Whitebull HTL Pty Ltd v Independent Liquor and Gaming Authority; Area Hotel UT Pty Ltd v Independent Liquor and Gaming Authority; The Griffith Hotel Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWSC 588

Supreme Court New South Wales

Medium Neutral Citation: Whitebull HTL Pty Ltd v Independent Liquor and Gaming Authority; Area Hotel UT Pty Ltd v Independent Liquor and Gaming Authority; The Griffith Hotel Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWSC 588 Hearing dates: 16 November 2022 Date of orders: 05 June 2023 Decision date: 05 June 2023 Jurisdiction: Common Law Before: McNaughton J Decision: The Court makes the following orders: In relation to the first summons (Whitebull) (1) The Court declares that Condition 6030 (the "Challenged Condition") purportedly imposed by the Independent Liquor and Gaming Authority on Hotel Licence LIQH400108346 relating to the White Bull Hotel, 117 Marsh Street Armidale, upon the Independent Liquor and Gaming Authority's approval of the plaintiff's application to increase the gaming machine threshold of the White Bull Hotel from seventeen (17) to twenty-five (25) and the Independent Liquor and Gaming Authority's approval of the plaintiff's Local lmpact Assessment accompanying the application, is invalid and of no effect. (2) The Independent Liquor and Gaming Authority is to amend its records relating to Hotel Licence LIQH400108346 to remove reference to the Challenged Condition. (3) The Court declares that in determining the plaintiff's application to increase the gaming machine threshold of the White Bull Hotel, in the circumstances of the present case, the relevant statutory criteria are exhaustively set out in Division 1 of Part 4 of the Gaming Machines Act 2001 (NSW). (4) The Court declares that, in determining the plaintiff's application for increase in the gaming machine threshold of the White Bull Hotel, considerations of possible or likely impacts on the local community are irrelevant. (5) The Independent Liquor and Gaming Authority are to pay the costs of and incidental to these proceedings. In relation to the second summons (Area Hotel) (1) The Court declares that Conditions 3030 and 3040 (the "Challenged Conditions") purportedly imposed by the Independent Liquor and Gaming Authority on hotel licence LIQH400116853 relating to the Area Hotel Griffith ('the Licence') upon the Independent Liquor and Gaming Authority's grant of the plaintiff's application to: (a) approve the lease of seven (7) gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 (NSW) from hotel licence LIQH400116896 (relating to the Griffith Hotel) to the Licence and (b) increase the gaming machine threshold of the Licence from 23 to 30, are invalid and of no effect. (2) The Independent Liquor and Gaming Authority is to amend its records relating to the Licence to remove reference to the Challenged Conditions. (3) The Court declares that, in determining an application for the leasing of gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 (NSW), the relevant statutory considerations are exhaustively set out in that Division. (4) The Court declares that, in determining an application for leasing of gaming machine entitlements pursuant to Part 3, Division 2A Gaming Machines Act 2001 (NSW), questions of the possible or likely impacts on the local community are irrelevant. (5) The Court declares that, in determining a gaming machine threshold increase application in circumstances where, pursuant to section 35(2) Gaming Machines Act 2001 (NSW) the threshold increase application is not required to be accompanied by a local impact assessment, questions of the possible or likely impacts on the local community are irrelevant. (6) The Independent Liquor and Gaming Authority is to pay the plaintiff's costs of and incidental to these proceedings. In relation to the third summons (Griffith Hotel and North Rydge) (1) An order in the nature of certiorari quashing the decision of the Independent Liquor and Gaming Authority made on or about 15 June 2022, to refuse the transfer of a single gaming machine entitlement from the licence of The Griffith Hotel Motel, 25 Kooyoo Street, Griffith (LIQH400116896) to the licence of the Gemini Hotel, 201-227 Banna Avenue, Griffith (LIQH400123264), and the consequent increase in the gaming machine threshold of the Gemini Hotel (collectively the "Applications"). (2) An order that the Applications be granted. (3) The Court declares that, in determining an application for transfer of gaming machine entitlements pursuant to Part 3 Division 2 of the Gaming Machines Act 2001 (NSW), the relevant statutory considerations are exhaustively set out in that Division. (4) The Court declares that, in determining an application for transfer of gaming machine entitlements pursuant to Part 3 Division 2 of the Gaming Machines Act 2001 (NSW), questions of the possible or likely impacts on the local community are irrelevant. (5) The Court declares that, in determining a gaming machine threshold increase in circumstances where, pursuant to section 35(2) Gaming Machines Act 2001 (NSW), the threshold increase application is not required to be accompanied by a Local lmpact Assessment, questions of the possible or likely impacts on the local community are irrelevant. (6) The Independent Liquor and Gaming Authority is to pay the plaintiff's costs of and incidental to these proceedings. Catchwords: ADMINISTRATIVE LAW – application to update gaming machine entitlements – conditions imposed on hotel licenses – whether decision maker exercising power under Gaming Machines Act 2001 (NSW) is empowered to impose conditions pursuant to another statute – whether purported exercise of discretion by the Independent Liquor and Gaming Authority to impose conditions was ultra vires – whether gaming machine entitlements are regulated solely by the regime set out in the Gaming Machines Act or, whether s 53 of the Liquor Act 2007 (NSW) provides the Independent Liquor and Gaming Authority additional discretionary power to impose other conditions – Gaming Machines Act and Liquor Act are related but regulate different subject matter – no overriding direction in s 53 of the Liquor Act – Gaming Machines Act and Gaming Machines Regulation 2019 (NSW) contain standalone regime – decisions of the Independent Liquor and Gaming Authority quashed. Legislation Cited: Casino, Liquor and Gaming Control Authority Act 2007 (NSW) Casino, Liquor and Gaming Control Authority Bill 2007 (NSW) Clubs, Liquor and Gaming Machines Legislation Amendment Act 2011 (NSW), Sch 2 Crimes Act 1914 (Cth), s 20BQ Gambling Legislation Amendment (Gaming Machine Restrictions) Act 2000 (NSW) Gaming and Liquor Administration Act 2007 (NSW), ss 2A, 6 Gaming Machines Act 2001 (NSW), Pt 2, Pt 3, Divs 2, 2A, Pt 4, Div 1, Pt 5, Div 1, Pts 6, 8, Schs 1, 2, ss 1, 3, 16, 19, 20, 20A, 32, 33, 34, 35, 36, 36C, 44, 46, 49A, 56, 57, 82, 131, 136, 152, 172, 197, 198, 210, 211 Gaming Machines Amendment Act 2008 (NSW), Sch 1 Gaming Machines Amendment Bill 2008 (NSW) Gaming Machines Amendment (Leasing and Assessment) Act 2018 (NSW) Gaming Machines Regulation 2019 (NSW), cl 30 Interpretation Act 1987 (NSW), s 34 Liquor Act 1982 (NSW), ss 18A, 19, 20, 21, 21AA, 22, 23, 23A, 23AA, 23AB, 24, 67, 101, 104, 125C, 126 Liquor Act 2007 (NSW), Pt 3, Div 1, Pt 4, Div 2, Pt 7, Div 2, Pts 9,11, Sch 1, ss 3, 7, 10, 11, 15, 15A, 16, 17, 20C, 27, 48, 52, 53, 56, 73, 74, 92, 99, 122, 123 Liquor Bill 2007 (NSW) Miscellaneous Acts (Casino, Liquor and Gaming) Amendment Bill 2007 (NSW) Registered Clubs Act 1976 (NSW), s 15 Supreme Court Act 1970 (NSW), s 69 Unlawful Gambling Act 1998 (NSW), s 7 Cases Cited: Anthony Hordern and Son Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152 Kelly v Saadat-Talab (2008) 72 NSWLR 305; [2008] NSWCA 213 Masters v Garcia (2005) 65 NSWLR 92; [2005] NSWCA 287 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511; 137 ALR 47 The King v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529; [1949] HCA 30 White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243 Texts Cited: Dennis Pearce, Robert Geddes, Statutory Interpretation in Australia (9th ed, 2019) Explanatory Note, Gambling Legislation Amendment (Gaming Machine Restrictions) Bill 2000 (NSW) Explanatory Note, Gaming Machine Amendment Bill 2008 (NSW) Explanatory Note, Gaming Machines Bill 2001 (NSW) Explanatory Note, Liquor Bill 2007 (NSW) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 November 2001 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 October 2008 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 March 2018 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 November 2007 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2011 Category: Principal judgment Parties: Whitebull HTL Pty Ltd (Plaintiff) Area Hotel UT Pty Ltd (Plaintiff) The Griffith Hotel Pty Ltd (First Plaintiff); North Rydge Pty Ltd (Second Plaintiff) Independent Liquor and Gaming Authority (Defendant) Representation: Counsel: C Birch SC (Plaintiffs) K Morgan SC with C Ernst (Defendant)