Buckley & Anor v Independent Liquor and Gaming Authority & Anor - [2016] NSWSC 1533 - NSWSC 2016 case summary — Zoe

NSWNSWSC

Buckley & Anor v Independent Liquor and Gaming Authority & Anor

[2016] NSWSC 1533

Supreme Court of NSW|2016-07-25|Before: Adams J, Mr J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-07-25

Before

Adams J, Mr J

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Background

The first plaintiff is the licensee of premises at 590 - 602 New Canterbury Road, Hurlstone Park known as "The Vegas Hotel" ("the Hurlstone Park premises"). The second plaintiff is the owner of commercial premises at 203 Beamish Street, Campsie to be known as the "The Station House Hotel" ("the proposed new hotel site").
On or about 12 February 2015, the first plaintiff made application to the Authority under s 59 of the Liquor Act 2007 (NSW) ("the Liquor Act") to move the hotel licence attached to the Hurlstone Park premises to the proposed new hotel site. If the application were granted, it was proposed that the second plaintiff would conduct the business pursuant to the hotel licence held by the first plaintiff. Although only the first plaintiff initially made application to the Authority, the second plaintiff was subsequently involved in the application process. I propose to refer to them collectively as "the plaintiffs" unless referring specifically to the first plaintiff.
The hotel licence at the Hurlstone Park premises has a GMT of 27 machines attached to it. This means that the first plaintiff is permitted to operate up to 27 gaming machines from premises pertaining to that hotel licence. It was proposed that 27 gaming machines would also operate at the new hotel site.
Section 59 of the Liquor Act is in the following terms: "59 Removal of licence to other premises (1) A licensee may apply to the Authority for approval to remove the licence to premises other than those specified in the licence. (2) An application for approval to remove a licence to other premises must: (a) be in the form and manner approved by the Authority, and (b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and (c) be advertised in accordance with the regulations, and (d) comply with such other requirements as may be approved by the Authority or prescribed by the regulations. (3) An application for approval to remove a licence to other premises is to be dealt with and determined by the Authority as if it were an application for the granting of a licence in respect of those other premises. Accordingly, the provisions of Division 1, in particular, extend to an application for the removal of a licence to other premises as if it were an application for a licence. (4) The Authority may refuse an application for approval to remove a hotel licence if the Authority is satisfied that the removal of the licence would adversely affect the interest of the owner or a lessee or mortgagee of the premises from which it is proposed to remove the hotel licence, or a sublessee from a lessee or sublessee of those premises. (5) The Authority must refuse an application for approval to remove a licence unless the Authority is satisfied that: (a) practices will, as soon as the removal of the licence takes effect, be in place at the premises to which the licence is proposed to be removed that ensure, as far as reasonably practicable, that liquor is sold, supplied or served responsibly on those premises and that all reasonable steps are taken to prevent intoxication on those premises, and (b) those practices will remain in place. (6) The regulations may provide additional mandatory or discretionary grounds for refusing to approve the removal of a licence. (7) The approval to remove a licence to other premises takes effect: (a) on payment to the Authority of the fee prescribed by the regulations, and (b) when the Authority endorses the licence to the effect that those other premises are the premises to which the licence relates." [emphasis added]

[2]

Material before the Authority on the applications

Three lever arch folders of material comprising 935 pages were tendered at the hearing of this matter, comprising all of the material that was before the Authority. Most of it was irrelevant to these proceedings for judicial review. Moreover, most of it was irrelevant to the limited basis upon which the Authority ultimately dealt with the applications. The Authority resolved these applications on a consideration of the threshold question as to whether the new hotel premises were in the "immediate vicinity" of "a school, place of worship or hospital" within the meaning of cl 36(2) of the GM Regulation. It is only the material considered by the Authority on this discrete issue that is relevant to these proceedings for judicial review.
There is no procedural requirement that all material before a decision-maker be before this Court for the purposes of judicial review. Indeed, as the Court of Appeal observed in Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173 at [18], "In general, the proposition that all the material before the administrator should be placed before the reviewing court must be rejected." In Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 at [60]-[70], Leeming and Simpson JJA had criticised the appellant for reproducing thousands of pages of documents at trial and on appeal, most of which were not relevant and necessary to the determination of the issues in dispute.
If it be agreed between the parties that the Court's attention need only be taken to discrete parts of the material, then the preferable course would be for an agreed bundle containing those documents to be tendered. In determining whether error of law on the face of the record has been established, this Court is confined to the reasons of the decision-maker in any event: s 69(4) of the Supreme Court Act. It is only if jurisdictional error is asserted that the Court is entitled to have regard to other material beyond the reasons.
It is not necessary to summarise all of the material placed before the Court on this application. As stated above, only a small part of it was relevant to my consideration and I was taken by counsel to those parts, being the material concerning the question of whether the proposed hotel site was in the "immediate vicinity" of a school, place of worship or hospital within the meaning of cl 36(2) of the GM Regulation. That material falls into two categories: material going to the question of how many school children would walk past the proposed new hotel site each day and material going to the physical distance between the proposed new hotel and Campsie Public.

[3]

Evidence of "foot traffic"

A submission dated 29 April 2015 was prepared by Back Schwartz Vaughan Lawyers on behalf of two of the plaintiffs' commercial competitors. One of the documents annexed to the lengthy submission, dated April 2015, has the sub-title "Assessment of gaming machine impacts". It was prepared by RM Planning, a planning consultant retained by the commercial competitors, in response to the community impact statement prepared by the plaintiffs. That report disclosed that its authors consulted with various "stakeholders". Some of the stakeholders who provided feedback were Ms Sarah Jones, Acting Principal of Campsie Public and Mr Steve Borthwick, Principal of St Mel's.
The report went on to summarise the feedback from Ms Jones. She described the rear of Campsie Public as being approximately 50 metres from the proposed new hotel site. Enrolment at Campsie Public is currently 771 students and draws mainly from Campsie. The school offers out of hours vacation care and is operational for most of the year. It closes for two weeks over Christmas. About 25% of pupils are estimated to walk past the proposed hotel site "on their way to or from school". This activity is concentrated between 8am and 9am and between 3pm and 6:30pm on school days. About 70 children are in after-school care and a bit less than that number is in before-school care. Hours are Monday to Friday 7am to 6:30pm.
The report went on to note that Ms Jones raised a number of specific concerns with the new hotel gaming room, including that the gaming room opens onto the street and could be seen by children walking past. Also, a bus stop outside the hotel means that children would sit there for a period of time and not just walk past momentarily.
The report goes on to note the feedback from Mr Borthwick in relation to St Mel's. At its closest point, that school is located 150 metres from the proposed new hotel site. There are currently 300 students enrolled at that school, about half of whom walk to and from school. About 25% of the students arrive and leave by car, 15% use the bus and 10% use the train. About 50% of students (150) would walk past the site of the proposed hotel "on their way to and from school." This is concentrated between 7am and 8:35am and between 3pm and 6pm on school days. The school offers after-school care until 6pm and up to 30 students use this service. It was noted that many of the students walk to and from school unattended and would walk past the premises.
The above feedback was summarised at the end of the RM Planning report in these terms: "Approximately 350 children will walk directly past the New Hotel both in the morning and again in the afternoon on their way to and from School. Many of these children are unaccompanied minors. The gaming room opens to the street and is on a very busy pedestrian thoroughfare. A busy major bus stop is directly outside the New Hotel. This means that persons including children would sit for a period of time waiting for a bus, which is more than just the momentary exercise of walking past the New Hotel."
The plaintiffs put before the Authority a report from Adam Purcell, a former police officer, responding to matters raised in the submission from Back Schwartz Vaughan. Mr Purcell noted that there are two primary schools near the proposed site of the new hotel; namely, St Mel's and Campsie Public. St Mel's faces onto Duke Street and Campsie Public faces onto Evaline Street. It is not necessary to walk or drive directly past the proposed new hotel site to reach either street.
On 7 September 2015, Mr Purcell made observations of children leaving those two schools. He noted that the vast majority of children were picked up by parents and either walked to residential areas in Campsie or were driven directly from the schools. He counted approximately 30 children from either school walking directly past the proposed new hotel site in South Parade and Beamish Street and noted "these are not significant numbers". He observed only one child to wait for a bus in South Parade in front of the proposed site. That child was in the company of an adult. Mr Purcell took two photographs of the bus stop, one at 3:16pm and the other at 3:28pm, showing no children and very few adults waiting for a bus.

[4]

Distance between the hotel site and Campsie Public

In submissions attached to the application to the Authority prepared by the plaintiffs' solicitors, it was submitted at [48] that: "In this case, the nearest part of the school grounds is a fenced section which is located approximately 30 metres from the edge of the rear loading dock of the proposed hotel on Beamish Lane. (There is no access to the hotel from Beamish Lane, except for loading)."
It was further submitted at [121], in response to the trade competitors' submission, that: "…it is sufficient to note that the fact that children of the school may pass by the hotel, or may catch buses at the bus stop outside the hotel, does not put thereby the hotel in the "immediate vicinity" of the Campsie Public School or of the Church…"
In response to concerns raised about the nearby schools and passing school-children, the following was submitted: "Firstly, the rear laneway (Beamish Lane) will not be used as an entry into the proposed hotel. Only the loading/unloading area of the hotel will be accessible from Beamish Lane."
It was further submitted that observations made by Mr Purcell show that some pupils from Campsie Public and St Mel's presently walk past the Oasis Hotel and Campsie Hotel in the after-school period. There is no evidence that this causes any difficulties for those pupils or exposes them to anti-social conduct.
Finally, it was noted both by Mr Purcell and Mr Smith that it is commonplace for hotels to be located on the high streets of the suburbs of Sydney and in country towns throughout New South Wales. Mr Smith cites a number of examples where hotels are located in close proximity to schools without causing any apparent issues.
The plaintiffs obtained a response to the report prepared by RM Planning on behalf of the plaintiffs' trade competitors in September 2015. That document was prepared by Design Collaborative Pty Limited. Under a heading "Schools and Churches in Campsie", it states that the distance from the nearest doorway of the public area of the proposed new hotel site on South Terrace to the closest corner of the school's grounds would be "over 70m". There is no line of sight between that doorway (or any part of the public areas of the house) and the school. The report goes on to state the following: "The school grounds extend along Beamish Lane to within about 30 metres of the closest part of 203 Beamish Street in which the House [i.e. the Station House Hotel] is located…A combination of fencing, buildings and other structures impair views from other parts of the school towards the House but parts of the upper floors of the building at 302 [sic] Beamish Street would remain visible…The only gateway to the school grounds off Beamish Lane provides access to a staff parking area. It is near Evaline Street. It is not used by pupils and is located close to 200 metres from the rear of the lot of which the House would be located and some 240 metres from the nearest doorway of the House."
A letter dated 25 March 2015 from the Campsie Licensing Police was also before the Authority. It described Campsie Public as being "almost directly behind" the proposed new hotel site. At that time, the proposed opening hours were to be 8am to 2am from Monday to Saturday. Police sought a condition that on school days the opening hours commence at 10am. The first plaintiff subsequently amended its application by letter dated 15 September 2015 such that the proposed opening hour of the hotel on weekdays would be 10am.
A subsequent letter to the Authority from Hatzis Cusack Lawyers dated 2 October 2015 annexed further plans and contained further submissions regarding the question of the meaning of "immediate vicinity." One of the plans attached shows the entrances to the proposed new hotel and demonstrates that the gaming machines would not be seen from the front door.

[5]

The reasons of the Authority

The applications were considered by the Authority at a meeting on 16 December 2015, at which time it determined to refuse the application to increase the GMT at the proposed new hotel site. Consistent with the first plaintiff's request that he did not wish to proceed with the removal application if the threshold increase application was not granted, the Authority did not go on to consider the merits of the removal application and instead deemed it to be withdrawn.
Section 36C of the Gaming and Liquor Administration Act 2007 ("the GLA Act") provides that the Authority is required to publish a statement of its reasons for decision. The sub-section provides: "(4) The statement of reasons is to include the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the decision-maker's understanding of the applicable law, (c) the reasoning processes that led the decision-maker to the conclusions that were made."
The Authority provided a statement of reasons for its decision of 16 December 2015 to the plaintiffs under a covering letter dated 10 March 2016.
The reasons of the Authority are lengthy. They comprise 57 pages and 255 paragraphs. The first 205 paragraphs of the reasons comprise a detailed summary of the material before the Authority relevant to both applications. Most of that material was not relevant to the threshold increase application. From paragraphs [206] - [219] the legislation relevant to the threshold increase application is extracted.
At [220] - [222] of the reasons, the Authority notes its decision to refuse the threshold increase application on the basis that the proposed new hotel site is situated in the "immediate vicinity" of Campsie Public within the meaning of cl 36(2) of the GM Regulation. The reasons go on to state at [223]: "This conclusion has been reached primarily on the basis of the close physical proximity of the Proposed Premises to the Campsie Public School. This is evident from the Google Map of the site and the submission provided by the consultant, RM planning indicating that the Proposed Premises is located less than 50 metres away from the playground of the Campsie Public School. The Authority also gives weight to the local knowledge of Police who have advised that "almost directly behind the ["Proposed Premises"] is Campsie Public School"."
The relevant authorities are then set out at [224] - [231] of the reasons. The Authority noted that there are no binding superior court authorities concerning the interpretation of cl 36(2) of the GM Regulation, but that there are a number of decisions concerning the phrase "immediate vicinity" under other licensing legislation in New South Wales. Reference is then made to the decision of Hoeben J (as his Honour then was) in Hinton v Lane [2009] NSWSC 37 as well as the decisions in Dean v Lewitz (1958) 76 WN (NSW) 349; Ex Parte Godkin; Re FitzMaurice (1969) WN (NSW) 159: Ex parte Paton (1929) 30 SR(NSW) 67; Mullens v Norton [1938] VLR 292; MacPherson v Invercargill Licensing Trust [1944] NZLR 692; and R v Minister for Health; Ex parte Tillys Pty Ltd [1967] WAR 60 at [63].
The reasons discuss the relevant principles arising from the above decisions, noting at [236] - [237]: "The Authority notes that the GM Act and the GM Regulation do not include any particular requirement as to the visibility or otherwise of gaming machines with respect to any school, place of worship or hospital when assessing whether or not a licenced premises is in the immediate vicinity of such facilities. Some of the liquor licensing cases noted above indicate that primary decision-makers may have regard to such factors as the visibility of the premises, or whether students or worshippers must walk past the relevant venue in reaching a conclusion on immediate vicinity in a particular factual context."
The reasons then go on to state at [240]: "Similarly, the precise distance between licensed premises and a school, place of worship or hospital will not in itself be determinative. For example, in Godkin, the mere fact that the licensed premises and the place of worship adjoined one another at one point was held not to preclude the decision maker from determining that the two premises were not in the immediate vicinity of one another". [emphasis in original]
After referring to the emphasis in the applicant's submissions on the fact that neither the hotel nor the gaming machines would be visible from the school, the reasons note that the GM Act and GM Regulation require that a gaming area not be visible from the street in any event and at [245]: "That being the case, the visibility of a licensed venue from a school, place of worship or hospital is less likely to be decisive in the interpretation of "immediate vicinity" in the context of the GM Act and GM Regulation than it is in the context of interpreting liquor licensing legislation more broadly."
The remaining reasons dealt with the Authority's consideration of the threshold increase application: "[246] The Applicant has argued that it is not open to the objectors to refer to school children having to walk past the Proposed Premises or when frequenting a bus stop located across the road from the Proposed Premises when assessing immediate vicinity. [247] However, the case law referred to above indicates that on occasion primary decision-makers have permissibly had regard to considerations such as the fact that students or worshippers must walk past the licensed venue in reaching a conclusion on "immediate vicinity". [248] The Authority accepts the assessment made by RM Planning that "approximately 350 children walk directly past the New Hotel both in the morning and again in the afternoon on their way to and from school" and that the "busy major bus stop" directly outside the Proposed Premises "means that persons including children would sit for a period of time waiting for a bus, which is more than just the momentary exercise of walking past the New Hotel". [249] Those observations may include reference to children from the Campsie Public and St Mel's Catholic School, but these credible expert observations reinforce, in a practical sense, the close proximity of the Proposed Premises to the Campsie Public school which, as observed by Police, is located at the back of the hotel. [250] The Authority has considered an assessment prepared by Design Collaborative, a planning consultant engaged by the applicant dated September 2015 which states that the "nearest doorway" of the "public areas" of the Proposed Premises on the South Terrace to the "closest corner" of the Campsie Public School's grounds "would be over 70 metres" and that there is "no line of sight between that doorway" or any part of the public areas of the Proposed Premises and the School. [251] While the Authority also accepts this assessment as a credible, expert assessment, that analysis seem somewhat artificial when the fact is that the school yard, a part of the Campsie Public School that is likely to be routinely occupied, is only 50 metres away, behind the hotel. [252] In the context of this suburban setting, which is neither a high density inner city location nor a country town, the Authority is satisfied that a distance of between 50 and 70 metres between the two premises is, on the evidence and material before the Authority, sufficiently close to find that the Proposed Premises is within the "immediate vicinity" of the Campsie Public School, particularly when considered in the context of the foot traffic referred to above." [emphasis added]
The reasons conclude by noting at [254] that in the circumstances the removal application is deemed to be withdrawn pursuant to s 45(2) of the Liquor Act.

[7]

Meaning of "immediate vicinity"

The Authority refused the threshold increase application because it was satisfied that the hotel premises in which the machines would operate was "situated in the immediate vicinity of a school, place of public worship or hospital" within the meaning of cl 36(2) of the GM Regulation. That phrase is not defined in either the GM Act or the GM Regulation. Nor has the meaning of cl 36(2) of the GM Regulation been judicially considered. Despite this, the phrase "immediate vicinity" appears in a similar context in other legislation dealing with the operation of licensed premises and has been judicially considered in that context. There was no dispute as between the parties as to the applicability of the principles gleaned from those cases; the plaintiffs' complaint is that they were not properly applied in some significant respects. It is convenient to consider the relevant authorities concerning "immediate vicinity" before turning to consider each of the four grounds of review.
In Ex parte Paton, application had been made for removal of a liquor licence under the Liquor Act 1912 (NSW). That Act required approval if the new location would be "in the immediate vicinity of a place of public worship". The judgment of Ferguson ACJ, with whom James J concurred, dealt with the test in these terms (at 70): "It appears that the premises are about eighty yards from St Stephen's Church on the other side of the road. I think it is impossible to say as a matter of law that a place at that distance must be held to be in the immediate vicinity of the church. I can conceive of cases where any other finding would be obviously unreasonable; I can conceive of other cases where I think it would be equally unreasonable to hold that it was in the immediate vicinity. A place eighty yards from a church, in another street for example, might be practically so far removed that no single worshipper would ever be aware of its existence."
Dean v Lewitz was a case stated to this Court from the Licensing Court. The distance between the proposed hotel and a church was again 80 yards. Ferguson J held that the visibility or otherwise of the licenses premises is a relevant consideration in determining "immediate vicinity". His Honour observed at 351 that "…the inference is irresistible that the purpose that the legislature sought to achieve was to protect persons resorting to those institutions from annoyance, nuisance and possible objectionable influences." His Honour concluded: "With a public house within easy sight or hearing worshippers might well be offended, the sick disturbed or schoolchildren corrupted. If such consequences are unlikely to flow by reason of the fact that the hotel, though in close proximity to a specified institution, is situate so as to be out of sight or hearing, that is a factor, it seems to me material to be considered on the question of whether it is in the immediate vicinity of such institution within the meaning of the Act."
In Ex parte Godkin; Re Fitzmaurice, the Court of Appeal held that the fact that there was a common boundary between hotel premises and a citadel in the centre of the Salvation Army building could not of itself lead to the conclusion that the place of worship must be in the immediate vicinity of the hotel.
In Hinton v Lane, Hoeben J observed at [33]: "What is within the "immediate vicinity" will vary according to the context. What might be regarded by the Board as the "immediate vicinity" in a sparsely populated country town will be different when considering a densely populated area of the CBD dominated by tall buildings? The Board as a specialist tribunal must take into account the neighbourhood as a whole. In this case a matter which the Board may have taken into account was the fact that the plaintiffs' competing licensed premises physically adjoined the church in question."
The Authority referred to the case of Mullens v Norton in which Lowe J of the Supreme Court of Victoria observed the following in relation to the phrase "immediate vicinity" for the purposes of the Licensing Act 1928 (Vic) at 295: "An examination of the Act fails to reveal any clear indication of the purpose sought to be achieved by these words ["immediate vicinity"] and we are, therefore, thrown back upon their meaning simply as English words in the context used. Etymologically "immediate" means "not mediate" and indicates that there is nothing "intermediate" between the objects to which the adjective relates. But the notion of several vicinities one of which is immediate to an object and the other or others not immediate, i.e., severed from the object by one or more intermediate vicinities, much in the way that the various rings surround the centre of a target, is a highly artificial one, and one which it is difficult to attribute to the Legislature. There is, on the other hand, a perfectly well known use of the word "immediate", in relation to place, to indicate "something of little importance". The Oxford English Dictionary gives "Immediate…3…In reference to place often used loosely of a distance which is treated as of no account". In my judgement that is the meaning to be attached to the word in sec. 98 of the Licensing Act. "In the immediate vicinity" therefore simply means "very near". The determination of the question is consequently one of fact in every case. If there is evidence upon which reasonable men might come to the conclusion challenged and the Licensing Court has not misdirected itself that conclusion will not be disturbed by this Court."
The Authority also referred to the New Zealand decision of MacPherson v Invercargill Licensing Trust, a decision of the Supreme Court of New Zealand, where Kennedy J observed at 694: "The proposed site is not within 300 yards of the nearest point of the grounds of the Southland Girls' High School. It is not in the immediate vicinity of a school. A large number of persons expressed the opinion that it was undesirable for the pupils of the Intermediate School and later of the Southland Girls' High School to pass, as they would, the Rugby Park site. This objection is not one which can be considered as a distinct objection as it is not within the terms of the statute. The relevant objections are that the proposed site is in the immediate vicinity of a school, and that the proposed hotel will disturb the quiet of the neighbourhood and that it is not there required, and this particular objection must be considered only in so far as it throws light upon the statutory grounds of objection."
In R v Minister for Health; Ex parte Tillys Pty Ltd [1967] WAR 60 at [63] Neville J observed that: "…the question whether one place is in the immediate vicinity of another is a matter of fact in all the circumstances in which the question arises and a matter of opinion on which in many circumstances different minds may reasonably reach different conclusions. It is at the most a question of mixed fact and law, and a matter on which no court should interfere with the decision of the authority in which is vested the duty of first determining the matter if the authority acted in good faith and the decision was one which could reasonably have followed from the proved or admitted facts."
The Authority sought to distil a number of principles from the above decisions at [232] - [240] of the reasons, which may be summarised as follows: 1. The question is one of fact for the decision-maker, in this case the Authority, to determine in all of the circumstances of each case. 2. The words "immediate vicinity" should be interpreted having regard to their ordinary English meaning and in the statutory context in which they appear. 3. The decision is a matter for the Authority reasonably to determine on the evidence or material before it. There is no fixed maximum distance, beyond which one place is not in the "immediate vicinity" of another. 4. The GM Act and GM Regulation do not include any requirement as to visibility of gaming machines with respect to any school, place of worship or hospital when assessing whether or not a licensed premises is in the immediate vicinity of such facilities. 5. The Authority may have regard to the visibility of the premises or whether students or worshippers must walk past the relevant venue. In Ex Parte Paton, the awareness of worshippers as to the existence of the licensed venue was a matter that could be taken into account by the decision-maker. In Dean v Lewitz, it was held that it was relevant whether the licence premises could be seen from a church and whether the church's activities could be interfered with by noise or nuisance. 6. The precise distance between licensed premises and a school, place of worship or hospital will not in itself be determinative. In Ex parte Godkin; Re Fitzmaurice, the fact that premises shared a common boundary did not preclude the decision-maker from determining that the two premises were not in the immediate vicinity of one another.

[8]

The grounds of review

These are proceedings for judicial review of the decision of the Authority. This Court is not considering the merits of the decision. The Supreme Court exercises supervisory jurisdiction over administrative decisions-makers, such as the Authority, to ensure that decisions are made according to law.
It is relevant that the plaintiffs do not have a statutory right of appeal against the decision of the Authority, or a right to seek merits review. Section 13A of the GLA Act provides that an applicant who is aggrieved by a decision of the Authority in relation to a "prescribed application" may apply to the NSW Civil and Administrative Tribunal ("NCAT") for administrative review. An application under s 34 of the GM Act to increase a GMT that is not required to be accompanied by a local impact assessment ("LIA") (as in the present case) is not the subject of a right of administrative review. [1]
In order to be entitled to the relief sought, the plaintiffs must establish jurisdictional error, or error of law on the face of the record. The first ground asserts legal unreasonableness and/or inadequacy of reasons; the second ground asserts that the Authority took into account an irrelevant consideration and in doing so acted irrationally; the third ground contends that the Authority failed to take into account a relevant consideration; and the fourth ground asserts that the Authority took into account another irrelevant consideration.
Failure to provide adequate reasons when there is a statutory requirement to do so may amount to error of law on the face of the record. As the High Court observed in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; 88 ALJR 52, [2013] HCA 43, when considering a decision on a Victorian statute that required a medical panel to give reasons (at [55]): "The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
Failure to take into account a relevant consideration or taking an irrelevant consideration into account may be jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. Such an error may be described as a constructive failure to exercise jurisdiction. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, Gaudron J explained this at [41] as follows (footnote omitted): "…..there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account."
Jurisdictional error may also be disclosed if a decision maker acts unreasonably. As Hayne, Kiefel and Bell JJ observed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at 365: "The more specific errors in decision-making, to which the courts may refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another"…Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense."

[10]

The plaintiffs' submissions

Mr Muddle for the plaintiffs submitted that the basis of the Authority's finding at [248] that "approximately 350 children walk directly past the New Hotel both in the morning and again in the afternoon on their way to and from school" was not clear.
In particular, he referred to the "highly probative evidence" from former police officer Mr Purcell to the contrary, which was not mentioned at all by the Authority. His evidence was that on the occasion when he was outside the proposed new hotel site he only counted 30 students on their way home from school in the afternoon. It was submitted that the Authority should have referred to this material and provided reasons as to why that evidence was rejected in favour of the evidence concerning 350 students walking by each day.
The plaintiffs relied upon the decision of the Court of Appeal in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 ("Zahed") and the statements of principle in that case. That decision concerned the adequacy of reasons by an Assessor under the Motor Accidents Compensation Act 1999 (NSW). The Court was satisfied that inadequate reasons had been provided. As to the contents of reasons, Leeming JA observed at [9]: "The reasons need not be long. Indeed, there will be many cases, of which I suspect this is one, where a single sentence would suffice. But to say merely that all of the conflicting evidence was taken into account is, in the facts of this case, insufficient. The matter may be tested against the parties' rights of review: how are the parties to know whether the reasoning is affected by judicially reviewable error of law?"
Emmett AJA observed at [34]: "The statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law: see Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480 at [55]."
His Honour concluded by observing at [42]: "It is not possible to discern from the Assessor's reasons the actual path of reasoning by which he arrived at the result stated in the Assessment. It does not explain the actual path of reasoning in sufficient detail to enable a court to determine whether his decision does or does not involve an error of law. The Assessor did not comply with the requirement of s 94(5) that he set out his reasons for the Assessment."
Mr Muddle also placed reliance upon s 36C(4) of the GLA Act as to what the reasons must include and submitted that the Authority had failed to comply with that sub-section. Mr Muddle accepted that if the Authority had explained its reasoning and then concluded that it preferred the evidence of the school principals over that of Mr Purcell, there would have been no objection. But the Authority did not do that. It was a material question of fact requiring an explicit factual finding.

[13]

Consideration - Ground 1

This ground concerns the adequacy of the Authority's reasons for concluding that "approximately 350 children walk directly past the New Hotel both in the morning and again in the afternoon on their way to and from school." The question for determination is whether the Authority complied with its statutory obligation under s 36C(4)(a) of the GLA Act to include in its reasons "the findings on material questions of fact, referring to the evidence or other material on which those findings were based." A similar obligation is also to be found in UCPR 59.9(3) upon request by a plaintiff in judicial review proceedings in which the defendant is a public authority.
The second defendant does not contend that the Authority disclosed its reasoning for preferring the evidence of the school principals, contained in the RM Planning report, over the observations of Mr Purcell. Rather, it was contended that there was no need to refer to Mr Purcell's evidence because it was "slight"; it was not in direct conflict with the other evidence; and the plaintiff did not put the issue in dispute in its submissions before the Authority. In short, the second defendant's position was that the finding regarding the foot traffic of 350 children was not a finding on a material question of fact.
I am satisfied that the factual finding regarding how many school children walked past the premises daily was a material question of fact upon which the Authority made its determination.
The plaintiffs' threshold increase application was dismissed because a mandatory requirement of the GM Regulation had not been met; namely, that the licensed premises to which the GMT attaches not be in the "immediate vicinity" of, inter alia, a school. This preliminary finding meant that there was no consideration of the merits of the threshold increase application or, indeed, the merits of the removal application itself. In those circumstances, the question of whether the premises in which the gaming machines would be operated would be in the "immediate vicinity" of Campsie Public became one of some significance. The importance of the impugned evidence that 350 children walked past the proposed new hotel site every morning and afternoon is to be viewed in that context.
The Authority concluded (at [252]) that the proposed new hotel site was in the "immediate vicinity" of Campsie Public because, in the context of its suburban setting, a distance of 50 to 70 metres was "sufficiently close to find that the Proposed Premises is within the "immediate vicinity" of Campsie Public, particularly when considered in the context of the foot traffic referred to above" [emphasis added].
The reasons disclose that the Authority accepted that there was no line of sight between the school and the proposed new hotel site and that the premises were as far as 70 metres away. The reasons from [246] to [252] do not disclose that any other matter (besides the actual distance between the school and the proposed hotel site, which is considered further below under Ground 3) was taken into account by the Authority in reaching its decision; in this sense, it was a significant part of the final decision. To put it another way, if the question of foot traffic is taken away from the reasons for the ultimate decision, then the only remaining factor is the distance itself. The relevant authorities, which were not in dispute at the hearing, state that the question of "immediate vicinity" is not merely a matter of distance.
The Authority had before it conflicting material as to the amount of foot traffic from children walking past the proposed new hotel site. On the one hand, Ms Jones and Mr Borthwick provided the RM Planning report writer with estimates of what percentage of their respective school students would walk to and from school past the proposed new hotel site. On the other hand a former police officer, Mr Purcell, had gone to the site of the hotel and made observations that significantly fewer school children walked past the site or waited for the bus outside. This conflicting material was all before the Authority.
The RM Planning Report appears to have arrived at the number of 350 children by adding together the information provided by Ms Jones and Mr Borthwick: Ms Jones stated that 25% of the 771 students at Campsie Public would walk past the proposed new hotel site either on their way to or from school (it is unclear whether Ms Jones meant that this figure of 192 in total meant 96 students walked by in the morning and another 96 walked by in the afternoon totalling 192). Mr Borthwick stated that 50% of the 300 students from St Mel's would walk past the venue both to and from school (150). The total is therefore 342. No other figures were provided. It seems that RM Planning arrived at a figure of 350 by rounding up the total of the two estimates. The RM Planning Report did not address why Ms Jones' use of the word "either" somehow morphed into the word "both" nor why the number of 342 was rounded up. The Authority accepted this number as being based on "credible expert observations". Nor, for that matter, did the Authority explain in its reasons why the number of schoolchildren walking past the proposed new hotel site in the morning, at which time the premises would be closed, could impact on the statutory test of "immediate vicinity".
I accept that it would have been open to the Authority to prefer the estimates made by Ms Jones and Mr Borthwick over the direct observations of Mr Purcell. It would have been open to the Authority to have weighed the competing material and concluded that Ms Smith and Mr Borthwick would be in a better position to estimate what percentage of school children from their respective schools would walk by the proposed new hotel site each day than a person who made the observations on only one occasion after school.
I further accept that, in its submissions to the Authority, the plaintiffs' lawyers focused upon the relevance of foot traffic per se rather than challenging the evidence of the two school principals in the RM Planning report. The plaintiffs' submission to the Authority was in terms that they should not take the foot traffic into account. Although the plaintiffs did not expressly dispute the amount of foot traffic in their submissions, they did rely upon the conflicting evidence from Mr Purcell that was before the Authority.
Although the decision of the Authority as to "immediate vicinity" was an evaluative assessment based upon all of the material before it, the only matters to which it refers in its reasons as going to that finding were physical distance and the number of children who would walk by the proposed new hotel site. The Authority clearly placed weight on the amount of foot traffic, which was the subject of inconsistent evidence. In those circumstances, I am satisfied that the plaintiffs were entitled to know why the Authority rejected the evidence of Mr Purcell on this issue. To a lesser extent, they were also entitled to know why the "credible expert observations" noted by RM Planning, based upon what the author of that report was told by Ms Jones and Mr Borthwick, led to an assertion that 350 pupils walked directly past the proposed new hotel site "both in the morning and again in the afternoon on their way to and from school".
I have had regard to the well-established principles that the reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons are meant to inform and are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-2. Despite this, s 36C of the GLA Act mandated that the statement of reasons of the Authority include "the findings on material questions of fact, referring to the evidence or other material on which those findings were based."
The Authority's statement of reasons was very lengthy, but the discrete portion of it that disclosed any actual path of reasoning concerning the material fact of how many schoolchildren walked past the proposed hotel site was not. Most of the reasons comprised a detailed summary of material that was completely irrelevant to the Authority's decision to refuse the GMT increase. The adequacy of reasons is to be assessed by regard to their quality rather than their quantity.
I am satisfied that the failure to explain the process of reasoning that led the Authority to conclude that 350 school students walked past the proposed new hotel site in the morning and again in the afternoon discloses an error of law on the face of the record: Wingfoot Australia Partners Pty Ltd v Kocak at [55].
The plaintiffs have established the first ground of review.

[17]

Consideration - Ground 2

When the first plaintiff lodged the threshold increase application, it was required to provide a map indicating the location of any "school, place of public worship or hospital within 200 metres of the venue." The map provided by the plaintiff included three churches and two schools: Campsie Public and St Mel's. When the Authority came to make its decision it confined its determination to the proximity of the proposed venue to Campsie Public.
The Authority concluded at [248] that it accepted "the assessment made by RM Planning that 'approximately 350 children walk directly passed the New Hotel both in the morning and again in the afternoon on their way to and from school.'" The complaint made is that, as 25% of 771 students is approximately 192 students, not 350 students, it is implicit that the Authority also relied upon the foot traffic from students at St Mel's.
The reasons of the Authority make it clear that the finding regarding the 350 children was not an oversight on its part, observing at [249] that: "Those observations may include reference to children from the Campsie Public and St Mel's Catholic School, but these credible expert observations reinforce, in a practical sense, the close proximity of the proposed premises to the Campsie Public school which, as observed by police, is located at the back of the hotel."
The reasoning of the Authority in this respect is somewhat difficult to glean. The Authority found that the fact that students from St Mel's walked past the venue was relevant to the statutory test of whether the proposed hotel site was in the "immediate vicinity" of Campsie Public in that it reinforced "in a practical sense" that this was so.
I am unable to accept Mr Emmett's submission that the Authority did not place any great weight on this finding or his submission that the Authority did not make any illegitimate use of the foot traffic from students at St Mel's. On the contrary, as I have concluded above under Ground 1, beyond the question of the actual distance between Campsie Public and the proposed new hotel site (in the context of the density of the suburb), the only other bases expressed in the reasons for finding that Campsie Public was in the immediate vicinity of the proposed venue was the foot traffic. It was thus of some significance.
I accept the submission made on behalf of the second defendant that it may well have made no difference to the outcome whether the foot traffic was of 192 or 350 students. Despite this, the Authority could have limited its finding to the former of these numbers and it did not. It expressly found that the foot traffic from St Mel's reinforced "in a practical sense" its finding that Campsie Public was in the immediate vicinity of the proposed venue. Although, as Hoeben J observed in Hinton v Lane at [33], the Authority is a specialist tribunal that must take into account the neighbourhood as a whole, the nature of the material upon which it relies must still have the capacity to be relevant to the statutory test.
I am satisfied that the Authority erred in taking into account an irrelevant consideration, namely the foot traffic from St Mels, in making its finding that Campsie Public was in the immediate vicinity of the proposed venue. In doing so it fell into jurisdictional error. The plaintiffs categorised this error as legal unreasonableness. To the extent necessary I am also satisfied that the error identified could be categorised as a finding that the Authority acted illogically or irrationally such as to make that finding unreasonable.
Ground 2 is also established.

[19]

The plaintiffs' submissions

Mr Muddle submitted that, in reaching its decision regarding proximity, the Authority erred in only having regard to the straight line distance between the boundaries of the respective parcels of land rather than the statutory question of whether the licensed area within that building site was in the "immediate vicinity" of the proposed new hotel site.
The Authority at [251] made reference to Campsie Public being only "50m away behind the hotel". The Authority then concluded at [252]: "The Authority is satisfied that a distance of between 50 and 70 metres between the two premises is sufficiently close to find the premises in the immediate vicinity, particularly when considered in the context of the foot traffic referred to above."
It was submitted to the Authority that the part of the building in which the licensed area would be was furthest away from the school. The Authority did not address this issue. It treated the entire parcel of land as being the licensed premises. There was to be a considerable masonry construction between the school and the licensed area in the form of that part of the proposed new hotel site that was not proposed to be licensed.
It was submitted that the Authority failed to consider the proximity of that part of the building proposed to be licensed as opposed to the boundary itself. The evidence was that the distance from the rear boundary of the lot where the licensed premises were proposed to be to the entrance to the school was 200 metres. The distance between the entrance to the school and the entrance to the proposed licensed premises in South Parade would have been even more.
Mr Muddle relied upon the fact that the relevant authorities support a proposition that line of sight visibility is highly relevant to the question of "immediate vicinity". He did not challenge any of the recitation of the relevant law as set out in the reasons. Rather, he submitted that it was misapplied by the Authority. The Authority accepted the 50 metre distance from an unlicensed part of the premises of the land and used that distance for the purposes of the "immediate vicinity" test, when the case law shows that the statutory test of "immediate vicinity" is one of perception and risk of impact on schoolchildren or worshippers in some other way.

[21]

Consideration - Ground 3

Determination of this ground turns on whether the Authority erred in failing to have regard to the distance between Campsie Public and that part of the proposed new hotel site that would be licensed as opposed to the premises per se.
The relevant statutory test the Authority was considering was whether the "premises of a…new…hotel…are situated in the immediate vicinity of a school, place of public worship or hospital". The word "hotel" is defined in s 4 of the GM Act as having the same meaning in the Liquor Act. Section 4 of the Liquor Act defines "hotel" as meaning "the premises to which a hotel licence relates." The Authority was thus considering whether the premises to which the hotel licence relates were in the immediate vicinity of Campsie Public.
The Authority's conclusion regarding "immediate vicinity" was reached "primarily" on the basis of the "close physical proximity" of the proposed premises to Campsie Public (at [223]). On this basis, the finding as to distance is of significance. In reaching this finding as to actual distance, the Authority relied upon the following material: 1. The Google map of the site (at [223]); 2. The submission provided by the consultant, RM Planning, "that the Proposed Premises are [sic] located less than 50m away from the playground of Campsie Public" (at [223]); 3. Local knowledge of police that "almost directly behind the ["Proposed Premises"] is Campsie Public School" (at [223]) (see Ground 4); 4. The assessment prepared by the applicant's planning consultant that the "'nearest doorway' of the public areas of the Proposed Premises on the South Terrace to the 'closest corner' of the Campsie Public School's grounds 'would be over 70 metres' and that there is 'no line of sight between that doorway' or any part of the public areas of the Proposed Premises and the School" (at [250]); 5. That the school yard of Campsie Public "that is likely to be routinely occupied" is only 50 metres away from hotel (at [251]); and 6. The context of the "suburban setting, which is neither a high density inner city location nor a country town" (at [252]).
Based on the above material, the Authority concluded that a distance of "between 50 and 70 metres between the two premises is, on the evidence and material before the Authority, sufficiently close to make a finding that the Proposed Premises is within the 'immediate vicinity' of Campsie Public School, particularly when considered in the context of the foot traffic referred to above" (at [252]).
The Authority was considering the phrase "immediate vicinity" in its statutory context and in light of the relevant authorities summarised above. Those authorities show that the meaning of the phrase involves an evaluative exercise upon which reasonable minds may differ. This Court is exercising its supervisory jurisdiction, not determining the merits of the Authority's decision. The plaintiffs must establish either jurisdictional error or error on the face of the record in the way in which the Authority assessed the distance of 50 to 70 metres as set out above.
The finding of the Authority, based on undisputed evidence, was that the school was in the street behind the proposed new hotel site and not visible from the hotel. The Authority had regard to this. I have had regard to the Google map relied upon by the plaintiffs, which shows that the licensed part of the premises was not at the rear of the site. The Authority did not suggest that it was. The Authority expressly referred to the evidence of the plaintiff's expert that the "'nearest doorway' of the 'public areas' of the Proposed Premises on the South Terrace to the 'closest corner' of the Campsie Public School's grounds would be over 70 metres' and that there is 'no line of sight between that doorway' or any part of the public areas of the Proposed Premises and the School".
The Authority's reasoning towards the findings regarding physical distance is apparent. I am not satisfied that, by having regard to the lot boundary rather than the distance to the licensed premises, the Authority fell into error. The Authority referred to the material before it and was clearly aware of the relevant distances. The finding of the Authority as to the test of "immediate vicinity" based "primarily" upon physical proximity is one upon which minds may differ, especially given the material concerning lack of visibility of the proposed hotel from Campsie Public, but this Court's role is to assess the legality of the decision and not its merits. The Authority could have placed more significance on the fact that the relevant distance to the licensed premises was greater than that to the lot boundary, but it did not. Neither jurisdictional error nor error of law on the face of the record is disclosed in the manner in which the Authority assessed the physical proximity from the venue to the school.
Ground 3 is not established.

Parties

Applicant/Plaintiff:

Buckley & Anor

Respondent/Defendant:

Independent Liquor and Gaming Authority & Anor

Legislation Cited (11)

Gaming and Liquor Administration Regulation 2016(NSW)

Gaming Machines Regulation 2010(NSW)

Liquor Act 1912(NSW)

Suitors Fund Act 1951(NSW)

Licensing Act 1928(Vic)

Gaming and Liquor Administration Regulation 2008(NSW)

Gaming Machines Act 2001(NSW)

Liquor Act 2007(NSW)

Motor Accidents Compensation Act 1999(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Supreme Court Act 1970(NSW)

Cases Cited (16)

Judgment

The plaintiffs seek judicial review of the decision of the Independent Liquor and Gaming Authority ("the Authority") on 17 December 2015 refusing an application to increase a gaming machine threshold ("GMT") at licensed premises as part of a primary application to remove a hotel licence from one venue to another. The threshold increase application was refused on the basis that the hotel in which the gaming machines would operate would be in the "immediate vicinity" of a primary school.
The plaintiffs seek an order in the nature of certiorari quashing the decision of the Authority, as well as declaratory relief. The plaintiffs invoke this Court's supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW) and claim that jurisdictional error, or in the alternative error on the face of the record, can be demonstrated such as to warrant the relief sought.
The Authority has filed a submitting appearance in these proceedings save as to costs. The Court was initially left with no contradictor. In light of this, the Secretary of the Department of Justice ("the second defendant") applied pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") to be joined as a party or, in the alternative, to appear at the hearing on an amicus curiae basis. The government department of which the second defendant is the head has responsibility for the administration of liquor and gaming legislation in New South Wales.
On 10 June 2016, Button J ordered that the second defendant be joined as a defendant in the proceedings: Buckley v Independent Liquor and Gaming Authority [2016] NSWSC 760.

(1997) 48 NSWLR 430

(1986) 162 CLR 24

Cited By (2)

George Thomas Hotels (Campsie) Pty Limited & Anor v Independent Liquor and Gaming Authority & Anor

George Thomas Hotels (Campsie) Pty Ltd & Anor v Station House Campsie Pty Ltd & Ors