Desmond v Reef Hotel Casino [2024] QCAT 61

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Desmond v Reef Hotel Casino [2024] QCAT 61 PARTIES: PAUL ROBERT DESMOND (applicant) v REEF HOTEL CASINO (respondent) APPLICATION NO: GAR394-22 MATTER TYPE: General administrative review matters DELIVERED ON: 7 February 2024 HEARING DATE: 7 February 2024 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDERS: The decision of the Reef Hotel Casino to give an exclusion direction to Paul Robert Desmond on 8 September 2022 is set aside. The tribunal substitutes a decision to not give an exclusion direction. CATCHWORDS: GAMING AND LIQUOR – ADMINISTRATION – CASINOS – CASINO OPERATIONS – where person gave television interview about gambling addiction – whether person a problem gambler Casino Control Act 1982 (Qld), s 93A George v Rockett [1990] HCA 26 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Introduction [1] A casino manager at the Reef Hotel Casino gave an exclusion direction to Mr Desmond on 8 September 2022. The direction prohibits Mr Desmond from entering the casino for five years. The direction was given under section 93A of the Casino Control Act 1982 (Qld) ('Casino Control Act’): 93A Exclusion direction for problem gambler (1) This section applies if a casino operator or a casino manager believes on reasonable grounds a person is a problem gambler. -- 1 of 9 -- 2 (2) The casino operator or casino manager may give the person a notice in the approved form (an exclusion direction) prohibiting the person from entering or remaining in the casino. … [2] ‘Problem gambler’ is defined in the Schedule to the Act: problem gambler means a person whose behaviour relating to gambling— (a) is characterised by difficulties in limiting the amount of money or time the person spends on gambling; and (b) leads to adverse consequences for the person, other persons or the community. [3] The information notice accompanying the direction gave the reason for the decision in very short terms: ‘due to your recent admission on national television, we believe on reasonable grounds that you may be a problem gambler’. [4] This was a reference to Mr Desmond’s appearance on a 60 Minutes segment about the Ville casino in August 2022. [5] Mr Desmond has applied to the tribunal for a review of the decision. The tribunal’s role is to produce the correct and preferable decision after a fresh hearing on the merits.1 The tribunal may confirm, amend or set aside the decision.2 Accordingly, I must decide whether I believe, on reasonable grounds, that Mr Desmond is a problem gambler as defined. If I do, I will need to decide whether the appropriate exercise of the discretion is to give an exclusion notice. That would require weighing up factors including whether any limitation on Mr Desmond’s rights, such as his right to associate with others, is reasonable and justified.3 The casino’s case [6] The reasons for decision given by the casino in the statement of reasons it filed in the tribunal are more extensive than in its information notice. They go beyond the issues canvassed in the 60 Minutes segment. It should be noted, however, that the casino is not confined in this review proceeding to its original reasons. [7] The casino notes that Mr Desmond was introduced in the 60 Minutes segment as a ‘controversial and colourful high roller’ and a ‘serious high roller and he had the lifestyle to prove it’.4 The following passage was noted: Interviewer: Paul, you’ve been to the very heights of high roller gambling. What’s that life like? Paul Desmond: It’s addictive, consuming, but you know, um, exciting. Unlimited rooms. Penthouses. Jets. Umm. Events. Logies. Arias. Anything they can give you or that they can get you to come into the casino, spend more money. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (’QCAT Act’), s 20. 2 Ibid, s 24(1). 3 Human Rights Act 2019 (Qld), ss 13, 22(2). 4 Casino’s statement of reasons, [13]. -- 2 of 9 -- 3 Interviewer: When you’re gambling huge amounts at the table, what is, what’s going through your head? What’s the … what’s the body feeling? Paul Desmond: Oh, it’s like a drug. It’s a rush. 100% rush. You get behind. You want to get your money back and they’ll … they’ll give you anything like to keep you there and keep you punting. Yeah. They have no switch. Off switch.5 [8] The interviewer said that Mr Desmond had spent millions at the Crown and Star casinos. [9] Other points made by the Reef in its statement of reasons include: (a) the casino became aware that Mr Desmond was on pain medication, at least sometimes; (b) he had mentioned to staff that he was receiving a disability payment from an insurer, referred to by Mr Desmond in his tribunal application as a disability support pension; (c) he had also mentioned that he was suing Star for $5m in losses, and he was suing the Ville for an injury he had sustained there; and (d) such factors indicated that he may be a vulnerable person on a limited income. [10] I note that the Reef’s record about the disability payment reads: ‘Receiving payment of $900 per week from his insurance of disability’.6 [11] The casino also says in its statement of reasons: Local law enforcement had advised of concerns in relation to Mr Desmond. This was relevant to whether Mr Desmond was a problem gambler as it may have indicated fund seeking behaviour associated with supporting problem gambling.7 [12] That is a reference to email correspondence between the casino and police in May 2022. The casino told police that Mr Desmond had come to the casino’s attention as a business disrupter. The police officer responded that from what they could see, Mr Desmond appears to be a fraudster. (I note that the basis for the police officer’s remark is not apparent. Nor did the casino explain why it considered Mr Desmond a business disrupter. From the context, it was presumably related to him having told casino staff that he was suing the Star and the Ville, and that he was giving evidence to a New South Wales enquiry investigating Star City). [13] The casino observes that Mr Desmond is excluded from Star casinos for ‘responsible gambling related issues’.8 I note, however, that the email referred to as the source of this information was from Crown, so perhaps the exclusion in question is from Crown rather than Star. No further details have been provided about the ground for that exclusion. [14] The Star also advised that it had banned Mr Desmond: 5 Casino’s statement of reasons, [13]. 6 Casino’s documents, 64. 7 Casino’s statement of reasons, [11(c)]. 8 Ibid, [11(d)]. -- 3 of 9 -- 4 This guy Paul Desmond is a mathematician and smart fellow. He has been trying to get his face on TV for ages always threatening the Star … we had to ask him to leave many times due to RG issues and finally we banned him.9 [15] Further, the casino says that ‘on at least one occasion at Reef, Mr Desmond had lost $3,400 and was “chasing all day”’.10 I note that while the casino has provided some information about Mr Desmond’s attendance, it has not provided a clear summary. It says he had only a few visits between 2008 and 2015, and then returned from May 2022. It has provided copies of database printouts that it provided to Mr Desmond at his request. Unfortunately, these are not accompanied by an explanation of terms for the column headings, such as ‘Drop’, ‘Th/Win’ and ‘Act Win’. On 6 August 2022, the figure for Mr Desmond’s ‘Act Win’ is -3400, so I infer that ‘Act Win’ means amount won (or lost). ‘Time/Pl’ presumably refers to time spent. [16] The casino points to comments made in a New South Wales parliamentary committee proceeding in 2000 about problems at a casino. A Member told the committee that a person called Alexander Preston had advised that Mr Desmond owed $500,000 in gambling debts, borrowed $50,000 from ‘loan sharks’,11 and disappeared because he was unable to repay. [17] The casino says that based on the various pieces of information available to it about Mr Desmond’s gambling history, current financial means, and so on, it reasonably believed that Mr Desmond was a problem gambler. [18] According to a Reef email, the Office of Liquor and Gaming Regulation wanted the Reef to consider excluding Mr Desmond after he made the ‘admission’ on national television and ‘from prior information they had’.12 No details of that information are given. [19] The casino also points to later events, summarised below. [20] When Reef staff told Mr Desmond of the exclusion, he was angry. He threatened to sue. He said Reef was being vindictive because of what happened in Townsville. He said he would contact media. [21] Mr Desmond texted a manager at Reef describing the exclusion decision as a huge mistake, and saying he would tell all and generate a lot of publicity. [22] On 12 September 2022 Mr Desmond requested from the casino access to all documents about him, citing Australian Privacy Principle 12 in Commonwealth legislation. [23] The casino says: Mr Desmond’s threats against the Reef (through legal and media challenges) are, in the Reef’s view, a further indication that Mr Desmond is a problem gambler.13 9 Casino’s documents, 90. 10 Casino’s statement of reasons, [11(e)]. 11 Casino’s documents, 79. 12 Ibid, 92. 13 Casino’s statement of reasons, [18]. -- 4 of 9 -- 5 Mr Desmond’s case [24] Mr Desmond denies that he is a problem gambler. He argues that the casino’s material attacks his character but does not establish that he is a problem gambler. He also denies that he is a business disrupter or a fraudster. He says that the comments he made on 60 Minutes about the high roller experience were ‘general in nature and not specific to me’.14 He also says that in the shooting for the segment he was asked similar questions multiple times, and only selected answers were shown on television. [25] He contends that the casino failed to afford him procedural fairness, and that it had an ulterior motive in making its decision. While those contentions would be relevant in a judicial review proceeding, they are not relevant in this administrative review proceeding. As I have mentioned, the tribunal is required to conduct its own hearing on the merits. [26] Mr Desmond submits: … between May and August 2022 when I was visiting The Reef Hotel Casino, I was a member of a small punters club. Each member of the punters club contributed into a kitty on a fortnightly basis from which we agreed how much each member could gamble, with winnings either returned to the kitty or used for further play. The arrangement with the punters club effectively acted as a pre-committed maximum limit to what I would gamble on any visit. I frequently gambled less than that amount and finished playing when I had taken a modest win. My play records also show that I had no difficulty limiting the time I spent gambling. The average time I spent playing blackjack was less than 2 hours and 45 minutes and for electronic games it was 32 minutes. All of my game play records show periods of play that are significantly less than time periods that would raise concerns of responsible gambling. There is also no evidence that my gambling behaviour has led to adverse consequences for myself, anyone else, or the community. Playing blackjack is a recreational and social outlet for me.15 [27] Mr Desmond has provided short statements from two persons who say they belong to the punters club. They talk about depositing $100 to $150 per fortnight each. Mr Desmond has not said whether this was the amount he would deposit. [28] Mr Desmond also refers to play period guidelines published by Crown. Those guidelines indicate that casino staff will check in on a patron after three hours of continuous play on an electronic game or six hours on a table game. After 12 hours of play within a 24-hour period, the Crown imposes a mandatory 24-hour break. After 48 hours played within a seven-day period, it imposes a mandatory seven-day break. Mr Desmond submits that the times he spent at the Reef generally fell well under these guidelines. He acknowledges on one occasion playing a table game for approximately eight hours. [29] In relation to the allegations made in in 2000, Mr Desmond says Alexander Preston’s claims were false. Mr Desmond has provided some pages of Hansard from the New South Wales Legislative Assembly for that year. These include comments by the 14 Mr Desmond’s statement dated 7 December 2022, [26]. 15 Mr Desmond’s submissions dated 8 May 2023. -- 5 of 9 -- 6 Minister for Gaming and Racing that Mr Desmond had not disappeared, as had been alleged, and that the Casino Surveillance Division had no adverse reports about him. The Minister went on to say that issues about Mr Desmond had only been raised by ‘a particular person who is well known to the honourable member’.16 [30] Mr Desmond says he was excluded from the Star in Sydney. He attributes this to raising concerns with that casino about some of its practices. He adds that he has not been excluded from Star casinos in Queensland. Discussion [31] I will begin with issues which should be afforded little or no weight, before addressing issues of more substance. [32] First, the allegations aired in the political arena in New South Wales in 2000 are old, vague, second-hand, and of dubious reliability. I afford them very little weight. [33] Second, a police officer termed Mr Desmond a fraudster, but no basis for this opinion is explained. I afford it no weight. Even if a persuasive basis for that opinion had been given, it would not obviously go to the question of whether Mr Desmond is a problem gambler. It could go to an alternative basis of exclusion, involving unlawful conduct,17 which was not relied on here. [34] Third, the description by a Reef manager of Mr Desmond as a business disrupter appears to relate to his propensity to sue casinos and perhaps his propensity to give evidence against them. Those things do not make him a problem gambler as defined. [35] On the other hand, I do accept that a propensity to sue, or for that matter to engage in fraud if that were demonstrated, could be relevant in painting a portrait of somebody desperate for funds to feed a gambling addiction. However, such propensity is of quite limited probative value because even wealthy people are sometimes known to sue for damages. [36] Fourth, I place very little weight on comments made by Mr Desmond after he was excluded. His reaction could be consistent with that of a gambling addict angry at being denied access to the only casino in the area. However, it could also be the reaction of a non-problem gambler resentful at being unfairly denied something they enjoy. [37] Fifth, I place little weight on the exclusion of Mr Desmond from other casinos, in the absence of details for the reason or reasons. ‘Responsible gambling issues’ may or may not have involved issues of present relevance. [38] The more substantive issues relate to Mr Desmond’s comments on 60 Minutes, his gambling behaviour at the Reef, and his means. [39] Mr Desmond submits that the tribunal’s decision should be based on his gambling behaviour at the Reef. I consider that evidence relevant, though attention should not be confined to that evidence. [40] As I have mentioned, I do not have the benefit of a clear and full explanation from the Reef of its gambling records. It relies on the $3,400 loss on one day. I would have 16 Hansard, 7 June 2000, 6765. 17 Casino Control Act 1982 (Qld), s 92(3)(c). -- 6 of 9 -- 7 expected a more thorough discussion of the records if the Reef were suggesting they show a concerning pattern of time or expenditure beyond that one day mentioned. [41] Mr Desmond’s description of the records seems reasonable. [42] As I have mentioned, the $3,400 loss was on 6 August 2022, as I understand the records. The surrounding records for that week appear to show attendance on each of 2, 3, 4, 5 and 6 August; a loss of $500 on 2 August; and wins totalling $3,100 across the three other days. Assuming ‘Time/Pl’ shows time spent, this ranged between one and six hours per day. Similar records for four days in May 2022 show more wins than losses. For the period 16 to 22 August 2022, the records appear to show attendance on four days; wins totalling $1,200; losses totalling $4,900; and time spent ranging from half an hour to seven hours per day. This is not an exhaustive description of the records. [43] Overall, the scale of gambling seems to be rather more than one might expect of a member of a small punters club as portrayed by Mr Desmond. However, it is by no means in the high roller league. [44] I do not accept Mr Desmond’s contention that his remarks on 60 Minutes related to high rollers generally rather than specifically to him. Even allowing for editing, it is apparent that he was conveying his own experiences as a high roller. His remarks suggest addiction. [45] However, it should be noted that in several places in the interview, the interviewer used the past tense when referring to Mr Desmond being a high roller. For example, after the ‘off switch’ comment, quoted earlier, the interviewer said ‘and, for a while, neither did Paul’. This suggests that addiction was a problem in Mr Desmond’s past. [46] The Reef does not suggest that Mr Desmond has been a high roller at the Reef, or that they treated him like one. [47] In relation to Mr Desmond’s means, I accept that, as per casino records, he told a staff member that he was receiving $900 per week in disability insurance. In later correspondence with the casino, he referred to receiving a ‘disability-pension while waiting for my TPD claim to come through’.18 In his tribunal application, Mr Desmond refers to receiving a ‘disability support pension’. [48] The differences between a disability insurance payment and a disability support pension are potentially significant. A person might receive a disability insurance payment whether they are wealthy or poor. ‘Disability support pension’ usually refers to the Centrelink means-tested pension. The income and assets tests applying for the disability support pension are arguably generous: for example, according to the Services Australia website, a single non-homeowner can have $543,750 in assets and still receive a full pension. (I do not know if Mr Desmond is single or whether he is a non-homeowner; the example is merely indicative). Nonetheless, it can be assumed that a person receiving a disability support pension is not a wealthy person by community standards and is someone who should probably watch their expenditure. Having said that, a disability support pensioner might be expecting a large payout, for example from an insurer or from a defendant in civil litigation. 18 Casino’s documents, 94. -- 7 of 9 -- 8 [49] Mr Desmond has not clarified whether he receives a disability insurance payment or a Centrelink disability support pension. Judging from the stated amount of $900 per week, it is probably not the Centrelink disability support pension. The maximum rate of that pension, according to the Services Australia website, is just under $1,100 per fortnight. [50] Mr Desmond could have provided evidence to the tribunal about his means including his assets. He was not obliged to do so, but his failure to do so does nothing to dispel any suspicion or belief that arises from the known facts. [51] Section 93A of the Casino Control Act turns on whether the decision-maker believes on reasonable grounds that the person in question is a problem gambler. ‘Believes on reasonable grounds’ is stronger than the terms ‘suspects’ or ‘reasonably suspects’ used elsewhere in the Act.19 The High Court discussed suspicion, belief, and proof in George v Rockett.20 In essence, suspicion involves more than idle wondering. It involves an apprehension or mistrust, although without sufficient evidence to prove the proposition. Belief involves more: an inclination of the mind to accepting rather than rejecting the proposition. However, it does not demand actual proof on the balance of probabilities: ‘the assent of belief is given on more slender evidence than proof’.21 [52] Considering the evidence as a whole in this case, in my view it at most gives rise to suspicion that Mr Desmond is a problem gambler. He was a frequent patron at the casino; he must have been spending a substantial amount on occasions; he claimed to have been a high roller in the past and to have experienced addiction; and he may have been on a means-tested payment namely the disability support pension in 2022. He is said to have been ‘chasing all day’ on the occasion he lost $3,400. [53] On the other hand, it does not appear that he was spending long periods at the casino day after day. It is doubtful that disability support pension was the correct description. There is no clear evidence that his gambling behaviour at the time of the exclusion was characterised by difficulties in limiting the amount of money or time he spent on gambling. There is no direct evidence of his gambling behaviour causing adverse consequences for himself, other persons, or the community around the time of the exclusion decision. This is not to suggest that clear and direct evidence is necessarily required, or that proof on the balance of probabilities that a person is a problem gambler is required. A combination of circumstances and inferences may be enough to give rise to a belief on reasonable grounds. [54] I suspect that Mr Desmond may be a problem gambler, but I cannot say that I believe that he is. Accordingly, the correct and preferable decision is to set aside the reviewable decision and to substitute a decision to not give an exclusion direction. [55] Incidentally, it is perhaps worth noting that the exclusion direction was explained in the information notice in a way more suggestive of suspicion than belief: ‘… we believe on reasonable grounds that you may be a problem gambler’. What is required to justify an exclusion direction is not belief that the person may be a problem gambler, but belief that the person is a problem gambler. 19 For example s 87A(1)(b). 20 [1990] HCA 26. 21 Ibid, [14]. -- 8 of 9 -- 9 Conclusion [56] The reviewable decision is set aside. -- 9 of 9 --