Reported Decision : 53 NSWLR 98 New South Wales Court of Appeal CITATION : RIXON v STAR CITY PTY LTD [2001] NSWCA 265 FILE NUMBER(S) : CA 40478/00 HEARING DATE(S) : 6 August 2001 JUDGMENT DATE : 28 September 2001 PARTIES : Brian Rixon - Appellant Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) - Respondent JUDGMENT OF : Priestley JA at 1; Sheller JA at 2; Heydon JA at 61 LOWER COURT JURISDICTION : District Court LOWER COURT 7821/98 FILE NUMBER(S) : LOWER COURT Balla ADCJ JUDICIAL OFFICER : K J Ryan - Appellant COUNSEL : M T McCulloch - Respondent SOLICITORS : Leitch Hasson Dent - Appellant Cutler Hughes & Harris - Respondent CATCHWORDS : TORT - assault and battery - false imprisonment - wrongful arrest - detention of excluded person in casino - whether detention authorised by statute. Casino Control Act 1992 LEGISLATION CITED : Casino Control Regulation 1995 Interpretation Act 1987 Evidence Act 1995 Vines v Djordjevitch (1995) 91 CLR 512 Morton v Union Steamship Company of New Zealand Limited (1951) 83 CLR 402 Re Bolton (1987) 162 CLR 514 CASES CITED: Compafina Bank v Australia and New Zealand Banking Group Limited [1982] 1 NSWLR 409 Cole v Turner (1704) 6 Mod 149; 87 ER 907 In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 Collins v Wilcock [1984] 1 WLR 1172 Hall v Fonceca [1983] WAR 309 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40478/00 DC 7821/98 PRIESTLEY JA SHELLER JA HEYDON JA Friday, 28 September 2001 RIXON v STAR CITY PTY LIMITED (formerly SYDNEY HARBOUR CASINO PTY LIMITED) The appellant sued the respondent to recover damages for unlawful arrest, assault and false imprisonment. In June 1996, the appellant had been made the subject of an exclusion order issued under s79 of the Casino Control Act 1992. On 25 November 1996, an employee of the respondent approached the appellant in the casino and informed him that, as an excluded person, he was required to follow him to an interview room. The appellant was held in this room for approximately an hour and a half before police arrived, during which time he claimed he suffered stress and anxiety. Section 84 of the Act provided that a person the subject of an exclusion order must not enter the casino. Section 88(2) enabled a casino employee to detain a person who was in contravention of a prescribed provision. Clause 23 of the Casino Control Regulation 1995 prescribed s84 for this purpose. Section 85 provided for the removal of excluded persons from the casino. Section 88(1) enabled an inspector to detain a person suspected of contravening "a provision of this…Act". The trial Judge found that the employee's actions could not amount to an assault because he lacked the requisite intention, or to a battery because he lacked the requisite hostile attitude. The actions for false imprisonment and unlawful arrest failed as the respondent acted within the scope of its legislatively conferred power in detaining the appellant. The appellant challenged this decision on a number of grounds. Held : per Sheller JA, Priestley and Heydon JJA agreeing: 1. Clause 23(a) of the Regulation was not inconsistent with the Act. Although s85 provided for the removal of designated persons, and the regulation provided for their detention, s88(1) of the Act showed that detention and removal were not inconsistent in the scheme of the Act. 2. The fact that s85(2) refers to a person who "knows", and that s88 refers to a person who "suspects on reasonable grounds" that an excluded person is in the casino is of little significance. It is highly unlikely that the legislative intent was to require a different state of mind on the part of casino employees in relation to detaining persons on the one hand, and removing them on the other. 3. The detention of the appellant was reasonable in the circumstances, and the Act clearly overrides any common law rights of personal liberty which might otherwise have made the detention wrongful. 4. The exclusion order was valid, as the person who issued it was duly authorised to do so. 5. There was no battery by the casino employee because the evidence suggested that his conduct was for the purpose of engaging the appellant's intention, and was generally acceptable in the ordinary conduct of daily life. 6. It was open to the trial Judge to conclude that there was no assault because the respondent's employee did not possess the necessary intention to create in the appellant an apprehension of imminent harmful conduct. ORDERS Appeal dismissed with costs. ********* IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40478/00 DC 7821/98 PRIESTLEY JA SHELLER JA HEYDON JA Friday, 28 September 2001 RIXON v STAR CITY PTY LIMITED (formerly SYDNEY HARBOUR CASINO PTY LIMITED) Judgment 1 PRIESTLEY JA: I agree with Sheller JA. 2 SHELLER JA: Introduction On 13 June 1996 Sydney Harbour Casino Pty Limited (SHC), which has since become Star City Pty Limited (SCPL), purported, pursuant to s79 of the Casino Control Act 1992 (the Act), to give an exclusion order to the appellant, Brian Rixon. "Exclusion order" was defined in s3(1) of the Act as meaning a written order under s79 prohibiting a person from entering, or remaining in, a casino. Section 79 of the Act provided, so far as presently relevant, as follows: "(1) The Director or the casino operator or the person for the time being in charge of the casino may, by order given to a person verbally or in writing, prohibit the person from entering or remaining in a casino." The exclusion order was signed and given to Mr Rixon by John Bell, a security shift manager, employed by SHC. 3 "Casino" was defined in s3(1) of the Act to mean premises, or part of premises, defined as a casino for the time being under s19 of the Act. Section 19(1) of the Act provided for the boundaries of a casino to be defined "initially" by being specified in the casino licence, and enabled the New South Wales Casino Control Authority (the Authority) constituted under the Act to re-define the boundaries from time to time. The casino licence granted by the Authority to SHC on 14 December 1994 defined "casino" to mean for the Temporary Period, (that is to say that part of the period of licence before the Lease Commencement Date for the Permanent Site), as that part of the temporary site enclosed by the boundaries specified in Schedule 1. At the relevant time the casino premises were the temporary casino premises within the boundaries so specified. I shall refer to them as the "casino premises". 4 On 25 November 1996 Mr Rixon was playing roulette in the casino premises. Employees of SHC identified Mr Rixon as a person the subject of an exclusion order, approached him and accompanied him to an "interview room" where he remained for a period of approximately one and a half hours until police officers arrived. Ultimately, Mr Rixon was escorted by police from the interview room elsewhere to be charged. District Court Proceedings 5 Mr Rixon sued SCPL in the District Court to recover damages for alleged unlawful arrest, assault and false imprisonment. Mr Rixon claimed compensatory, exemplary, aggravated and punitive damages with interest. On 30 May 2000 her Honour Acting Judge Balla dismissed the proceedings. Mr Rixon by leave of the Court appeals from that decision. Relevant legislation 6 Section 77(1) of the Act provided that a person enters and remains in casino premises "only by licence of the casino operator" with exceptions not here material. The following sections of the Act are significant in considering this appeal: "Excluded person not to enter casino 84. A person the subject of an exclusion order must not enter or remain in a casino to which the order relates. Maximum penalty: 20 penalty units. Removal of excluded persons from casino 85. (1) This section applies to the following persons in a casino: (a) the person for the time being in charge of the casino; (b) an agent of the casino operator; (c) a casino employee. (2) A person to whom this section applies who knows that a person the subject of an exclusion order is in the casino, must remove the person from the casino or cause the person to be removed from the casino. Maximum penalty: 20 penalty units. (3) It is lawful for a person to whom this section applies, using no more force than is reasonable in the circumstances: (a) to prevent a person the subject of an exclusion order from entering the casino; and (b) to remove such a person from the casino or cause such a person to be removed from the casino. …… Cheating 87. (1) A person must not, in a casino: (a) by a fraudulent trick, device, sleight of hand or representation; or (b) by a fraudulent scheme or practice; or (c) by the fraudulent use of gaming equipment or any other thing; or (d) by the fraudulent use of an instrument or article of a type normally used in connection with gaming, or appearing to be of a type normally used in connection with gaming, obtain for himself or herself or another person, or induce a person to deliver, give or credit to him or her or another person, any money, chips, benefit, advantage, valuable consideration or security. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. (2) A person must not, in a casino, use any device for the purpose of enabling the person or some other person to count or otherwise record cards dealt in the course of gaming in the casino unless the casino operator approves of its use. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. (3) A person must not, in a casino or on premises of which a casino forms part, use or have in his or her possession: (a) chips that he or she knows are bogus, counterfeit or stolen (within the meaning of sections 188, 189 and 189A of the Crimes Act 1900); or (b) cards, dice or coins that he or she knows have been marked, loaded or tampered with; or (c) for the purpose of cheating or stealing - any equipment, device or thing that permits or facilitates cheating or stealing. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. (4) Subsection (3) does not prohibit the possession in a casino of any thing referred to in subsection (3) (a) or (b) by a person in charge of the casino, an agent of the casino operator, a casino employee, an inspector or a police officer, if that thing has been seized by any of those persons from another person for use as evidence in proceedings for an offence. Detention of suspected person 88. (1) An inspector who suspects on reasonable grounds that a person in a casino has contravened, is contravening or is attempting to contravene a provision of this or any other Act may detain the suspected person in a suitable place in or near the casino until the arrival at the place of detention of a police officer. (2) Any other person who is: (a) for the time being in charge of a casino; or (b) an agent of the casino operator; or (c) a casino employee, and who suspects on reasonable grounds that a person in the casino has contravened, is contravening or is attempting to contravene section 87 (Cheating) or a prescribed provision of this Act may detain the suspected person in a suitable place in or near the casino until the arrival at the place of detention of a police officer. (3) A person may not be detained under this section unless: (a) no more force is used than is proper in the circumstances; and (b) the person detained is informed of the reasons for the detention; and (c) the person effecting the detention immediately notifies a police officer of the detention and the reasons for the detention; and (d) the person detained is detained for no longer than is reasonable to enable a police officer to attend." 7 "Inspector" was defined by s3(1) of the Act to mean a person appointed by the Director of Casino Surveillance holding office as such under s102 to be an inspector for the purposes of the Act: see s106. An inspector might at any time enter and remain on the casino premises for various supervisory purposes: s108. The functions of inspectors were set out in s109 and their duties and powers in s110 and s111. These did not include removing persons from the casino premises. An inspector was not one of the persons to whom in that capacity s85 applied. 8 In summary s88(1) enabled an inspector who suspected on reasonable grounds that a person in a casino had contravened or was attempting to contravene a provision of the Act to detain the suspected person in a suitable place in or near the casino until the arrival at the place of detention of a police officer. Section 88(2) gave more limited power to persons who were either for the time being in charge of the casino or an agent of the casino operator or a casino employee. They might detain persons on such grounds only where the contravention or attempted contravention was of s87 (cheating) or a prescribed provision of the Act. Neither Sir Laurence Street's Report into the Establishment and Operation of Legal Casinos in New South Wales, nor the explanatory notes to the Act nor the Second Reading Speech explained the scheme of these subsections. 9 Clause 23 of the Casino Control Regulation 1995 (the Regulation) headed "Detention of suspected person for certain offences" provided that for the purposes of s88(2) of the Act, "the following provisions of the Act are prescribed: (a) section 84 (Excluded person not to enter casino),…" 10 Section 170 of the Act provided: "(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, regulations may be made for or with respect to any matter specified in Schedule 3. (3) A provision of a regulation may: (a) impose a penalty not exceeding 100 penalty units for a contravention of the provision; and (b) provide that a contravention of the provision by a casino operator is to be considered to be a contravention of the conditions of the operator's casino licence." 11 Schedule 3 specified in twelve numbered paragraphs matters such as the installations, devices and equipment to be provided in a casino for gaming, advertising relating to a casino, notices to be displayed in a casino with respect to the availability of counselling and the form of contracts for the supply of goods or services to a casino. None related to the subject matter of clause 23(a) of the Regulation. Mr Rixon's case at trial 12 Mr Rixon was given the exclusion order as a consequence of an incident which occurred on the casino premises on 13 June 1996. He claimed that on that occasion he was thrown to the floor and put in leg and arm locks with his face on the carpet. According to a statement made by an attending police officer, a SHC employee had told Mr Rixon, when he was taken to the interview room, that he would be issued with an exclusion order and that he was prohibited from entering the casino while the order remained in force. The employee also explained to Mr Rixon the circumstances in which he could obtain a revocation of the order. Mr Rixon was arrested by the police and charged with assault. The charges were dismissed in the Local Court one or two months later. 13 According to Mr Rixon on 25 November 1996 he was playing roulette when someone grabbed him on the shoulder, said "Are you Brian Rixon?" and spun him around. Mr Rixon said he felt pain in his neck. He responded "Yes I'm Brian Rixon." The other person said "Are you aware that you are an excluded person?" Mr Rixon said "No." The other person then asked him to come with him. Mr Rixon said that if he was an excluded person, after going to court when the case against him was dismissed, he would leave. The other person requested him to go to the interview room. Mr Rixon went without the use of any physical force but in the belief that if he had not gone he would have been taken. At the trial there was no attempt, so far as appears, to lead evidence about the location of the interview room and in particular whether it was within the casino premises as specified in the licence. The parties seemed to assume that it was. Certainly s88(1) contemplated that the suspected person might be detained in the casino. 14 Mr Rixon said he asked to make a telephone call to his solicitor. This was refused. He said he felt nervous and was sweating and clammy. He asked to leave and was told he should not try. He then asked whether the SHC employee was going to smash him to the floor. According to Mr Rixon the employee smiled. He claimed that he was refused permission to go to the toilet on three or four occasions but was allowed to go after forty-five minutes. When he returned he asked to see a doctor. He informed the SHC employees present he had experienced unstable angina since the June incident and was experiencing those symptoms. Some time later a nurse arrived. Mr Rixon claimed to be feeling severely stressed and nervous with a heavy feeling around his chest. 15 When the police arrived Mr Rixon made a statement which was recorded in a notebook he signed. He told Detective Senior Constable Lee that he believed that he could return to the casino as the police charge had been dismissed. About the approach the SHC employee made to Mr Rixon in the casino the entry in the notebook read "When approached by casino staff to accompany them I willingly did so which can be verified by video tape of tonight's incident." Mr Rixon was taken to the police station and charged. The charges were heard in the Local Court in February 1997. Other evidence 16 Other witnesses were called. Mr Ross Perry, an inspector employed by the Department of Gaming and Racing, was stationed at the casino in November 1996. He said that on 25 November he recognised Mr Rixon and contacted the surveillance department by telephone to confirm his identity. Mr Perry advised the person to whom he spoke that he believed a patron who had been excluded was gaming at a table. He gave the location of the patron by reference to the "table number, pit number". He met Sasha Sheldon, an SHC employee, at the table and spoke to him. Shortly afterwards he saw Mr Sheldon speak to Mr Rixon and they both moved away to the interview room. He did not see Mr Sheldon touch Mr Rixon though he conceded in cross-examination that there was a point of time when Mr Sheldon was approaching Mr Rixon at the table and was standing between him and Mr Rixon. At that time he may not have been able to see what was happening to Mr Rixon. He did not see Mr Sheldon move his arm. 17 Mr Perry made notes of the incident and prepared a report which did not mention Mr Sheldon touching Mr Rixon or Mr Rixon complaining of any injury. Detectives Warren Lee and Robert Duncan from Gaming and Vice were contacted and attended at 21.55. 18 Mr Alison was the SHC surveillance director in November 1996. The evidence was that cameras were stationed throughout the casino premises, some in fixed positions and some adjustable. One camera was over each gaming table. SHC employees monitored the cameras in the monitor room. The procedure required an operator who monitored any incident which could be a security risk to complete a surveillance incident report. A video was extracted from the system if it was considered that it would be needed for the defence of the casino. A video of the incident in November 1996 had been made but could not be located. Mr Alison gave evidence that "one year ago" he ordered the destruction of all of the tapes made in the temporary casino. He said he believed there were no cases pending but agreed, on cross-examination, that he had not consulted anyone before making the decision and had not checked with the legal department. 19 Mr Alison had retained a short video of Mr Rixon in the interview room. He said it was standard procedure to make a thirty second film to show that a person had entered the casino in breach of an exclusion order. A copy of that video was sent to Mr Rixon's solicitor by letter dated 28 January 1999. By letter in reply dated 5 February 1999 Mr Rixon's solicitor inquired whether there was any other video of Mr Rixon. Mr Perry said that he had separate access to the cameras and took film independently of SHC. However, the film of Mr Rixon on that evening had not been retained. Mr Perry said that films were re-cycled after seven days unless they showed an incident of some note. He did not consider the entry of an excluded person to be an incident of some note. 20 Ms Kingston was a nurse employed by SHC at the casino in November 1996. She was called to attend Mr Rixon and her records were tendered. In the section headed "Injury" she recorded "General observations". There was no mention of any injury to Mr Rixon's neck. She took his blood pressure and pulse. 21 An incident report by T Brackenreg showed that security was first notified by Mr Perry of Mr Rixon's presence in the casino at 20.29, Mr Rixon was approached by Mr Ross and Mr Sheldon at 20.34 and escorted "without force" to the interview room. Mr Rixon was escorted to the toilet at 21.49 and attended by Ms Kingston at 21.52. The police arrived at 21.57. An incident report completed by B London described Mr Rixon as leaving to attend the toilet at 21.46 and returning at 21.52 at which time a medic had been called as Mr Rixon was feeling chest pain. 22 Mr Sheldon did not give evidence. SHC tendered material designed to demonstrate that it had been unable to find Mr Sheldon and bring him to court. Mr Sheldon completed an incident report in which he stated: "At 20.30 HRS I was contacted by Government Inspector Ross [sic no doubt a reference to Ross Perry] in regards to an excluded person who was inside the casino. I liased with Government Inspector Ross [sic] at pit three where he pointed out to me a male who was purchasing cigarettes from the cigarette machine near the southern entrance. The Government Inspector assured me that he and surveillance where [sic] definate [sic] that the male was excluded so I approached the male on the eastern side of pit four and invited him to interview room two to speak about the matter. The male now known to me as Bryan [sic] Rixon entered the interview room at 20.35 hours." Acting Judge Balla's findings 23 The trial Judge found as follows: "The plaintiff claims that he was grabbed on the shoulder by Sasha Sheldon and spun around. Counsel for the defendant has submitted that this evidence should be rejected as it is not mentioned in any of the contemporaneous incident reports or the statement made by the plaintiff to the attending police officer and is denied by Mr Perry. I accept the evidence of the plaintiff in relation to the manner in which he was approached by Sasha Sheldon, that is that he placed his hand on the plaintiff's shoulder. I am satisfied that the plaintiff gave his evidence to the best of his recollection and made appropriate concessions in relation to the histories which he gave the various doctors. Mr Perry did concede that there was a point at which he would not have seen whether Sasha Sheldon did touch the plaintiff and I do not accept that the short summaries set out in the defendant's internal records contain an exhaustive description which would necessarily include a gesture to attract the plaintiff's attention. In relation to the failure to call Sasha Sheldon I accept the submission made by counsel for the plaintiff that he could be described as being, in a broad sense, in the defendant's camp being its former employee and the person whom the plaintiff says touched him on the shoulder. I do not think that the perfunctory attempts to locate him amount to a sufficient explanation for the failure to call him and I infer that his evidence would not have assisted the defendant. I accordingly find, taking all of these matters into account, that Sasha Sheldon placed his hand on the plaintiff's shoulder. I am not satisfied however that Sasha Sheldon used any degree of force or caused any injury to the plaintiff's neck or shoulder when he put his hand on the plaintiff's shoulder while standing at the roulette table. In making this finding I have taken into account the plaintiff's failure to mention any injury or force to the attending police officer, the nurse at the casino or to his treating doctors. I also accept the plaintiff's evidence as to the events which took place in the interview room after he was taken there up until he left. The defendant denied that the incident at the roulette wheel amounted to battery and claimed that each of the causes of action relied on by the plaintiff were overridden by the provisions of the Casino Control Act 1992. Counsel for the defendant did not dispute that the provisions of the legislation overrode the common law, but submitted that they did not apply." 24 Acting Judge Balla held that the exclusion order was valid and that SHC acted within the scope of the legislation in detaining Mr Rixon so that the claims for unlawful arrest and false imprisonment failed. 25 The trial Judge found that Mr Sheldon placed his hand on Mr Rixon's shoulder without using any degree of force or causing any injury to Mr Rixon's neck or shoulder. However, she did not accept that Mr Sheldon's actions could be said to be an assault or battery because they lacked "the requisite intention in relation to assault and the requisite anger or hostile attitude in relation to battery." Grounds of appeal 26 The grounds of Mr Rixon's appeal were that the trial Judge erred in law in holding that the exclusion order given to Mr Rixon was valid, and that s88 of the Act gave SHC the power to detain Mr Rixon for breach of s84 of the Act (grounds 1 and 2) and in failing to hold that clause 23(a) of the Regulation was ultra vires (ground 3). Mr Rixon also claimed that the trial Judge erred in holding that Mr Sheldon's physical contact with Mr Rixon did not in the circumstances amount to assault and ought to have held that Mr Rixon was assaulted, unlawfully arrested and falsely imprisoned by SHC (grounds 4 and 5). Finally Mr Rixon claimed that there was no evidence or insufficient evidence on which to base a finding that an agent or employee of SHC had reasonable grounds for suspicion that Mr Rixon had contravened s84 of the Act (ground 6). Detention 27 Mr Rixon's case was that his arrest was unlawful and his imprisonment false (that is wrongful) because it was without any lawful justification at all or became unlawful in the way Mr Rixon was detained or subsequently treated. SCPL relied upon clause 23 of the Regulation to enable its agent or employee to detain Mr Rixon "in a suitable place in or near the casino until the arrival at the place of detention of a police officer" on suspicion of contravening s84. 28 Acting Judge Balla rejected Mr Rixon's submission put in various ways that clause 23(a) of the Regulation was invalid with the result that his detention was to an unlawful arrest and false imprisonment. The grounds that, according her Honour, Mr Rixon relied on were: · that s88 could apply only to the removal of patrons for cheating or a similar activity. Entering the casino premises as an excluded person was not such an activity; · that clause 23(a) of the Regulation was inconsistent with the Act and was not made for or with respect to any matter by the Act required or permitted to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act or, in particular, made for or with respect to any matter specified in Schedule 3. Accordingly it fell outside the Governor's regulation making power under s170 of the Act. Mr Rixon submitted that before the personal liberty of a subject could be infringed there must be a clear unambiguous statutory power. Acting Judge Balla was of the view that the legislation, first by providing that a visitor enters by way of a licence and next by providing lengthy and detailed procedures for the removal and detention of entrants, sufficiently demonstrated an intention to abrogate personal freedoms and common law rights; · Mr Rixon also relied on s32(1) of the Interpretation Act 1987 to submit that s170(2) qualified s170(1) to make the list of matters set out in Schedule 3 exhaustive. This submission, too, her Honour rejected. 29 On the application for leave to appeal from the District Court decision Senior Counsel for Mr Rixon put the matter differently. The alleged regulatory repugnancy stemmed from the legislative command in s85(2) that any of the person in charge of the casino, the agent of the casino operator or the casino employee who knew that a person, the subject of an exclusion order, was in the casino premises "must remove the person from the casino or cause the person to be removed from the casino." As a matter of interest the subsection was amended in 2000 to provide that such person "must, as soon as practicable after it becomes known to the person that a person the subject of an exclusion order ….. is in the casino, notify an inspector, and then remove the person, or cause the person to be removed, from the casino." 30 Counsel submitted that the command in s85(2) that the person the subject of an exclusion order be removed from the casino premises, was inconsistent with clause 23(a) of the Regulation which, by prescribing s84, enabled the persons, namely the person for the time being in charge of the casino, the agent of the casino operator or a casino employee, if that person suspected on reasonable grounds that a person in the casino had contravened s84, to detain, pursuant to s88(2), the suspected person in a suitable place in the casino until the arrival at the place of detention of a police officer. The importance of the matter both for the administration of the Act and the nature of the powers given to detain led the Court to grant leave to appeal. 31 The conditions upon which s85(2) and s88(1) and (2) operated are different. Section 85(2) imposed upon a person to whom the section applied "who knows that a person the subject of an exclusion order is in the casino" the obligation or duty to remove that person from the casino. Section 88 empowered an inspector (subs(1)) or the persons designated in subs(2) "who suspects on reasonable grounds that a person in the casino has contravened certain provisions of the Act" to detain the suspected person. In the one case the condition for the imposition of the obligation or duty is knowing, in the other case, the condition of the grant of power is suspecting on reasonable grounds. 32 The difference raises a question whether the two sections should be read as exclusive of each other. If the designated person "knows", removal is required. If the designated person "suspects on reasonable grounds", there is a power to detain but the obligation or for that matter power to remove does not arise. Thus, so it might be said, if a casino employee knew that Mr Rixon was the subject of an exclusion order the employee was bound to remove him from the casino but if the employee merely suspected on reasonable grounds that, contrary to s84, he had entered or remained in the casino he could detain him but not remove him. Neither party made submissions which adverted to or relied upon this difference in language. 33 In a dictionary sense, "know" means to perceive or understand as fact or truth or apprehend with clearness and certainty whereas "suspect" combined with the phrase "on reasonable grounds" means to believe. The distinction is clouded by the concepts in law of actual and constructive knowledge. In the present case, the knowledge required by s85(2) seems to combine a knowledge that a particular person is in the casino and that that person is the subject of an exclusion order. 34 In Vines v Djordjevitch (1955) 91 CLR 512 at 522 the High Court said: "The word 'know' is used in the provision in an ordinary sense, without any intention that it should be analysed or refined upon. But of course there are gradations of knowledge or belief upon such a matter. The gradations extend from a slight inclination of opinion to complete assurance." The provision in that case concerned the knowledge of a person injured by a motor car that the identity of the motor car could not be established. 35 In my opinion, it is highly unlikely that the legislature intended that a casino employee, before acting to detain a person in the casino or remove that person from the casino, had to determine where his or her awareness or consciousness lay on the gradations between knowledge and suspicion. Perhaps carelessly the legislature has used different words without sufficient attention to the difference. As I have said, neither party relied upon the difference. In my opinion, it does not in itself result in there being no power in a person designated in s88(2) to detain a person in the casino because he or she "knew" that the person to be detained for contravening s84 was the subject of an exclusion order. 36 Mr Rixon submitted that clause 23(a) of the Regulation was repugnant to the Act and particularly s85(2). On the one hand the Regulation enabled the designated persons to detain an excluded person in the casino premises, on the other s85(2) required that such designated persons remove the excluded person from the premises. The Governor's power under s170(1) of the Act was confined to making regulations "not inconsistent with" the Act. It was submitted that clause 23(a) of the Regulation was inconsistent with the Act. Accordingly, it should be regarded as varying or departing from the positive provisions made by the Act. 37 In Morton v Union Steamship Company of New Zealand Limited (1951) 83 CLR 402 the High Court was concerned with a statutory power to make regulations not inconsistent with the Excise Act 1901-1949 "prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to the Excise". At 410 the Court said: "A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself." It was argued, that clause 23(a) of the Regulation departed from the positive provisions of the Act and, because it was inconsistent with the Act, went outside the field of operation which s170(1) marked out. 38 Section 85(2) required the person to whom the section applied, relevantly the SHC's agent or employee, to remove the person from the casino premises or cause the person to be removed from the casino premises under penalty. While the subsection did not expressly require immediate removal of the person subject to an exclusion order it did not contemplate the designated SHC employee permitting the excluded person to remain or preventing the excluded person from leaving the casino premises. The Act did not condition the command to remove so as, in particular circumstances, to allow the SHC employee to detain that person within the casino premises, that is to say, to refuse to let that person leave the casino premises. 39 If s88(2) of the Act alone was the source of power to detain persons suspected of contravening provisions of the Act, these arguments would have considerable force. But it is not the sole source of such power. Section 88(1) enabled an inspector to detain in the casino premises a person suspected of contravening "a provision of this or any other Act." 40 The clear language of s88(1) cannot, in my opinion, be read down to mean "contravene a provision, other than s84, of this Act". Thus s88(1) enabled an inspector who suspected that a person in the casino premises was the subject of an exclusion order to detain that person in the casino premises until the arrival at the place of detention of a police officer. 41 If an inspector detained a person in the casino premises on the reasonable suspicion that that person was the subject of an exclusion order, the execution by any of the persons designated in s85(2) of the Act of the duty to remove that person from the casino premises was necessarily postponed. The inspector was under no such duty to remove the person. However, even if he had been, the execution of the duty to remove would necessarily have been postponed during the period of detention. A degree of contradiction could accordingly be found between the requirements of s85(2) and s88(1), particularly if the removal contemplated by s85(2) could be read as entailing immediate removal or, in the language of the 2000 amendment, removal as soon as practicable after the person's presence in the casino premises became known. But the purpose of s88 is clear. Contravention of provisions such as ss84 and 87 made the contravener liable to a penalty. Detention was permitted on reasonable suspicion of contravention to await the arrival of the police. The formal charging of such persons, if thought appropriate, was made by the police, no doubt after due investigation. In my opinion, s85(2) must be read in a way which accommodated the inspector's power to detain under s88(1). 42 In the context of that legislative purpose, the circumstances that a person who contravened s84 by entering or remaining in casino premises is subject to a penalty and that s88(1) enabled an inspector to detain such persons until the arrival of a police officer inferentially so that the detained person be charged by the police, lead me to conclude that s85 should not be read as requiring immediate removal without detention under s88 and is not therefore repugnant to the regulatory extension under s88(2) of the power to detain persons reasonably suspected of being the subject of an exclusion order. 43 Nor do I think that there is any reason to read the Governor's power to prescribe a provision of the Act within the meaning of s88(2) as limited to provisions proscribing conduct as serious as cheating or as, in some other way, regarded as like cheating. The purpose was to allow a person reasonably suspected of contravening provisions of the Act to be detained and held until the police arrive so that they could be charged and if the offence was proved penalised in accordance with the provisions of the Act. 44 In my opinion, clause 23(a) of the Regulation was validly made. 45 The trial Judge found that the detention of Mr Rixon was made on reasonable grounds and that no more force was used than was proper in the circumstances. Her Honour said that Mr Rixon's evidence established that he was informed of the reasons for the detention and that the police were notified immediately of the detention. Further, her Honour found that Mr Rixon was not detained for any longer than was reasonable to enable a police officer to attend at the casino premises. The evidence was that Mr Perry suspected that Mr Rixon was subject to an exclusion order. He had reasonable grounds for doing so. He spoke to Mr Sheldon who on the basis of what Mr Perry told him had reasonable grounds for so suspecting and asking Mr Rixon to go to the interview room. Nothing was put to the Court that persuaded me that these findings were not open to the trial Judge on the evidence. Reliance was placed on the size of Mr Sheldon (Mr Perry described him as "a big boy" weighing perhaps 120, 130 kilos) and Mr Rixon's experience at the casino premises on 30 June 1996 to explain and justify some apprehension. But such apprehension, if it existed, does not undermine the trial Judge's decision. 46 At the trial counsel for Mr Rixon drew attention to the cases which emphasise that the law in this country is very jealous of any infringement of personal liberty and that any statute which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right. "Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."; see Re Bolton (1987) 162 CLR 514 at 523, a passage which her Honour quoted. In my opinion, the Act made it unmistakably clear that s84 could be prescribed as a provision the suspected contravention of which, if on reasonable grounds, would enable the persons designated in s88(2) to detain the suspected person. Accordingly, in my opinion the appeal against her Honour's conclusion that Mr Rixon's case for unlawful arrest and false imprisonment must fail, also fails. Validity of Exclusion Order 47 The appellant challenged the efficacy of exclusion order of 13 June 1996 and the authority of Mr Bell to issue it. There was evidence in the form of a letter of 25 January 1996 from SHC's recruitment and placement director to Mr Bell that he had been appointed security shift manager effective from 29 January 1996. There was evidence in the form of a letter of 7 November 1995 from SHC and signed by David McGlinchey "General Counsel - Director of Compliance" to Mr R L Harrex, Director of Casino Surveillance, Department of Gaming and Racing, in the following terms: "EXCLUSION ORDERS: CASINO CONTROL ACT 1992; SECTION 79 I refer to our meeting on 24 October 1995 and confirm that the persons holding the following positions are authorised to issue Exclusion Orders for and on behalf of Sydney Harbour Casino;" There follow a list of eight "positions" including "8. Security Shift Manager". This letter was said by SCPL to be evidence that the person holding the position of security shift manager had been duly authorised by SHC to issue exclusion orders for and on its behalf; see s69 of the Evidence Act 1995 and Compafina Bank v Australia and New Zealand Banking Group Limited [1982] 1 NSWLR 409 at 412. 48 Mr Rixon submitted that the power of "the casino operator" under s79(1) of the Act to give an order prohibiting a person from entering or remaining in a casino must be exercised by the board of directors or, alternatively, a member of the executive or a person in senior management. But I see no reason so to limit its exercise. There is nothing in the evidence to suggest that SHC could not by appropriate means authorise an officer to exercise this power. There is nothing to suggest that the authority was not duly given. There is evidence that it was duly given. Accordingly, in my opinion, this ground of appeal fails. Battery 49 Mr Rixon's evidence about the alleged battery was specific. He described the approach of the SHC employee, by implication Mr Sheldon, as follows: "I heard somebody grab me in the shoulder ….. and spun me around". In cross-examination he said: "Q. Your account of the events Mr Rixon is that whilst you were standing at the roulette table someone approached you, put their hand on your shoulder and I think you said turned you around and then asked were you Brian Rixon or something to that effect, is that your evidence? A. That's what happened. Q. I suggest to you that no-one at that point touched you on the shoulder at all and that all that was simply done was you were approached and the question asked, are you Brian Rixon? A. That's incorrect." 50 Apparently the questioner's phrase "put their hand on your shoulder" and Mr Rixon's assent to the question led the trial Judge to "accept the evidence of the plaintiff in relation to the manner he was approached by Sasha Sheldon, that is that he placed his hand on the plaintiff's shoulder." Placing the hand on the shoulder is not grabbing the shoulder, that is to say, seizing it suddenly. Her Honour must have rejected the evidence of grabbing and spinning around. Having made this finding, the trial Judge rejected Mr Rixon's case in battery on the basis that the touching lacked "the requisite anger or hostile attitude". 51 The placing of the hand on the shoulder could be a battery. As Holt CJ said in Cole v Turner (1704) 6 Mod 149; 87 ER 907 "the least touching of another in anger is a battery". On the other hand, as the Chief Justice said, "if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery". 52 However the absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding that the touching was not a battery. In In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 73 Lord Goff of Chieveley said: "In the old days it used to be said that, for a touching of another's person to amount to a battery, it had to be a touching 'in anger' (see Cole v Turner per Holt CJ); and it has recently been said that the touching must be 'hostile' to have that effect (see Wilson v Pringle [1987] QB 237, 253). I respectfully doubt whether that is correct. A prank that gets out of hand; an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it - all these things may transcend the bounds of lawfulness, without being characterised as hostile. Indeed the suggested qualification is difficult to reconcile with the principle that any touching of another's body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass." 53 In Collins v Wilcock [1984] 1 WLR 1172 Lord Goff (then Robert Goff LJ) sitting in the Divisional Court, at 1177-8 referred to the fundamental principle, plain and incontestable, that every person's body is inviolate, and that any touching of another person, however slight may amount to a battery. His Lordship referred to Cole v Turner and to Blackstone's Commentaries, 17th ed (1830) Vol 3, 120: "the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner." His Lordship continued: "But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see Tuberville v Savage (1669) 1 Mod 3. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is 'angry, revengeful, rude, or insolent' (see Hawkins, Pleas of the Crown, 8th ed (1824), vol 1, c15, section 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception . Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable's staff on the shoulder of a man who had climbed on a gentleman's railing to gain a better view of a mad ox, the touch being only to engage the man's attention, did not amount to a battery: see Wiffin v Kincard (1807) 2 Box & Pul 471; for another example, see Coward v Baddeley (1859) 4 H & N 478. But a distinction is drawn between a touch to draw a man's attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B observing in Rawlings v Till (1837) 3 M & W 28, 29, with reference to Wiffin v Kincard , that 'There the touch was merely to engage [a man's] attention, not to put a restraint upon his person'." 54 This distinction is explained in Clerk & Lindsell on Torts, 17th ed, 12-06 where the question is posed whether the physical contact imposed on the plaintiff was in excess of that "generally acceptable in everyday life". It is pointed out in a footnote that acceptable conduct must be considered in the context of the incident in dispute. "For an adult to jump on another and snatch her shoulder bag is clearly unacceptable. Between 13-year-old schoolboys it might perhaps be seen as 'as unremarkable as shaking hands'." 55 No error has been demonstrated which would entitle this Court to interfere with the trial Judge's finding that the touching lacked "the requisite anger or hostile attitude." More accurately, and consistently with her Honour's findings, it could not be said that the conduct of Mr Sheldon in the circumstances found and clearly for the purpose of engaging Mr Rixon's attention, was not generally acceptable in the ordinary conduct of daily life. Assault 56 A traditional definition of assault is "an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect"; see Clerk & Lindsell 12-12. The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty; see generally Clerk & Lindsell 12-13. 57 According to Fleming, The Law of Torts, 9th ed, at 31-32: "Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact. …. there may be an assault without battery if the threat to inflict unlawful force is not in fact carried out. …. Since the gist of assault lies in the apprehension of impending contact, the effect on the victim's mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm." 58 Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact; see, for example, Hall v Fonceca [1983] WAR 309. If the assault lies in creating an apprehension of impending contact, proof of the assault does not require proof of an intention to follow it up or carry it through. The trial Judge rejected the case in assault by finding "that the actions of the defendant's employee lacked 'the requisite intention in relation to assault'." By this her Honour must have meant the intention to create in Mr Rixon an apprehension of imminent harmful or offensive contact. Having rejected Mr Rixon's account of being grabbed or spun round, her Honour's finding that Mr Sheldon placed his hand on Mr Rixon's shoulder without using any degree of force and said "Are you Brian Rixon?" led her to conclude that Mr Sheldon had no intention of creating in Mr Rixon an apprehension of imminent harmful or offensive conduct. 59 In my opinion, the evidence left it open to her Honour to find that the necessary intention to create in Mr Rixon an apprehension of imminent harmful or offensive contact was lacking. The appeal against the trial Judge's decision that neither battery nor assault was made out accordingly fails. Conclusion 60 In my opinion, Acting Judge Balla correctly dismissed Mr Rixon's claims. Accordingly, the appeal should be dismissed with costs. 61 HEYDON JA: I agree with Sheller JA. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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