CASTELLORIZIAN CLUB LTD v DIRECTOR OF LIQUOR AND GAMING and ANOR [1996] NSWCA 95

CASTELLORIZIAN CLUB LTD v DIRECTOR OF LIQUOR AND GAMING

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER and COLE JJA

3 April 1996, 7 June 1996

[1996] NSWCA 95

S17 and s79 Registered Clubs Act — Character of offences contemplated — grounds of complaint insufficient to make out alleged offence.

FACTS:

Whether the appellant, a registered club, could be asked pursuant to s17 of the Registered Clubs Act to show cause why its certificate of registration should not be cancelled because of an alleged breach of s79(5) of the Registered Clubs Act, 1976, which regulates the financing, keeping, manufacture and sale of poker machines.

HELD:

(1) By Cole JA, Meagher, Sheller JJA agreeing - the grounds of complaint contemplated by s17(1AA) are of a more serious character than those contemplated by a breach of s79(5).

(3) By Meagher JA, Sheller JA agreeing - The summons alleges non-payment within the contractual time which cannot constitute an offence under s79(5). Accordingly, it comes within s17(1AA)(e), power to dismiss a complaint that is frivolous. vexatious or not a proper ground of complaint.

ORDERS:

(1) Appeal allowed

(2) Order of Sully J of 19 May 1995 be set aside.

(3) Order dismissing the complaint be restored.

(4) Order that the appellant pay the respondent's costs of the appeal.

Meagher JA In this matter I have read in draft the judgment of Cole JA. The appeal must be allowed. I should merely like to add what in my opinion is an additional reason for reaching the same conclusion.

On 24 January 1995, the first respondent, Mr JJ Lynch, complained to the principal registrar of the second defendant, the Licensing Court of New South Wales, who issued a summons against the appellant requiring it to appear before the Licensing Court "to answer the above complaint and show cause why the Certificate of its Registration should not be cancelled in accordance with the provisions of the Registered Clubs Act 1976."