LISAFA HOLDINGS PTY LTD v THE GAMING TRIBUNAL AND ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY JJA and Hope AJA 21 February 1992 [1992] NSWCA 138 Mahoney JA This matter comes before the court in a fashion which is not ordinary. A summons has been filed naming as opponents the Gaming Tribunal constituted under the Gaming and Betting Act 1912 and Mr George Henry Taylforth, who the court has been informed is the deponent of an affidavit presently before the Gaming Tribunal. Provision is made under s28 and other sections of the Gaming and Betting Act for the filing by a senior police officer of an affidavit stating that officer's belief that a place is a gaming house, and setting out the grounds of that belief. $28(2) provides: "28(2) The Gaming Tribunal shall, not later than five days after an affidavit is filed, make an interim declaration that the place is reasonably suspected of being a gaming house or determine not to make such an interim declaration." Provision is made, in subs(3), for the matters to which the Gaming Tribunal may have regard in "determining whether or not to make an interim declaration". It is not necessary to refer further in detail to the terms of the Act. The court does not have before it any affidavit, nor has it taken evidence in the ordinary way. It relies upon what has been said to it by Mr Webb QC, who appears for the claimant. In substance what has been said is this: On or about 18 February 1992 Mr Taylforth made an affidavit which apparently was filed before the Gaming Tribunal in relation to matters referred to in s28. The court has been informed that the parties agree that the five day period referred to in s28(2) will expire at the conclusion of Monday next. The matter was listed before the Tribunal, constituted by his Honour Judge Ward of the District Court, on 21 February 1992. Application was made on behalf of Lisafa Holdings Pty Ltd, the claimant in the present proceeding, for the adjournment of the matter or for some other relief, the basis of the application being, and I am stating the matter in most general terms, that the case to be put by that company against the making of an interim order under s28 has not been able to be prepared and, it may be, will not be able to be prepared before Monday next, or even before the expiration of the relevant five day period on Monday next. The learned judge indicated the exigencies imposed by s28(2) to the extent that the court has been informed he said that if he were hearing the matter on Monday next he would feel obliged to act and determine then whether an order should be made. Presumably his Honour was intending to indicate that he would feel bound by the statute so to do whether or not, upon the company's claim, it felt it had had sufficient time to prepare its case or put its case before the Tribunal. Ihave stated the matter in most general terms because I have taken what I have said from what has been said to the court by Mr Webb during the course of his submission to the court, that submission being made in the course of interrogation from the Bench. I have, I believe, stated the substance of the matter. 2 UNREPORTED JUDGMENTS The application made to this Court is an application based upon alleged jurisdiction of this Court in respect of the Gaming Tribunal as a specified tribunal within the Supreme Court Act. The summons specifies, as the only ground of the application: "That the claimant cannot be afforded a fair hearing of the application before the first opponent". The basis of that claim is that which I have indicated. Reference has been made to the decision of this Court in Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1. In that case this Court indicated its view as to the requirements of natural justice in the hearing of an application such as this. It indicated, within the terms specified in the judgment, that a respondent to an application of that kind would be entitled to have an appropriate time to present its case to the Tribunal. I am, again, putting the matter in most general terms. What I say is not to be taken to be an analysis of that decision or a statement of the ratio decidendi of it. The question which now arises is what order should be made upon the present application. His Honour Judge Ward indicated that if the matter proceeded before the Tribunal on Monday next it is probable or certain that he would not be the judge hearing the matter and that another judge would constitute the Tribunal. The position is that the Act contemplates a period of five days as a period within which the Tribunal is to decide whether an order should be made. What the requirements of natural justice would afford to a party in those circumstances would be conditioned by that fact. What would be required in order to provide natural justice in those circumstances is a matter upon which it is not necessary to express an opinion. It may be that the facilities to be afforded to the respondent would be those conditioned to a period of five days. It is possible - I express no opinion upon the matter - that, in particular circumstances, the law may require that notice of the application be given before the filing of the affidavit; but that is not a matter which it is necessary to decide in the present application. I do not think that the court should pre-empt the decision of the Gaming Tribunal on Monday next, assuming it hears the matter, however it be constituted. It may be that on that day the Tribunal will have regard to what has been said and formulate a procedure which will adequately satisfy the requirements of natural justice. It may be that it will conclude that the requirements of natural justice cannot be complied with. What it should do in those circumstances is then a matter for it to determine. I do not wish to express any final view upon whether in such a circumstance the Tribunal could, or should, dismiss the application merely upon that ground. That is a matter for it to determine. I do not think, in general, that this Court should pre-empt the decision to be made by the judge constituting the Tribunal or his assessment of the position on that day. I, therefore, do not think that any order should be made of the kind sought at the present time. I would add only this. I am conscious of what has been said by Mr Webb that if the judge makes an order on Monday next declaring the premises to be a gaming house within the terms of s28, that can impose serious consequences upon the premises and upon those associated with them. That is a matter which no doubt the judge will take into account. Whether, if in fact such an order be made in circumstances where natural justice has been denied to the parties concerned, such an order will be void or voidable is not a matter on which it is necessary to express an opinion. In all the circumstances my opinion is merely that the present application should not succeed. It follows from what I have said URWISAFA HOLDINGS PTY LTD v THE GAMING TRIBUNAL AND ANOR (Hope AJA) 3 that that conclusion does not pre-empt the decision of this Court subsequently on any application which the company, or anyone else, may desire to make in relation to the premises. I would propose that the proceeding be dismissed with costs. Handley JA I agree. Hope AJA I agree. Mahoney JA: The proceeding will then be dismissed with costs.