McHugh Holdings Pty Limited v Peter Ashton & Anor [2007] NSWSC 118

New South Wales Supreme Court

CITATION : McHugh Holdings Pty Limited v Peter Ashton & Anor [2007] NSWSC 118

HEARING DATE(S) : 23/02/2007

JUDGMENT DATE : 1 March 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The decisions made by the Tribunal are set aside. The matter is remitted back to the Liquor Administration Board of New South Wales for re-determination. I make no order as to costs.

CATCHWORDS : Approval of Social Impact Assessment - power exercisable upon satisfaction of threshold requirements - this satisfaction involves a fact finding process and not the exercise of a discretion - self-exclusion scheme and utility.

Gaming Machines Act 2001(NSW) LEGISLATION CITED : Liquor Act 1982 (NSW) Supreme Court Act 1970 (NSW)

CASES CITED : Craig v State of South Australia (1995) 184 CLR 163

McHugh Holdings Pty Limited PARTIES : Peter Fredrick Ashton The Liqour Administration Board of New South Wales

FILE NUMBER(S) : SC 30104/06

COUNSEL : Mr K. Smark (Pl) Ms R. Pepper (Attorney General appearing as amicus curiae)

SOLICITORS : Bruce Stewart Dimarco Solicitors (Pl) Crown Solicitor (Def's)

LOWER COURT JURISDICTION : Liquor Administration Board of New South Wales

LOWER COURT FILE NUMBER(S) : 104448

LOWER COURT JUDICIAL OFFICER : Mr Ashton

LOWER COURT DATE OF DECISION : 30/03/2006

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

1 MARCH 2007

30104/06 McHugh Holdings Pty Limited v Ashton & Anor

JUDGMENT 1 HIS HONOUR: The plaintiff is the owner of the Columbian Hotel (which is located at Darlinghurst). The plaintiff was desirous of keeping, using and operating fifteen additional approved gaming machines in the hotel. In September 2002, a Class 2 Social Impact Assessment was lodged for approval by the second defendant pursuant to section 37 of the Gaming Machines Act 2001 (NSW) (the Act). A delay and legislative changes saw the lodging of a supplementary Social Impact Assessment (the Assessment) in November 2004. 2 The Liquor Administration Board of New South Wales is constituted by provisions of the Liquor Act 1982 (NSW). It has functions under the Act. One of the functions is the determination of a Social Impact Assessment pursuant to s37. 3 The objects of the Act are set forth in s3 (gambling harm minimisation and responsible gambling conduct are primary objects). 4 Part 2 of the Act limits the number of gaming machines that may be allocated to hotels and registered clubs (the maximum number of approved gaming machines that the Board may authorise to be kept in any one hotel is thirty). The plaintiff has fifteen gaming machines. It was seeking to have a maximum allocation. 5 The Assessment was the subject of the application for the additional fifteen gaming machines. The Act provides that such an application cannot be granted unless the Board has approved the Assessment. 6 Section 37 contains the following:- "(3) The Board may approve the social impact assessment only if the Board is satisfied that: (a) the social impact assessment complies with the requirements of this Division and the regulations in relation to the social impact assessment, and (b) the social impact assessment has demonstrated that the gambling activities involving approved gaming machines in the hotel or club concerned will be conducted in a responsible manner, and (c) in the case of an application involving a new hotel or new club—there is no school, place of public worship or hospital in the immediate vicinity of the hotel or club, and (d) in the case of a class 2 social impact assessment—the overall economic and social impact of granting the application will not be detrimental to the local community." 7 The assessment was reviewed (by Dr Judith Stubbs of Judith Stubbs & Associates). This took place in May 2005. The reviewer did not recommend approval. In November 2005, a reply was made to the review.