LISAFA HOLDINGS PTY LTD v THE GAMING TRIBUNAL AND ANOR [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 4 March 1992 [1992] NSWCA 139 PRACTICE and PROCEDURE — stay to protect appeal to/review by Court of Appeal — order of Gaming Tribunal — declaration that premises a gaming house — removal of source of offence — serious financial consequences of closure — public interest in orders of Tribunal — held: Short stay of operation of Tribunal order granted upon undertakings and provision for immediate return before the Court of Appeal on 1 hour's notice if breached. Gaming and Betting Act 1912, s33. Kirby P Earlier today I made orders providing for the expedited hearing of a purported appeal brought by Lisafa Holdings Pty Ltd against a decision of the Gaming Tribunal (the first opponent) which has submitted. The appeal proceedings before the Tribunal were commenced on the complaint of Mr George Taylforth (the second opponent) who contests. I ordered that the "appeal" be expedited and returned before the Court of Appeal for hearing on Monday next, 9 March 1992. On that day it may be anticipated that the Court will proceed to determine the matters in contest between the parties. It is sufficient for present purposes to say that it appeared to me, at the time of the making of the orders for expedition, that there was a matter of substance to be argued before the Court. The litigation is not without a history. The parties were earlier before the Court of Appeal. See Lisafa Holdings Pty Ltd v Commissioner of Police and Ors (1988) 15 NSWLR 1 (CA). The occasion for the order of the Gaming Tribunal was a finding that the premises owned by the claimant in Haberfield near Sydney were a gaming house because of the presence on the premises of what are alleged to be prohibited amusement devices. Such devices were said to have been in part of the premises. Generally described, the premises amount to a coffee shop with facilities for the playing of cards and the playing of pool. It is common ground the playing of cards, the playing of pool and the ordinary culinary activities of the coffee shop were perfectly lawful. Counsel for the claimant has given an undertaking to the Court, on behalf of the claimant, that the alleged prohibited amusement devices have been entirely removed from the premises. They will remain removed from the premises until the Court of Appeal has disposed of the claimant's "appeal". Upon that basis, and it being clear that the other activities of the premises were, at least on the evidence at present, perfectly lawful, it appears appropriate to me to permit the claimant to continue its lawful activities on the premises. Such activities should be interfered in to the minimum extent possible pending the completion of the claimant's challenge to the lawfulness of the Tribunal's orders. There is before the Court evidence which indicates that the premises have been used for mixed activities of snooker, billiards, cards, chess, draughts, backgammon and like games, including video games, since June 1984. There is 2 UNREPORTED JUDGMENTS also evidence that an interruption to the business of the claimant for more than is strictly necessary for the purpose of upholding the order of the Gaming Tribunal and the purpose of the Gaming and Betting Act 1912 would cause grave damage to the financial interests of the claimant and thereby to those who stand behind the claimant. Because of the early return of the appeal, by virtue of the orders made earlier today, it is appropriate having regard to the undertaking given to the Court, to permit the lawful business of the claimant to continue until the Court of Appeal has had the opportunity to determine the matters in the appeal. A problem in this regard was properly drawn to my attention by counsel for the second opponent. It arises from the terms of s33 of the Gaming and Betting Act 1912. By that section, a criminal offence is created upon a declaration having been made that the premises are a "gaming house", if the premises thereafter are used for the purposes of any business. It is unnecessary, in the way in which the matter has been argued, for me to resolve whether a stay ordered by the Court in other terms would protect a claimant from a prosecution under the section. That objective can be achieved by providing, as counsel for the second opponent conceded, for a very short time until the Court has the matter before it on Monday next, that the interim declaration made by the Gaming Tribunal itself be stayed. In making such an order of stay I take into account the special considerations which apply in the presence of such relief where the parties before the Court are not the only persons affected by the order under appeal or review. Here the public interest is, to some extent at least, involved. Cf Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125 (CA); Smith v New South Wales Bar Association (1991) 66 ALJR 219 (HC). The orders which I make, therefore, and which I add to the orders earlier announced today are: (1) Upon the undertaking of counsel for the claimant, on behalf of the claimant, that the alleged prohibited amusement devices, the subject of the proceedings in the Gaming Tribunal, have been removed from the claimant's premises in Haberfield and will remain away from those premises until any further or other order of the Court of Appeal or a Judge of Appeal, order that the operation of the interim order made by the Gaming Tribunal on 25 February 1992 be stayed until 4.15 pm on Monday 9 March 1992 or until any other or further order is made by the Court of Appeal on that day; and (2) Liberty is reserved to the second opponent, or any representative of the second opponent, to approach the Court or a Judge of Appeal to re-list the proceedings upon one hour's notice to the claimant, delivered by facsimile to the solicitors for the claimant. I direct the Associate to give to counsel for the second opponent contact telephone numbers at which a Judge of Appeal may be contacted, upon one hour's notice at any time between now and next Monday, should re-listing be required to vacate the stay order above. The other orders are as earlier announced. 1. Upon the undertaking of counsel for the claimant, on behalf of the claimant, that the alleged prohibited amusement devices, the subject of the proceedings in the Gaming Tribunal, have been removed from the claimant's premises in Haberfield and will remain away from those premises until any further or other order of the Court of Appeal or a Judge of Appeal, order that the operation of the interim order made by the Gaming Tribunal on 25 February 1992 be stayed until 4.15 pm on Monday 9 March 1992 or until any other or further order is made by the Court of Appeal on that day; and WFRAFA HOLDINGS PTY LTD v THE GAMING TRIBUNAL AND ANOR [NO 2] (Kirby PB (2) Liberty is reserved to the second opponent, or any representative of the second opponent, to approach the Court or a Judge of Appeal to re-list the proceedings upon one hour's notice to the claimant, delivered by facsimile to the solicitors for the claimant. Counsel for the Claimant: M Ramage QC with C Steirn Solicitors for the Claimant: Messrs Andrews Counsel for the first Opponent: Submitting Appearance Solicitors for the first and second Opponent: HK Roberts, State Crown Solicitor Counsel for the second Opponent: M Sexton