Supreme Court New South Wales Medium Neutral Citation: The Griffith Hotel Pty Ltd v Independent Liquor and Gaming Authority [2022] NSWSC 1520 Hearing dates: 27 September 2022 Date of orders: 27 September 2022 Decision date: 27 September 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The hearing of the Summons proceed simultaneously with the hearing of each Summons in matters 2021/356546 (Whitebull HTL Pty Ltd v Independent Liquor and Gaming Authority) and 2021/356547 (Area Hotel UT Pty Ltd v Independent Liquor and Gaming Authority), presently listed for hearing on 16 November 2022. (2) The costs of today's motion be costs in the cause. (3) The Independent Liquor and Gaming Authority to serve any evidence on which it relies by 5.00pm on 1 November 2022. (4) The plaintiff to serve their written submissions by 7 November 2022. (5) The defendants to serve their written submissions by 14 November 2022. (6) The plaintiff to serve an outline of the submissions which they intend to pursue by 20 October 2022. (7) Liberty to apply on 3 days' notice is granted. Catchwords: CIVIL PROCEDURE — hearings — application that proceedings be heard together — whether common question can be identified — not necessarily fatal — overlap of issues sufficient on the present facts Legislation Cited: Supreme Court Act 1970 (NSW) Gaming Machines Act 2001 (NSW) Civil Procedure Act 2005 (NSW) Liquor Act 2007 (NSW) Cases Cited: Humphreys v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 Category: Procedural rulings Parties: The Griffith Hotel Pty Ltd (First Plaintiff) North Ryde Pty Ltd (Second Plaintiff) Independent Liquor & Gaming Authority (Defendant) Representation: Counsel: A Jucha (Plaintiffs) E Kneebone (Defendant) Solicitors: Hatzis Cusack Lawyers (Plaintiffs) Crown Solicitor's Office (Defendant) File Number(s): 2022/250390 Publication restriction: None REVISED EX TEMPORE Judgment 1. By way of a motion filed by the plaintiffs, the Griffith Hotel Pty Limited and Northridge Pty Limited on 23 August 2022, the plaintiffs seek orders that the hearing of the summons, which they filed on 23 August 2022 against the defendant, the Independent Liquor and Gaming Authority (the Authority), proceed simultaneously with the hearing of each of the summons filed in two other matters, which I will name the Whitebull Hotel and Area Hotel matters, which are listed for hearing for one day in this Court on 16 November 2022. 2. Essentially the plaintiffs seek to have this matter heard at the same time as two earlier matters which the plaintiffs say are similar, even though the summons in this matter was only filed in August 2022. 3. As set out in r 28.5 of the Uniform Civil Procedure Rules 2005 (UCPR), the Court has power to order that the proceedings be consolidated or tried at the same time. Rule 28.5 is in the following terms: 28.5 Consolidation etc of proceedings (cf SCR Part 31, rule 7; DCR Part 12, rule 7) If several proceedings are pending in the court and it appears to the court-- (a) that they involve a common question, or (b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them. 1. On the hearing of the application, Mr Jucha appeared for the plaintiffs and Ms Kneebone appeared for the defendant. 2. In support of its application, the plaintiffs relied on two affidavits of Anthony Hatzis dated 23 August 2022, as well as an affidavit of James Huntley Knox dated 22 August 2022. The Authority relied on an affidavit of Tram Nguyen dated 23 September 2022. 3. Mr Huntley Knox is the sole director of the first and second plaintiffs. Mr Hatzis is the plaintiff's solicitor. Ms Nguyen is a solicitor employed in the Crown Solicitor's Office. 4. As set out in the summons, the plaintiffs seek an order under s 69 of the Supreme Court Act 1970 (NSW) quashing the decision made on 15 June 2022 to refuse the transfer of a single gaming machine entitlement from the licence of the Griffith Hotel to the licence of the Gemini Hotel (both hotels are in Griffith). 5. The plaintiffs also seek a declaration that, in determining an application for transfer of gaming machine entitlements pursuant to Pt 3 Div 2 of the Gaming Machines Act 2001 (NSW), the relevant statutory considerations are exhaustively set out in that Division, and that, in determining such an application, the questions of possible or likely impacts on the local community are irrelevant. 6. As I understand the plaintiffs' case in this matter (the Griffith proceedings), the plaintiffs assert that, in circumstances in which the plaintiff is merely seeking the transfer of an existing gaming machine entitlement from one hotel under the control of the same people (I use that term neutrally) to another hotel under the control of the same people, provided that the relevant statutory requirements are satisfied, the Authority has no power not to grant the application and has no discretion to impose conditions on the transfer of the application. 7. In the Griffith proceedings, the Authority has refused the application for transfer. Around the time of refusal, the Authority provided what are described as short reasons for its refusal. I understand that the Authority wishes to provide additional or more extensive reasons, which I assume are in the process of being collated but have not yet been provided. 8. The plaintiffs claim for the purposes of this application that the question in these proceedings is similar or identical to the question which will arise in the Whitebull Hotel and Area Hotel proceedings, that is, does the Authority have a discretionary power to either refuse an application for transfer or impose conditions. The plaintiffs submit that that question will be common for all three matters, albeit in the other two matters the Authority did not merely refuse the application for transfer but approved the application with conditions. 9. The plaintiffs also submit that, in a case such as this, (as is evident from the fact that the other two matters are listed together for determination on one day only), the evidence will be limited to the record of the decision and that, even though these proceedings have only recently been commenced, there should be no difficulty for the Authority preparing or collating evidence upon which it might wish to rely, having regard to the limited nature of the evidence. 10. The plaintiffs also submit that, even if there is no common question, having regard to the overriding purpose of the Civil Procedure Act 2005 (NSW) and the UCPR and the similarity of issues between the parties, it would be desirable to make an order under r 28.5. 11. The Authority opposes the orders sought in the motion essentially on the basis that: 1. There is no common question; 2. The Authority has not yet even provided its reasons for its decision; 3. It has a concern that it will not be able to properly prepare the matter or be ready for the hearing, having regard to the need to have the reasons before submissions can be prepared; and 4. There is a risk that, if the orders are made, ultimately it may be necessary to vacate the hearing date leading to further delay and costs in dealing with all of the matters. Consideration 1. As set out in r 28.5 of the UCPR, the Court may make an order that the proceedings be heard at the same time if they involve a common question. However, the Court also has a general discretion to make an order under r 28.5 if, for some other reason, it is desirable to make such an order. 2. In Humphreys v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11], Besanko J set out some matters which should be considered in determining whether the proceedings should be tried together under the Federal Court Rules, including: 1. Are the proceedings sufficiently of a similar nature? 2. Are there issues of fact and law common to each proceeding? 3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? 4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide by the outcome, or, at least, the determination of common issues of fact and law? 5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time? 6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? 7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence? 8. Is one proceeding further advanced in terms of preparation for trial than the others? 9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time? 1. It seems to me that many of the matters referred to by his Honour are relevant in the proper application and determination of this matter. 2. Whilst the agreement of an identified common question would certainly be a powerful factor in determining whether to make an order that the proceedings be tried at the same time, in some cases the parties may not be able to agree that there is a common question to be determined. This is such a case. 3. The plaintiffs submit in strong terms that there is a common question, whereas the defendant submits equally strongly that there is no such common question. It is difficult for me to determine whether there is a common question in those circumstances without spending considerable time reviewing all of the allegations in each of the summons, the evidence and the reasons for decisions. No one is asking me to do that. 4. Having said that, I accept that, at least as far as the plaintiffs are concerned, there is what may be termed a broadly common question. The Authority's response to the issue of a common question was to identify that the questions which will be arising in the Griffith proceedings will be different from the Area Hotel and Whitebull Hotel matters, at least in part, because the Court will be required to consider different legislation. 5. For example, in the Whitebull Hotel and Area Hotel matters, the defendant says the issue will involve the proper construction and consideration of s 53 of the Liquor Act 2007 (NSW) whereas, in the Griffith proceedings, it is suggested that the main issue will involve a consideration of the relevant sections of the Gaming Machines Act 2001 (NSW). 6. However, as Mr Jucha points out, as set out in para 33 of the statement of reasons provided by Philip Crawford, the chairperson for the Authority in respect of the Whitebull Hotel matter, there is a reference to approval pursuant to ss 36 and 34 of the Gaming Machine Act, and then reference to conditions set out in Schedule 1. 7. On one view, the onus is on the plaintiffs on an application such as this to establish that there is a common question and, having regard to the submissions of Ms Kneebone, there remains some doubt about whether there is truly a common question. 8. However, I must adopt a practical and purposive approach to this type of application. I do not consider that uncertainty as to the proper identification of a common question is necessarily fatal to the application. Even if there is not an actual common question, there is certainly an overlap of issues between the Whitebull Hotel, Area Hotel and Griffith proceedings. 9. Further, even if, as pointed out by Ms Kneebone, the parties are separate legal entities, there is a commonality between them in the sense that these are all companies operated by the same director; they have the same legal representatives and the same counsel, such that there will certainly be a significant overlap in terms of issues and representation. 10. These are not cases in which there is likely to be cross-examination of witnesses or extensive affidavit evidence. All three cases will probably involve not much dispute on the facts but significant dispute on the Authority's approach to the applications, having regard to the differing views on the statutory powers and the way in which the powers have been exercised. In my view, there is a significant overlap in terms of the issues arising. 11. Of course, the plaintiffs have only recently commenced these proceedings and it would not be appropriate or fair for the defendant to be forced on to a hearing for which it cannot possibly be ready. The submissions of Ms Kneebone about the need to circulate the reasons and then prepare submissions thereafter are well made. However, in the end, if the Authority truly cannot be ready for the hearing, then no doubt the Authority will, closer to the hearing, be in a position to make an application. As I said to the plaintiffs, the plaintiffs are taking the risk by trying to force this matter on at an early stage in conjunction with the other matters. 12. Having said that, I do not accept the general proposition that, if a statement of reasons was provided, say, by 1 November 2022, the Authority would not be able to prepare the case in the remaining period. 13. I have looked at the submissions prepared by Senior Counsel in the Whitebull Hotel and Area Hotel matters. The matters raised are no doubt difficult and complex, but the submissions are not what I would call excessively lengthy. That is not a criticism, rather a compliment; but these are not matters where the parties would be required to spend weeks preparing for a hearing. 14. In the end, the decisions which the plaintiffs seek to challenge in the Griffith proceedings are the decisions of the defendant to refuse the transfer of gaming machine entitlements from the Griffith Hotel to the Gemini Hotel, and to refuse the application for a consequent increase in the threshold of the gaming machines at the Gemini Hotel. The decisions in the Whitebull Hotel and Area Hotel matters, although somewhat different, involve similar issues. In particular, the plaintiff is challenging the imposition of the conditions on the licence on the basis of whether the defendant has validly exercised its power to impose conditions in circumstances in which, in both the Whitebull Hotel and Area Hotel matters, this is said to be just a transfer between different but related corporate entities, and, in the Griffith proceedings, it is in effect a similar type of application. 15. In the circumstances, I am satisfied that the proceedings should be heard together and I make an order in accordance with r 28.5 of the UCPR that the Griffith proceedings be heard at the same time as the other proceedings, being the Whitebull Hotel and Area Hotel proceedings. Orders 1. I make the following orders : 1. The hearing of the Summons proceed simultaneously with the hearing of each Summons in matters 2021/356546 (Whitebull HTL Pty Ltd v Independent Liquor and Gaming Authority) and 2021/356547 (Area Hotel UT Pty Ltd v Independent Liquor and Gaming Authority), presently listed for hearing on 16 November 2022. 2. The costs of today's motion to be costs in the cause. 3. The Independent Liquor and Gaming Authority to serve any evidence on which it relies by 5.00pm on 1 November 2022. 4. The plaintiff to serve their written submissions by 7 November 2022. 5. The defendants to serve their written submissions by 14 November 2022. 6. The plaintiff to serve an outline of the submissions which they intend to pursue by 20 October 2022. 7. Liberty to apply on 3 days' notice is granted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2022