Tourist Accommodation Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 67

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tourist Accommodation Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 67 Hearing dates: 24 March 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Before: Bell CJ at [1]; Brereton JA at [78]; Kirk JA at [82] Decision: 1. Leave to appeal granted in relation to grounds 1-3 and 5-7. 2. Leave to appeal refused in relation to ground 4. 3. Appeal dismissed with costs.

Catchwords: ADMINISTRATIVE LAW – procedural fairness – s 36(3)(c)(i) of the Gaming Machines Act 2001 (NSW) – whether denial of procedural fairness arose out of Authority's finding that gaming machine threshold increase application not associated with "positive contribution to the local community" - whether Authority obliged to inform Applicant of the quantum of a community benefit payment which would satisfy the community benefit requirement – whether Authority obliged to approve local impact assessment, subject to the payment of a specific community benefit payment – where formula for calculating community benefit payment provided in guidelines - where Authority had informed Applicant that its proposed community benefit payment was insufficient ADMINISTRATIVE LAW – ground of review other than procedural fairness – statutory construction – irrelevant and relevant considerations – s 36(3)(e) of the Gaming Machines Act 2001 (NSW) – whether Authority impermissibly treated Applicant's Class 1 local impact assessment as though it were a Class 2 local impact assessment – where Authority considered potential "funnelling effect" arising out of having 50 gaming machines distributed between adjacent venues – where one venue had extended opening hours Legislation Cited: Gaming and Liquor Administration Act 2007 (NSW) s 6 Gaming Machines Act 2001 (NSW) ss 3, 14, 19, 20 32, 34, 36, 36A-36C, Part 3, Div 2 Liquor Act 2007 (NSW) Cases Cited: Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 R v Australian Broadcasting Tribunal; Ex parte 2 HD Pty Ltd (1979) 144 CLR 45; [1979] HCA 62 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Category: Principal judgment Parties: Tourist Accommodation Pty Ltd (Applicant) Independent Liquor and Gaming Authority (Respondent) Representation: Counsel: