Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210 Hearing dates: 14 June 2023 Date of orders: 7 September 2023 Decision date: 07 September 2023 Before: Meagher JA at [1]; Beech-Jones JA at [2]; Basten AJA at [124] Decision: (1) Grant the applicant leave to appeal. (2) Direct the applicant file within 7 days a notice of appeal in the form of the draft notice of appeal dated 9 March 2023. (3) Grant the respondent leave to cross‑appeal. (4) Direct the respondent file within 7 days a notice of cross‑appeal in the form of the draft notice of cross‑appeal dated 26 May 2023. (5) Allow the appeal and: (a) Set aside the declaration and orders made by the primary judge on 9 December 2022; (b) In lieu thereof, order that the proceedings be dismissed. (6) Dismiss the cross‑appeal. (7) Order the respondent to pay the applicant's costs of the proceedings at first instance and in this Court. Catchwords: LICENSING — Gaming Machines Act 2001 (NSW) — gaming machine entitlements ("GMEs") — gaming machine threshold — application to Independent Liquor & Gaming Authority ("Authority") to increase gaming machine threshold from 20 to 24 — application accompanied by "Local Impact Assessment" (LIA) — application and LIA approved — subsequent applications to transfer seven GMEs — applications approved and gaming machine threshold increased from 24 to 27 — application to Authority seeking revocation of earlier approval — power to revoke earlier approval of LIA — whether power to revoke earlier approval of increase in threshold — whether power to revoke earlier approval of transfer of GMEs — power of Authority to reduce threshold — whether power to "set" threshold under s 32(1) of Gaming Machines Act could be re-exercised from time to time to permit increase or decrease in threshold ADMINISTRATIVE LAW — Interpretation Act 1987 (NSW), s 48(1) — exercise of function from time to time as occasion requires — whether s 48(1) confers power to revoke previous decision made under a statutory power — whether s 48(1) requires every function to which the provision is directed to be interpreted as including power or authority to revoke earlier exercise of that function — effect of re-exercise of function or power may be to reverse or revoke earlier exercise of power — power conferred by s 19(2)(a) of Gaming Machines Act to approve transfer of GMEs does not include power to revoke earlier approval of transfer of GMEs — power conferred by s 34(4) of Gaming Machines Act to approve increase in threshold does not include power to revoke earlier approval of increase in threshold — in the alternative Gaming Machines Act manifests contrary intention to implication of any such powers of revocation Legislation Cited: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 64 Acts Interpretation Act 1901 (Cth), ss 5, 32, 33 Gaming Machines Act 2001 (NSW), ss 10, 11, 16, 19, 20, 25, 32, 34, 35, 36, 56 Gaming Machines Regulation 2019 (NSW) Interpretation Act 1889 (UK), s 32 Interpretation Act 1897 (NSW), s 32 Interpretation Act 1987 (NSW), s 48 Liquor Act 1982 (NSW), s 182 Liquor Act 2007 (NSW), s 53 Migration Act 1958 (Cth), ss 12, 501 Sir H. Meux's Settled Estate Act 1863 (UK), s 3 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; (2006) 25 VAR 449 Lawrie v Lees (1881) 7 App Cas 19 Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; [2021] HCA 1 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; [1990] FCA 22 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542; [2005] FCAFC 181 Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31; [2017] FCAFC 37 Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 Southlink Pty Ltd v WorkCover Corporation of South Australia (2009) 104 SASR 172; [2009] SASC 175 Category: Principal judgment Parties: Independent Liquor & Gaming Authority (Applicant) 4 Boys (NSW) Pty Ltd (Respondent) Representation: Counsel: S Mirzabegian SC; D Birch (Applicant) C Birch SC (Respondent)