising. That approach was also supported at the time of its enactment by the similar provision included in the Queensland statute which was drawn on in the preparation of the New Zealand measure (Casino Control Act 1982 s 92, a provision which, interestingly, was amended in 1997 to place an express reasonableness limit on the power to exclude; for other references to Australian legislation see also Report of the Committee of Inquiry into the establishment of Casinos in New Zealand (1989) paras 5, 14.2, 14.10.3 and app C). And the approach was justified after the event by the tentative view of two members of this Court in Wu (para [34]) tending to support the public interest characterisation.

  22. With or without that background, the language of s 67 provides a crystal clear answer to Mr. Jones’ argument. It first denies an actual or possible "entitle[ment] .... as against the holders of the .... licence[s]". That entitlement must be more than the common law implied licence we all have to enter commercial premises, open to the public, because that licence can be withdrawn at any time (in the absence, of course, of breach of the law, for instance, prohibiting discrimination). It appears to be that licence which is referred to as a "right" in s 64 which forbids a casino licenceholder from charging a person for the "right" to enter the casino or to play any game there. A more substantial entitlement or right ("as against the holder of the .... licence") is in contemplation; a right such as that attaching to prime necessities. But any such possible right is flatly denied by s 67.

  23. Next, in its second part, subs (1) states a major consequence of the common law property right of the occupiers not being subject to any such entitlement or even any argument that it exists: the casino owners and occupiers can withdraw the patron’s common law licence and require that person to leave.

  24. Once that has happened and a warning is given in terms of the Trespass Act 1982, then, as subs (2) of s 67 makes clear, the criminal law sanctions of that Act are available.

  25. The legislation is plain. It leaves no possible room for an argument that the casino has the character of a prime necessity, a common calling or a business affected with the public interest which qualifies the common law powers of the owner or occupier.

  26. But does a public law focus – to turn to the second matter mentioned in para [16] – make a difference?

  27. The public law argument, not put forward in Wu, was presented in two ways which may be seen as contradictory. The first is that no hard and fast line should be drawn between public and private law analyses of situations such as this. The real concern should be with abuse of power, with the absence of any other remedy, and with the characteristics of the business. The common law developments beginning with Sir Matthew Hale’s Treatise de Portibus Maris (written in about 1670 and first published in 1787 in Hargrave (ed) 1 Collection of Tracts relative to the Law of England 78) have identified a range of factors relevant to the characterisation of a business as a common calling, prime necessity or a business affected by a public interest. That argument adds nothing however to that already considered and rejected: even if the casino can be so characterised (a matter on which we express no view), the consequence of the characterisation in terms of the duty to provide the service on reasonable terms is denied by the plain words of s 67. The licensees of the casino have an unfettered power (subject to other enactments, such as the Human Rights Act) to exclude people from their premises.

  28. The second way of presenting the public law argument was to stress the distinct character of public law (or administrative law) and its remedies. Mr. Taggart emphasised both the substantive and other limits on power – the grounds of review – and the broad availability of remedies, under the Judicature Amendment Act 1972, the recently amended High Court Rules and the common law. The grounds contention runs directly into the plain meaning and effect of s 67. That provision excludes any possible limits of an administrative law character, including any reasonableness limit.

  29. Nor does the broad availability of remedies in administrative law assist Mr. Jones. It is the case that an important purpose and effect of the reforms of judicial review procedures since 1972 and of court decisions (such as those considered in Electoral Commission v Cameron [1997] 2 NZLR 421, 429-430) has been to remove technical problems which had earlier bedevilled applications for judicial review (see e.g. Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1, 11-12, a matter not in issue in the Privy Council, Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513, para [2]). Rather, primary attention should be given to the grounds – is a fair hearing required, what are the limits on the power, what (if any) are relevant and irrelevant factors or purposes, what (if any) is the role of reasonableness? Those, not technical issues about the appropriate remedy, are the questions at the heart of the review process.

  30. But, for the reasons already given in relation to s 67, no such ground can be made out in this case.

  31. It follows that no possible basis for upsetting Wu has been established.

  32. The appeal is accordingly dismissed. The respondents are entitled to costs of $7,500 and reasonable disbursements including travel and accommodation costs of two counsel, to be fixed by the Registrar in the absence of agreement.


Cases

Sky City Auckland Ltd v Wu [2002] 3 NZLR 621; Dahya v Dahya [1991] 2 NZLR 150; Collector of Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 404; Nguyen v Nguyen (1990) 169 CLR 245; Lewis v Attorney-General of Jamaica [2001] 2 AC 50; Aoraki Corporation v McGavin [1998] 3 NZLR 276; R v Shivpuri [1987] AC 1; Electoral Commission v Cameron [1997] 2 NZLR 421; Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1; Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513

Legislations

Casino Control Act 1990: s.67

Authors and other references

RA Moodie, " Wagering and Gaming Contracts in New Zealand", Victoria University of Wellington (1976) PhD thesis

October 1986 Report of the Working Party on Liquor chaired by Sir George Laking

Philip A Joseph (ed) Essays on the Constitution, "Public Utilities and Public Law" by Professor Taggart (1995)

Sir Matthew Hale’s Treatise de Portibus Maris

Hargrave (ed) 1 Collection of Tracts relative to the Law of England, 1787

Representations

Keegan Alexander, Auckland for the Appellant
Minter Ellison Rudd Watts, Auckland for the Respondents


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