Cozanitis v Independent Liquor and Gaming Authority

The Hotel

1. The Homebush Hotel is a pub operating from the ground floor of a nine-floor residential tower. Sixty-three apartments are housed in the tower about the Hotel. Patrons of the Hotel have access to a dedicated carpark with an internal lift. The facilities of the Hotel include a sports bar, bistro, outdoor terrace and gaming room.
2. In addition to liquor, food, entertainment, sports bet and gaming, the Homebush Hotel also runs an accommodation business which involves letting out the 4 residential levels immediately above the ground floor. The revenue derived from the accommodation from 1 November 2022 to 30 April 2024 was $1,862,437.
3. The Hotel is situated in Homebush and in a "mixed use" zone.

The Local Community

1. The Respondent, in considering the Extension Application considered the "local community" in the present case as comprising people living and working in the suburb of Homebush and the "broader community' as comprising the people living and working in the Local Government Area of Strathfield. The Applicant does not dispute that this is appropriate.
2. The Liquor & Gaming NSW LiveData report for Homebush shows: 1. There are 19 authorised liquor licences of which eight are authorised to sell packaged liquor. This includes four packaged liquor licences, one registered club licence, two hotel licences and one producer/ wholesaler. 2. Saturation of hotel licences is higher in Homebush compared to the local government area of Strathfield (Strathfield LGA) but lower compared to all of New South Wales.
3. The Bureau of Crime Statistics & Research (BOCSAR) data shows that in the year to June 2023: 1. the premises were located in high-density hotspots for alcohol-related domestic assault and malicious damage to property and in a medium-density hotspot for alcohol-related non-domestic assault. 2. alcohol-related domestic and non-domestic assault was higher in Homebush compared to the Strathfield LGA but lower compared to all of NSW. 3. malicious damage to property in Homebush was higher compared to the Strathfield LGA and significantly lower compared to all of NSW. 4. no incidents were reported for alcohol-related offensive conduct in Homebush and the Strathfield LGA hence the rate is lower compared to all of NSW.
4. With respect to the ABS Socio-Economic Index for Areas (SEIFA): 1. Homebush and the Strathfield LGA were ranked as showing high levels of relative socio-economic advantage in terms of household income and residents in skilled occupations compared to other suburbs and LGAs in NSW.

Jurisdiction

1. The Extension Application is a prescribed application as defined under the Gaming and Liquor Administration Regulation 2016, r 7(b). Accordingly, the Respondent's decision may be reviewed by this Tribunal under the Gaming and Liquor Administration Act 2007 (NSW), s 13A and the Administrative Decisions Review Act 1997 (NSW), ss 7 and 9.
2. The Respondent's decision was made pursuant to the Liquor Act, s 51 (the Act). On review, the Tribunal exercises the same powers. The Tribunal is to determine this application by deciding the correct and preferable decision regarding the material before it, including any factual material and the applicable law; Administrative Decisions Review Act, s 63.
3. The Respondent's role in these proceedings is to assist the Tribunal in reaching the correct and preferable decision on the material before it.
4. The Respondent submitted, as it did in North Coast Property Holdings Pty Limited v Independent Liquor and Gaming Respondent [2024] NSWCATAD 98, that: 1. as part of the "material before the tribunal", regard was to be had to the decision of the Respondent, particularly where the decision involves specialised expertise and knowledge. The Respondent cited the judgment of Kirby J in Shi v Migration Agent's Registration Respondent (2008) 235 CLR 286 at [37] as Respondent for that proposition; and 2. the weight to be given to the findings and decisions of an administrative body whose decision is under consideration will depend on matters such as the nature of the body's consideration and the legislative provisions regulating its review. The Respondent relied on QX00/C and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 114 at [71].
5. I do not accept these propositions in the way they have been put for the same reasons given by Senior Member Gatland in North Coast Property Holdings Pty Limited v Independent Liquor and Gaming Respondent [2024] NSWCATAD 98. With respect to the former contention, the passage relied upon by the Respondent rises no higher than being a description of the process the Tribunal must undertake in merits review proceedings. Specifically, at [37]-[38] Kirby J stated: Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the "material before the Tribunal", particular where it involves special expertise or knowledge. But ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal's obligation to conduct a true merits review. [Emphasis added]
6. With respect to the latter submission, I do not consider that the statement relied upon by the Respondent from QX00/C goes as far as is contended. Rather as also stated in that decision: … The Act does not vary the provisions of the AAT Act. Therefore in reviewing the Board's decision, we must make the decision afresh and are not limited to a consideration of whether the Board's decision was open on the evidence. We are not limited to the evidence led before the Board. As part of that review process, we must make findings of fact based on the evidence and we must reach our decision in light of those findings and the relevant law. If we were to give weight to the decision of the Board simply because of our regard for the Board and because it is the highest level of peer review of an auditor's conduct, we would be taking into account something other than the evidence and we would be in danger of adopting the Board's decision rather than making our own. The Board's decision can only be evidence of the fact that it made a decision based on certain findings of fact. It founds the Tribunal's jurisdiction but it cannot itself be evidence of the matters upon which it has reached a decision and it cannot influence the decision in review that the Parliament has entrusted to this Tribunal. [Emphasis added]
7. Otherwise, in these proceedings, neither party bears a legal burden of proof; Smith v Independent Liquor and Gaming Respondent [2018] NSWCATAD 224 at [25], but the applicant bears a practical or evidentiary burden to ensure there is sufficient evidence before the Tribunal to reach the requisite level of satisfaction required to be reached pursuant to particular provisions of the enabling statute; Auld v Independent Liquor and Gaming Respondent [2018] NSWCATAD 25 at [50].

Effect of the 24-Hour Economy Legislation Amendment (Vibrancy Reforms) Act 2023

1. On 6 March 2024, the Applicant sought review by this Tribunal following the refusal of the Extension Application.
2. On 1 July 2024, various amendments to the Act came into force by virtue of the 24-Hour Economy Legislation Amendment (Vibrancy Reforms) Act 2023. Section 48(1) of the Act, as amended, requires an application to be accompanied by a statement of risks in an approved form. In the previous version of the Act an applicant was to file a community impact statement. The new version requires a statement of risks and potential effects which appears to require a greater level of specificity in its content.
3. The Tribunal heard the administrative review application over three days on 28, 29 and 30 August 2024 - that is, after the amendments to the Act came into force.
4. There are no transitional provisions in the 24-Hour Economy Legislation Amendment (Vibrancy Reforms) Act 2023 (or otherwise) which might have indicated how a matter should be dealt with where a decision of the Respondent and the application for administrative review is made prior to those amendments but the matter is heard after the law has changed. The Respondent submitted that the correct law to be applied when, as here, the Tribunal is exercising administrative review jurisdiction, is the law that applied when it made its decision. The Applicant, understandably, wished to have the Application for Review determined expeditiously, and, to that end, also suggested the old Act applied.
5. In Commissioner for Fair Trading, Department of Customer Service (NSW) v Kalkan [2022] NSWCATAP 112 (Kalkan), the Appeal Panel held that, in the circumstances of that matter the Tribunal should apply the law as at the date of the matter coming before the Tribunal. However, the circumstances in Kalkan were different to the present matter for the same reasons identified in Australian Regional Group Pty Ltd v Independent Liquor and Gaming Respondent [2024] NSWCATAD 305. (ARG v ILGA)
6. First, that matter was in relation to the Home Building Act 1989, and to amendments introduced to overcome unintended consequences a result of decision by the Tribunal. Secondly, the amendments to the relevant Act included transitional provisions. Thirdly, in Kalkan the application for review was made after the date the amendments came into effect, whereas, in the present matter the amendments to the Act came into force after the Applicant had lodged its application for review.
7. Additionally, the Respondent made submissions (which were adopted by the Applicant) that Kalkan is inconsistent with Fruginiet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15] and the earlier case of Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, which was there cited with approval. There, at [14] the High Court said: …[The AAT's jurisdiction] is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.
8. I accept the submissions of the parties and find that the Applicant had an accrued right under s 13A of the Gaming and Liquor Administration Act 2007 of administrative review of the decision of the Respondent to refuse the Extension Application. This accrued right is pursuant to s 30(1)(c) of the Interpretation Act 1987 (NSW) which provides, relevantly, that the amendment of an Act does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the relevant Act. This is supported by Esber v Commonwealth (1991) 174 CLR 430 at 40-41 which established that a right of administrative review to a Commonwealth Tribunal was an accrued right pursuant to the equivalent provision of s 8 of the Acts Interpretation Act 1901 (Cth). It is also consistent with the recent decision of ARG v ILGA cited above.
9. I have therefore proceeded on the basis that the old version of the Act applies to my consideration of the application for administrative review.

Application for an extended trading authorisation

1. A hotel licence permits the holder to sell liquor for consumption on and away from the licensed premises in the "standard trading period" of 10am to 10pm on a Sunday and 5am to midnight otherwise (s 14 and s 12), although for licences and extended trading authorisations granted after 30 October 2008 they are now also subject to a 6-hour closure period (s 11A). Since 1 July 2024, the standard trading hours on Sunday have been extended to midnight, except for premises to which a packaged liquor license relates.
2. In the case of a hotel licence, the primary purpose of the business must "at all times" remain the sale of liquor, and gaming "must not detract unduly from the character of the hotel or from the enjoyment of persons using the hotel otherwise than for the purposes of gambling": s 15.
3. The Respondent may only grant a licence (including a hotel licence) if positively satisfied of various matters (s 45), including that the Applicant is a fit and proper person; and that: "practices will be in place at the licensed premises as soon as the licence is granted that ensure, as far as reasonably practicable, that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and that those practices will remain in place".
4. The Respondent may authorise the sale or supply of liquor on hotel premises (in whole or in part) during any period outside of the standard trading period, although not for consumption away from the premises: s 49. An application for a hotel licence or an extended trading authorisation must be accompanied by a community impact statement: s 48, Liquor Regulation 2018, cl 27(3)(a) and (f)).
5. In the case of an application for an extended trading authorisation: Community Impact Statement] are to include matters relating to gambling activities on the licensed premises during the period that the authorisation is proposed to be in force. (cl 28)

The Liquor Act

1. The principal legislation is the Liquor Act 2007 (NSW), the objects of which, and the matters to which regard must be had when securing such objects, are set out in s 3. The objects that are relevant to determining the correct and preferable decision in this case are set out as follows: (1) The objects of this Act are as follows - (a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, (b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following - (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) the need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, contributes to, and does not detract from, the amenity of community life, (d) the need to support employment and other opportunities in the - (i) live music industry, and (ii) arts, tourism, community and cultural sectors. (a) the community impact statement provided with the application, and (a1) any published cumulative impact assessment that applies to the area in which the premises the subject of the application are located, and (b) any other matter the Respondent is made aware of during the application process (such as by way of reports or submissions), that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community. [Emphasis added]
2. A "relevant application" includes, among other matters, an application for an extended trading authorisation: Liquor Act, s 48(2)(c).
3. The objects are reflected in the community impact provisions under the Liquor Act, s 48 and most particularly subsection 48(5), which is also the principal applicable statutory provision in this case. That section provides: (5) The Respondent must not grant a licence, authorisation or approval to which a relevant application relates unless the Respondent is satisfied, after having regard to - (a) the community impact statement provided with the application, and (a1) any published cumulative impact assessment that applies to the area in which the premises the subject of the application are located, and (b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions), that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community
4. As the Tribunal in Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 at [73] observed … the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental.
5. When considering the overall social impact, the Tribunal is required to take into account both positive and negative aspects: Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [30].
6. Accordingly, the Tribunal on review must not grant an application for a liquor licence unless it is satisfied that the overall social impact of the licence will not be detrimental to the well-being of the local or broader community: Liquor Act, s 48(5) having regard to the material set out in the subparagraphs to that section.
7. In addition to the requirements of satisfaction under the Liquor Act, s 48(5), there is a further restriction on granting an extension trading authorisation under the Liquor Act, s 49(8), which provides: (8) Restrictions on granting extended trading authorisation The Authority must not grant an extended trading authorisation in respect of licenced premises unless the Authority is satisfied that - (a) practices are in place, and will remain in place, at the licenced premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and (b) the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises.
8. As the Respondent submitted, even if the mandatory pre-conditions in the Liquor Act are met, the decision whether to grant an extension trading authorisation is discretionary: Liquor Act, ss 45(1), 49(2).

The Guidelines

1. The Authority, pursuant to the Liquor Act, s 57, has issued various guidelines that are relevant to the subject matter of these proceedings. In particular, GL4010 - Guideline 6, Consideration of Social Impact under s 48(5) of the Liquor Act 2007 which is dated 13 October 2021 (Guideline 6) and GL4026 - Guideline 16, Late-night gaming applications, which is dated 12 May 2021 (Guideline 16). In submissions, the Respondent contended that the Guidelines should be considered as policy applied by the administrator in relation to the matter concerned and to which the Tribunal may have regard in determining the application for review under the Administrative Decisions Review Act, s 64(4).
2. I accept that the Guidelines are relevant however the Tribunal is not required to apply them. Rather, the Tribunal is to have regard to the policies and, indeed, should not have regard to them if the policies are contrary to Government policy, contrary to law, or where the policy produces an unjust decision in the circumstances of a case. Accordingly, the Tribunal will have regard to Guidelines 6 and 16 to the extent provided in the Administrative Decisions Review Act, s 64(4).

Section 58 Bundle

1. The Respondent filed and served, pursuant to s 58 of the Administrative Decisions Review Act, a bundle of documents. The bundle included copies of Guideline 6 and 16.
2. The s 58 Bundle also included: 1. an extract from the Respondents board minutes dated 14 December 2023 in which the Respondent noted, amongst other things: 1. Approval of the application for an extended trading authorisation would result in the introduction of 24 hours of post-midnight trading at the venue per week with 12 hours post-2,00am. 2. In light of the findings of the Roy Morgan Research, the high gaming revenue of the hotel suggests the potential for significant gaming harm to the community. 1. The Refusal Decision 2. The Respondent's Board Paper that attached, amongst other documents, the Applicant's completed application form and associated documentation, including a community impact statement, an advertising certificate, Liquor Plan of Management, modified development consent, premises plan, harm minimisation and community impact data, Applicant response to assessment and submissions (as well as the submissions), GPOM, Assessment of Guideline 6 and the Applicant's responses. 3. Also attached to the Board Paper was the research paper of Dr M Stevens and Roy Morgan Research referred to in the Respondent's Board Minutes (the Roy Morgan Research).
3. As part of the submissions as contained in the s 58 Bundle, the Applicant submitted a petition with 194 signatures. This petition was tendered to demonstrate community support for extended trading hours. Also included with the seven expressions of concerns from members of the public (as described above). The expressions of concern mainly expressed apprehension that later trading hours might result in noise or antisocial behaviour which were responded to by the Applicant in the Community Impact Statement. The Community Impact Statement being a condition of any application for an extended trading application: Liquor Regulation 2018 cl 27(3)(a) and (f).
4. There is no dispute that the application and the associated documentation provided by the Applicant complied with the requirements for the Extension Application, including, relevantly, Gaming and Liquor Administration Regulation, cl 28.

Further evidence for the Respondent

1. In addition to the s58 bundle and oral submissions, the Respondent relied upon: 1. Respondent's written submissions marked "R1". 2. Bundle of documents produced under summons by the Applicant being the Applicant's revenue for liquor and bistro sales at the Homebush Hotel from November 2022 to 2024 marked "R2". 3. Affidavit of Professor Sally Gainsbury dated 2 July 2024 marked "R3" who also gave oral evidence and was cross-examined. Professor Gainsbury is a Professor in the School of Psychology and Director of Gaming Treatment and Research Clinic within the Brain and Mind Centre at the University of Sydney. Attached to that Affidavit is a report by Professor Gainsbury on the risks of late-night gaming harm (if any) arising from the granting of the Extension Application. Under the heading "The potential impact of any extension to trading hours at the Hotel", Professor Gainsbury opines, in summary, as follows: 1. the extension of hours for individuals that experience gambling problems would be negative because of an inability to control their gambling. 2. the extension of hours for individuals without gambling problems should not have any issues with gambling venues closing because "they have other important things in their lives which they can engage in". 3. gambling late at night is particularly problematic as it can lead to poor decision-making related to fatigue and having a forced stop in play can provide an opportunity for the individual to consider their choices. A break in play includes travelling to another venue. 4. the fact that the gaming room has significantly reduced numbers during the final hour of trade suggests there is not a high demand for gaming after midnight and therefore little benefit to the community. 5. the benefit to staff of additional hours of work is mitigated by a reduction in social activity and other behaviours which are necessary for a healthy lifestyle. 1. In her opinion, there had been no evidence presented that the GPOM of the Homebush Hotel had been effective in preventing gambling harms or identifying those experiencing gambling harms. Professor Gainsbury references the following to come to this opinion: 1. With reference to Senior Inspector Feng's Affidavit and based on that evidence being that "Senior Inspector Feng commenced gambling at 10pm and only stopped when the venue was closing noting that a brief break to monitor the venue does not constitute a proper break", Professor Gaisbury opines that a staff member should have approached Senior Inspector Feng about taking a break. 2. With reference to Senior Inspectors Pooch and Duncan and based on that they were approached by a gaming staff offering beverages however "she did not ask questions to assess their wellbeing" as well as the observation that two schooners of beer were served to another patron in the gaming room which is likely to impair judgment and increase the risk of gambling which is harmful. 3. Professor Gainsbury opines that the Affidavit evidence does not provide any observations of staff, managers, or responsible gaming officers speaking with patrons about their gaming. Conducting welfare checks or encouraging breaks in play. Additionally, she is of the view that providing complimentary snacks encourages ongoing gambling rather than encouraging a break in play. 1. Professor Gainsbury also considered specific entries in the incident register and made the following observations: 1. Only one incident dated 26 January 2024 was noted to be related to "gambling" in the period from 7 December 2023 to 17 June 2024 and it does not record the machine number which is required when a player is displaying or engaging problematic gaming behaviour. Additionally, the record indicates that a full report was undertaken but no report was provided to Professor Gainsbury. On review of that record, the box next to "gaming" is ticked as indicating the "incident details". The Location is also noted to be "gaming". It appears the reference to "gaming" as the "incident details" is what Professor Gainsbury is referring to as indicating it is related to "gambling". The word "gambling" does not otherwise appear in that incident record which records "Friend of tenant 203. Falling asleep in gaming room. Showing signs of being under influence of illicit substance" (First Incident Record). 2. Two other incidents on 26 April 2024 and 17 May 2024 (Second Incident Record and the Third Incident Record, respectively). The incident details of the former is "other: outside alcohol" with the details being that a man brought in outside alcohol into the gaming room and the latter is "refuse service" because a woman fell asleep at a machine and showed signs of being under the influence. That record read ""female patron showing signs of being under the influence, fell asleep at machine. ATL by security. No issues". In both cases, the location is "gaming". An incident report was not completed in either case. Professor Gainsbury's opinion is that an incident report should have been completed in both cases because bringing in outside alcohol and falling asleep at a machine are signs of problematic gambling and the failure to do so indicates that the Homebush Hotel is not upholding a strong policy or practice to reduce gambling harms. 3. Professor Gainsbury challenged the accuracy of the register and stated: In my opinion, it is not possible for an EGM venue to have had no patrons displaying any signs of risky gambling over a six-month period … which leads me to the conclusion that the venue has failed to uphold its GMP which requires it to record all observed indicators of gambling harm and monitor and intervene with patrons as appropriate. 1. Professor Gainsbury's concluding paragraph of her report states: "ILGA's guideline 16 and decision to refuse the extension of trading hours is consistent with evidence that people who gamble after midnight are much more likely to be experiencing gambling-related harms. The controls put in place by the Hotel to minimise risks associated with problem gambling are not entirely satisfactory, but the fact is that even with better controls, the risk of problem gambling from trading after midnight cannot be eliminated." 1. Professor Gainsbury also gave oral evidence and was cross-examined. Professor Gainsbury gave oral evidence that: 1. With respect to Professor Gainsbury's reliance on a Nova Scotia study and the benefits of a midnight shutdown in the context of problem gambling, Professor Gainsbury accepted that to prevent gambling a shutdown must be consistent in the area but also observed that research indicated that where the shutdown is not city-wide there is some risk that some, but not all, people may go somewhere else to gamble. Professor Gainsbury agreed it was more effective if all gaming venues were shut at the same time. 2. With respect to Professor Gainsbury's opinion as extracted below, Professor Gainsbury accepted that she attributed an opinion to Ms George that Ms George did not express as Ms George never expressed the opinion that there are certain socio-demographic groups which are immune from gambling related harms and that the expression "in direct contrast" was inaccurate in this respect: In my opinion, residents of the Strathfield area and suburb of Homebush are at risk for experiencing gambling harms if gambling availability increases, in direct contrast to the claim made by Ms George in her affidavit. 1. Professor Gainsbury accepted that she had not been provided with: 1. the Respondent's Board Paper which included the rating of "Gaming Intensity" as "Below average". 2. the version of the report entitled Assessment of Guideline 6: Guideline 16 and Gaming Management Plan which included Tables 5 entitled "Office of Responsible Gaming and Identified Risk Factors" and Table 6 entitled "Gaming Participation" attached to the Respondent's Board Paper. 1. With respect to the First Incident Report and the Third Incident Report it was put to Professor Gainsbury that the incidents did not relate to gaming consistent with the evidence of Mr Devine (as described below). Professor Gainsbury indicated that with respect to the First Incident Report, she had made that assumption because the event took place in the gaming room and the "gaming" box was ticked. With respect to the Second Incident Report, Professor Gainsbury accepted that the incident does not describe the patron as accessing the gaming machine but states that the patron was falling asleep at the machine. 2. With respect to Professor Gainsbury's opinion that as Senior Inspector Feng had begun gambling at 22.00 and stopped at closing time (being midnight), a staff member should have approached, consistent with the GPOM and had "a simple interaction with the customer to divert attention from gambling, encouraging the patron to take advantage of the other facilities of the hotel …, and offering the patron non-alcoholic refreshments to be consumed outside of the gaming room": 1. it was put to Professor Gainsbury that her suggestion does not make sense because the hotel was shutting. Professor Gainsbury repeated that this was what the GPOM provided and indicated that a notation should have been made in the circumstances. However, Professor Gainsbury also accepted that a common sense approach has a role to play in these matters. 2. Professor Gainsbury accepted in cross-examination that the mere fact that Senior Inspector Feng was gaming at closing time after playing for two hours should not be regarded as problem gambling. 1. With respect to Professor Gainsbury's opinion that extended trading hours is potentially harmful to staff, Professor Gainsbury accepted that she had not spoken with any of the staff, did not know whether shift work was required for their family income and had excluded the benefit of additional income and only focused on the harm. 2. It was put to Professor Gainsbury that her work is directed to regulatory change and that the majority of the organisations that had funded her work were not from the industry but organisations concerned with increased regulation. Professor Gainsbury disagreed and gave evidence that her work was to produce 3. research to inform industry and practice but accepted that her research is interested in harm minimisation. Professor Gainsbury disputed that her aim is to increase regulation. It was put to Professor Gainsbury that no matter the extent of any extension application, her opinion would be to reject the extension. Professor Gainsbury disagreed and indicated that her opinion would depend on all the facts. 1. Affidavit of Senior Inspector Courtney Duncan dated 27 June 2024 marked "R4". Senior Inspector Duncan is a Senior Inspector at Liquor & Gaming who covertly attended the Homebush Hotel covertly with Senior Inspector Pooch. Senior Inspector Duncan (and Senior Inspector Pooch) attended on 14 June 2024 at approximately 9.12pm and departed at 11.55pm at which time there were three people in the gaming room. His evidence records his observations of the number of patrons and their conduct be it, drinking together, gaming or watching sport. When Senior Inspector Pooch inquired about hot food while in the gaming area, he was informed that only jellybeans were available. After leaving the Homebush Hotel, Senior Inspector Pooch visited three other hotels but did not see any of the patrons from the Homebush Hotel. Senior Inspector Duncan's evidence was unchallenged by way of cross-examination. 2. Affidavit of Alanna Pavey dated 27 June 2024 and marked "R5". Inspector Pavey is an inspector appointed under s 20 of the Gaming and Liquor Administration Act 2007. On 15 June 2024, Inspector Pavey and Senior Inspector Feng attended the Homebush Hotel in a covert capacity and carried out an inspection. In her evidence, Inspector Pavey records the number of patrons at various times and their conduct. Inspector Pavey's evidence was unchallenged by way of cross-examination. Of note was that Inspector Pavey observed that: 1. The level of noise generated by the venue was of a reasonable level. 2. Free hot and cold snacks were available in the gaming room. 3. Inspector Pavey inquired about food in the gaming area and was told that hot pies were available. 4. At midnight, there were no other patrons in the venue except for staff and the security guard directed them to the lifts to exit. 1. Respondent's tender bundle marked "R6" including: 1. Gaming revenue data for the Homebush Hotel for October 2022 to April 2024 2. Updated harm minimisation and community data for the suburb of Homebush dated 3 June 2024. 3. Pages from the incident register of the Homebush Hotel from 7 December 2023 to 17 June 2024 4. Compliance detail of the Homebush Hotel from 1 January 2020 to 17 June 2024. 1. Affidavit of Siddesh Sajjan dated 27 June 2024 marked "R7" who is a resident of a building adjacent to the Homebush Hotel and lodged an objection. In his complaint he explains that his concern is based on seeing people "smoking and doing stuff" and being worried about his teenage children. 2. Affidavit of Michael Feng dated 26 June 2024 marked 'R8". Inspector Feng is a senior inspector appointed under s 20 of the Gaming and Liquor Administration Act 2007 and attended the Homebush Hotel with Inspector Pavey. In his evidence, Inspector Feng records the number of patrons at various times and their use of the facilities including the following observation: I observed that the bets placed ranged between 30c to $3 per press of the button. No patrons were observed to be displaying signs of intoxication or any other behaviour consistent [with] the excessive consumption of alcohol (such a violence, aggression or inappropriate behaviour towards others). Nor was there any aggression shown towards staff, patrons or machines. 1. Affidavit of Jeremy Pooch dated 26 June 2024 marked "R9" who is a licensing officer and attended the Homebush Hotel with Senior Inspector Duncan and whose evidence was consistent with that of Senior Inspector Duncan
2. The Respondent also provided to the Tribunal a bundle of authorities and a copy of the Act.

Further evidence for the Applicant

1. In addition to the s 58 bundle and oral submissions, the Applicant relied upon: 1. Applicant's written submissions in chief marked "A1". 2. Applicant's written submission in reply marked "A2". 3. Applicant's written submissions in closing marked "A12". 4. Affidavits of Paul Devine marked "A3" dated 22 August 2024 and Additional Affidavit of Paul Devine marked "A5" dated 24 July 2024. Mr Devine is the Chief Operating Officer for the Iris group of hotels and oversees the operation of the pubs in that group including the Homebush Hotel. In his Affidavit marked "A5", Mr Devine gives details of the food on offer as well as the after-hours menu. Mr Devine gives evidence that he has not received any complaints about the Homebush Hotel and responds to the evidence relied upon by the Respondent including that of Professor Gainsbury. His evidence includes: 1. With respect to the jellybeans offered to Inspector Duncan, he gives evidence that this is not consistent with staff instructions and such instructions had been reiterated to staff in response. 2. Any rubbish that is left in the laneway would be unlikely to come from the Homebush Hotel. 3. The GPOM has been updated with a view of complying with the new legislative requirements which, at the time of the affidavit, had not yet commenced. 4. In response to Professor Gainsbury's comments regarding the incident register and the First, Second and Third Incident Records: 1. With respect to the First Incident Record, he gives evidence that the need to record the game machine number is only in circumstances where problematic gambling behaviour is identified but the First Incident Record was "plainly" about recording the suspicion that the patron was under the influence of an illicit substance and the reference to "gaming" is limited to describing the location of the events and not the conduct that was the issue. In those circumstances, there was no obligation to record the machine number. 2. With respect to the Second Incident Record, contended that the incident report was concerned with a patron bringing in outside alcohol which is not allowed as it reduces the ability of staff to monitor alcohol consumption. As such, the staff member acted reasonably by confiscating it. Otherwise, Mr Devine disagrees with Profession Gainsbury's reasoning and contends that the fact that someone brings in outside alcohol does not led to the conclusion they are a problem gambler or at greater risk of gambling harm. 3. With respect to the Third Incident Record, he gives the following evidence in his Affidavit which was consistent with his evidence in cross-examination: In relation to entry 19961 (17 May 2024), the staff are trained to look for signs of potential intoxication of patrons. Intoxication is a question of degree, and our staff are trained to be proactive. Where staff see signs which suggests a patron may be approaching the point of intoxication, staff are to cut the patron off from further service and then usually invite them to leave the hotel, before the patron gets to a point of intoxication. On my reading of the incident entry, that appears to be what happened and the patron appears to have left willingly. That is also consistent with the fact that the staff member did not tick the box "intoxication", but rather ticked the box for "refused service". I say that it is unreasonable to infer from that incident entry that the patron concerned was "heavily intoxicated", as is suggested by Professor Gainsbury. (para. 63). Nor is it reasonable to infer that the person had "drunk a lot of alcohol". We often find in our hotels that people exhibit signs of tiredness after a long working day. Falling asleep is itself an equivocal sign - it may be consistent with intoxication, but it may be simply caused by tiredness. In this case the staff member, quite responsibly, has erred on the side of caution and asked the person to leave. That does not mean that the person was either 'heavily intoxicated' or a problem gambler. 1. With respect to all three of the Incident Records, Mr Devine stated that there was no need to complete a full report which was only required in certain circumstances none of which applied. In cross-examination he indicated that he trusted his staff that they had recorded the incidents accurately but accepts that they were human and could make mistakes and "can be lazy sometimes". 1. Otherwise, Mr Devine responds to Professor Gainsbury's opinions as follows: 1. That Professor's Gainsbury criticism of the Homebush Hotel because of the absence of records of problem gambling is unfair given her acknowledgment that many patrons do not consistently display visible indicators of gambling harms. 2. All of the staff have undergone RC training and eleven staff members have completed the Advanced Responsible Conduct of Gambling course (ARCG). Only staff who have completed the ARCG are permitted to act as Responsible Gambling Officers (RGO). Mr Devine repeated this evidence in his cross-examination. 3. Mr Devine rejects Professor Gainsbury's conclusions with respect to Inspector Feng's experience and referred to the fact that Inspector Feng gambled for two hours prior to closure but the signs of problem gambling published by Liquor & Gaming NSW states that playing for two hours or more without a proper break can be a sign of problem gambling. Mr Devine also contends that Professor Gainsbury's interpretation would mean anyone gambling at closing time is showing signs of being a problem gambler and this must be incorrect. In cross-examination, Mr Devine maintained this position. 4. Mr Devine states that it is clear from the evidence of Inspectors Feng and Pooch that staff did interact with them and these interactions were consistent with checking on their well-being in non-obvious ways of doing so which is encouraged so that patrons do not feel confronted or that their privacy is being encroached. 5. Professor Gainsbury's criticism of serving alcohol to patrons who are gaming is unrealistic as EGMs have been made legal in pubs and it is the legislated requirement that the primary purpose of a pub must be the sale of alcohol. 1. Mr Devine also gave oral evidence and was cross-examined. During the oral evidence, Mr Devine gave evidence that: 1. The Homebush Hotel has a "Gaming register" which was kept in the gaming room and a "Hotel incident register" which was kept in the office in the hotel. Mr Devine informed the Tribunal that the requirement to have two registers was from 1 July 2024. 2. In response to the Respondent's Counsel questions about why the "Gaming register" is not expressly mentioned in Mr Devine's Affidavits and that the reference to the "register" in Mr Devine's Affidavits is singular, Mr Devine maintained that the Homebush Hotel has a separate "Gaming register" and that his references in his Affidavit were responding to the incidents that Professor Gainsbury had described which were not from the "Gaming register". 3. From his consideration of the registers (which he last looked at the day prior to his examination), while there were "maybe 12 incidents" in the "Gaming register", there were no recent gaming incidents. 4. With respect to incidents in the "Gaming register," the staff look for patrons who are agitated, using the ATM frequently or exhibit conduct indicative of gaming harm. If that is witnesses, it is recorded in the register. 5. If an investigation is required, that is undertaken by the Applicant and recorded in note format in the HR file of the staff member reporting it or personnel file. 6. With respect to the update to the GPOM, the updates were completed by Justin Zammit who acts as the Legal Counsel. 7. With respect to the residents that made submissions against the Extension Application, Mr Devine indicated that he was not aware of any follow-up with those residents by the Homebush Hotel and disagreed that it was appropriate for the hotel to contact those individuals except if the complaint was made directly to the hotel. Mr Devine denied that such a practice indicated that the hotel did not take residents concerns seriously. 8. Mr Devine confirmed that he was not aware that there was any monitoring of what people were spending but accepted that it was possible to find out how much money was going into a machine and out of a machine each night and how much profit each machine was making but that it is not possible to determine how much a person has lost or gained while the machine is being played. Mr Devine confirmed that an analysis was done each day to determine whether there was an overall profit or overall loss but that this analysis was not done for each person. 9. Mr Devine confirmed that the Homebush Hotel anticipated a greater profit if the Extension Application was granted because a "fair proportion" of the profits came from gaming but could not say whether the majority of profit came from gaming. Mr Devine rejected that the "main area" would be gaming if the hours were extended. 10. Mr Devine was asked that if the average loss to a person was around $200 and whether that would concern him. In response, Mr Devine responded that his concern depended on conduct and that he would be concerned if the person was displaying problem gambling conduct in spending the funds. Mr Devine did not accept that, that level of loss was likely problem gambling and rejected that the absence of such calculations being undertaken by the hotel was an indication that the focus was on profits. 11. Mr Devine clarified that different tax rates apply to gaming machines based on "metered profits" and based on a sliding scale with the highest tax rate being 50% and then lowest 30% whereas the tax rates that apply to food and beverage and accommodation were much lower. 12. Mr Devine confirmed that photographic evidence of identification was not taken of individuals that were the subject of an incident report of the Gambling register but clarified in re-examination that there is no action taken to take such information because while the hotel can check identification it does not have a right to record and store that personal information. I accept this explanation and draw no adverse inferences as to the motivation or compliance of the Homebush Hotel because of the practice of not collecting such personal information. 1. Affidavit of Andrew Phanartzis marked "A4" dated 29 July 2024. Mr Phanartzis is a licenced real estate agent whose work office is close to the Homebush Hotel and described himself as a "regular patron" attending two times a week and uses a variety of its facilities including the dining, sporting facilities and gaming facilities. Mr Phanartzis' evidence was not challenged by way of cross-examination. In his affidavit, Mr Phanartzis states: I would benefit from the added flexibility and convenience that would come with the longer hours and I support the Hotel's application to trade later hours. In my experience, the venue if well run and a great place to visit. Everyone there is super friendly, and it is, in my opinion, a great asset to the local area. In my observation, the other patrons also use it to relax and switch off. 1. Affidavits of Sarah George dated 15 May 2024 and 22 July 2024 marked "A7" and "A6" respectively. Ms George is a Consultant Social Planner and produced a report regarding the Homebush Hotel entitled "Social Impact Assessment: Proposed Extended Trade Authorisation" and also responded to the opinions of Professor Gainsbury. Mr Devine also gave oral evidence and was cross-examined. As part of Ms George's report, she opines: An assessment of the potential impacts likely to be generated by the proposed extended trade authorisation did not identify any potentially negative long-term impacts due to the continued application of the Hotel Plan of Management and the Gaming Plan of Management. The proposed development has the potential to generate a number of positive social impacts including: Provision of additional hours of employment for staff at the hotel and increased employment for security personnel. Provision of a late-night venue for the local community Responding to the requests from hotel patrons for later trading of the hotel premises. The [Social Impact Assessment] notes that the proposed ETA is unlikely to result in any significant social impacts because: The population of the suburb of Homebush display characteristics that suggest that they are less likely to be at risk of alcohol or gaming related harms. [Emphasis added] The Applicant has agreed to cease gaming at the premises at 2.00am with research suggesting hat many problem gamblers are more likely to use EGMs between 2.00am and 8.00am. The Hotel has operated on the site, without complaint since November 2022 and the existing management practices will continue to be applied during the extended period of trade. 1. With specific regard to the "characteristics" as referred to by Ms George, Ms George also states in her report: The proposed ETA at the Homebush Hotel is unlikely to result I significant gaming-related harms I the area because: the population of the suburb of Homebush display characteristics that make them less likely to be at-risk of gaming related harms, including a high proportion of Culturally and Linguistically Diverse people and a highly educated population the SEIFA index for the suburb of Homebush indicate a greater level of advantage compared to the Strathfield LGA, Greater Sydney and NSW. Gaming-related research suggest that area-level socio-economic disadvantage is a risk factor for problem gambling, independent of the effects of individual level socio-economic disadvantage the hotel premises records below average gaming intensity compared to other venues within the Strathfield LGA, and the average profit per machine at the venue is lower than comparable venues the hotel has been operating under an approved and tested Gaming Plan of Management which specifies the management and operation of the gaming area, including staff responsibilities to monitor gaming room patrons to minimise harms the Applicant has agreed to a condition for the gaming room to cease trade at 2.00am information is available to patrons on where to seek help if gambling has become a problem for them. 1. Ms George also gave oral evidence and was cross-examined. During her oral evidence, Ms George gave evidence that: 1. With respect to her observation that the suburb of Homebush and the Strathfield LGA is an area that is a highly diverse population - while Ms George gave evidence that such a characteristic is a factor in coming to an opinion that there are few representations of groups that may be at heightened risk of alcohol of gaming harms, she accepted that those that did have a problem are potentially at risk of having a "greater problem". 2. Ms George accepted that she had not considered the ages of the population and the fact that those between the ages of 18-34 were most at risk however, she did clarify that she had considered the demographic profile table in coming to her conclusions. 3. With respect to Ms George's conclusion that the proposed ETA is unlikely to result in significant gaming-related hams in the area because, inter alia, the hotel records below average gaming intensity compared with other venues and the average per machine is lower than comparable venues - Ms George accepted in cross-examination that she did not have the average profit per machine, per hour and per person and that she is unable to draw a conclusion related to "intensity" without that information. However, in re-examination Ms George gave evidence of the documents that she had received and reviewed to come to her views including documents submitted to the Respondent by the Applicant, data relied upon by the assessing officer including the board paper and the assessing officer's assessment of gaming-related data and risks; and documents contained in the "s 58 bundle" related to gambling "intensity". 4. Ms George disputed that the time of midnight to 2am was the most common time for problem gambling and gave evidence that the "greater risk period" was earlier in the day because the numbers of people gambling reduces from that time. Ms George gave evidence that the likelihood of a person being a "problem gambler" in a group of individuals gaming past midnight increases (noting that the number of people gambling at that time decreases). Ms George disagreed that this factor would weigh against an ETA in isolation but would need to be considered in the context of all the factors. While Ms George accepted that the "risk time" for problem gamblers was after midnight, she gave evidence that the risk can be mitigated and there can be intervention. 5. Ms George agreed that mitigation of risk for problem gamblers depended on plans of management being enforced; that she did not have information as to whether staff were complying with the management plan; and Ms George accepted that if there were gaming related issues that she would have expected to have been informed of them before reaching a conclusion. However, Ms George also gave evidence that she was informed that there were no complaints about the way the hotel is operating now and drew from that, that they were complying. 6. With respect to questions related to the impact of the ETA on employees, Ms George accepted that working after 2am may not be good for all individuals but that such a state of affairs was necessary in many professions such as doctors and nurses and other staff. Ms George rejected that the exposure to gambling for employees after midnight would cause any extra detriment but accepted that exposure to problem gamblers generally could be potentially distressing. Ms George also identified benefits to staff such as greater earning potential because of the time of day or the additional hours of work. 7. Ms George accepted that she did not have specific training in gaming but she maintained that her training, expertise and study provided her with the expertise to opine on the matters dealt with in her report. Ms George also gave evidence that she had worked in licensed premises and had worked with problem gamblers in the context of her work in community services. 8. Ms George accepted that if she knew that people were losing large amounts of money, that would be an important factor but rejected the suggestion that with respect to the current matter, that she had failed to consider other relevant social impacts. In re-examination, Ms George maintained her opinion that the proposed ETA was unlikely to result in significant gaming-related harms in the area. 1. Affidavit of Adam Michael Purcell dated 15 May 2024 marked "A8". Mr Purcell is a former Superintendent in the New South Wales Police medically retiring in 2008 and was the Commander of Hurstville District. Mr Purcell works for A & M Consultants who describe themselves as "Liquor Compliance Specialists". Mr Purcell attended the Homebush Hotel and certain other locations (including other hotels) on 19 April 2024 and 11 May 2024 from 9pm to 1.30am on both occasions. Mr Purcell recorded his observations and experiences in a report attaching photographs. Mr Purcell also gave oral evidence and was cross-examined. He concluded in his report: The Homebush Hotel, Homebush West is a responsibly operated venue that currently has little impact on the local community or amenity. The Hotel does not offer high risk entertainment, attract large crowds or draw high risk patrons to the venue. Although positioned under a multi storied block of residences, the design of the venue reduces the potential noise impacts to either residents in that block or in the vicinity. The Hotel is located in a relatively low crime zone within the metropolitan area. The later trading if the application is granted would not impact on these low crime figures or raise the risk for anti-social impacts on the local community. On both evenings, patrons from the gaming room in the Homebush Hotel attended the Horse and Jockey Hotel. Although this represented only a small snapshot of patron migration it is evident this 300 metre journey along Parramatta Road could be avoided if the Homebush Hotel remained opened and allowed patrons to continue their entertainment at the one venue. Observations and my professional experience support the Hotel owner's application to extend trading hours for the Hotel. 1. Mr Purcell's cross-examination included the following: 1. Mr Purcell accepted he had no formal training in gambling harm issues, 2. that he had prepared similar reports as this one in other matters and in respect of other matters had seen a great migration of patrons from a hotel to another hotel with extended hours but that in this case, there was no significant migration. 1. Affidavit of Anthony Hatzis dated 23 July 2024 marked "A9". Mr Hatzis is the solicitor for the Applicant and provides evidence of the key licence details of three other hotels which are referred to in other evidence being: Horse & Jockey Hotel, Markets Hotel and Wentworth Hotel. Mr Hatzis also provides evidence of: 1. The zoning of the area in response to Mr Sajjan's comment that the Homebush Hotel operates in a "residential area"; 2. The Central Sydney Local Health District. 3. Document entitled "Understanding Crime Hotspot Maps" published in the Crime and Justice Statistics Brief in April 2011. 4. Document listing and entitled "Hotel State Rankings by Profit per Gaming Machine 1 July 2023 to 31 December 2023" and of the three hotels mentioned above, the Markets Hotel ranks number 1, the Wentworth Hotel is ranked number 6 and the Horse and Jockey is ranked number 135. Homebush Hotel is ranked 212. 5. Document listing and entitled "Hotel State Rankings by Gaming Machine Net Profit 1 July 2023 to 31 December 2023" and of the three hotels mentioned above, the Markets Hotel ranks number 1, the Wentworth Hotel is ranked number 6 and the Horse and Jockey is ranked number 132 Homebush Hotel is ranked 315. 1. The Applicant also relied upon: 1. a copy of an incident register from the Gaming room with the first entry dated 17 March 2024 and the last being 27 August 2024 which was responsive to a call made by the Respondent during the course of the hearing. The document was marked "A10". 2. A copy of a document entitled "Hotel tax rates" prepared by Liquor and Gaming NSW and marked "A11".

The Respondent's "aide memoir" and the Applicant's response

1. As described below, the Respondent made certain submissions based upon calculations related to the gaming activity that was said to take place at Homebush Hotel and that on average, a person using the gaming machines was losing $200 a day. In response to the Tribunal's inquiry. The Respondent's counsel confirmed that an explanation of the calculation was not contained in any of the written submissions of the Respondent nor were the alleged sources relied upon to make the various contentions making up that calculation identified in writing, of which there were many.
2. A timetable was set in the terms below to assist the Tribunal to understand the Respondent's contentions with respect to this calculation and the alleged sources of the data: 1. The Respondent is to file and serve a note exposing the calculation upon which it relies to make the submission that the gaming of the Homebush Hotel creates "substantial profits" and that the contribution of a patron to this profit is an "an average around $200" (Calculation Note) by 4pm on 2 September 2024. 2 The Applicant is to file and serve any response to the Calculation Note by 4pm on 5 September 2024. 3 The Respondent is to file and serve any reply in respect of the Calculation Note by 4pm on 6 September 2024 4. The parties have leave to file the documents provided for in order 1, 2 and 3 by electronic means. 5. The decision is reserved.
3. On 2 September 2024, the Respondent filed and served a document entitled "aide memoir" which, consistent with the Tribunal's orders, exposed the calculation said to give rise to the conclusion that "the gaming of the Homebush Hotel creates "substantial profits" and that the contribution of a patron to this profit is an "an average around $200". The "aide memoir" can be described as providing firstly, the alleged facts (or in this case figures) relied upon to populate the calculation and secondly, the contentions relied upon to justify the formula. With respect to the figures relied upon, the Respondent referred to and contended as follows: 1. The Respondent relied on the annual net meter revenue for May 2023 to April 2023 being $4,106,666.77 which the Respondent submitted was the annual profit to the hotel (before tax) from gaming and therefore the total annual loss to patrons from gaming. 2. The Respondent contended that therefore the daily loss to patrons is $4,106,666.77 divided by 365 = $11,251.14. 3. The Respondent relied upon the attendance at the hotel according to the evidence of Mr Purcell which was described by the Respondent as follows: 1. Friday 19 April 2024: 1. at 10pm was 7 in the main bar/ bistro and 13 in the gaming room 2. at 11pm was 11 in the main bar/bistro and 4 in the gaming room 1. Saturday 11 May 2024: 1. at 10pm was 14 in the main bar/ bistro and 10 in the gaming room 2. at 11pm was 9 in the main bar/bistro and 4 in the gaming room. 1. As to patron numbers, the Respondent also listed paragraphs of the Affidavits of Senior Inspectors Feng, Pooch and Duncan and Inspector Pavey (43 paragraphs in total). Senior Inspectors Duncan and Pooch visited the Hotel on 14 June 2024 from approximately 9.20pm to midnight. Senior Inspector Feng and Inspector Pavey visited the Hotel on 15 June 2024 from approximately 8.30pm to midnight. 1. The Respondent also relied upon the factual allegation said to be derived from Ms George's report that the majority of people gamble between 7pm - 10.00pm, being 43.7%.
4. With respect to the Respondent's contentions regarding the application of those alleged facts and figures, the Respondent stated as follows: The majority of people gamble between 7pm - 10.00pm, being 43.7% (A7, George report, page 19). Thus, if one knows the number in that period, one can estimate the total number that day by multiplying by 100/43.7, being 2.3. Thus, if there were, say, 20 people gaming on average each day between 7-10pm, that would suggest a total number gaming each day of about 50. If there were on average 50 people gaming each day, then their average loss per person per day would be $11,251.14 divided by 50 = $225.02 Similarly, if there were on average 100 people gaming each day, then their average loss per person per day would be $11,251.14 divided by 100 = $112.51 The 18 month figures for net profit before tax of food and beverage sales are in R2. [Emphasis added]
5. On 4 September 2024, the Applicant filed and served a response to the Respondent's "aide memoir". In summary, the Applicant: 1. Disputed the appropriateness of relying on a daily loss figure of $11,251.14 because it may be higher or lower on any given day. 2. With respect to the Respondent's contentions related to conclusions to be drawn about the number of people gaming from the evidence, the Applicant contended that the assumption that there were 20 people gaming between 7pm and 10pm is not made out by the evidence referred to by the Applicant. In this respect, the Applicant contended that Mr Purcell's evidence does not support the interpretation summarised at paragraph 62(3) because Mr Purcell records a higher turnover which is consistent with more than 20 persons over a 3 hour period. 3. Disputed that it was appropriate to adopt a percentage of 43.7% because that figure is the percentage of all EGM gamers across all venue types whereas, the evidence supports that it is 43.2% of EGM gamers at pubs/hotels that gamble between 7pm and 10pm but even then, there is no evidence that the 43.2% figure applies to this venue. 4. Disputed that the Respondent's calculation could be said to calculate the "average loss per person per day". In this respect, the Applicant contended that the formula implicitly assumes that every EGM gamer gambles there every day when there is no evidence of this and rather, there is evidence that the use of the gaming room per person is once a week or less.
6. On 6 September 2024, the Respondent filed and served a document entitled "Compliance with the terms of the Tribunal's orders". The Respondent contended, inter alia, that, it had made no submissions in its "aide memoir". In this respect, the Respondent's stated: No submissions were contemplated by the Tribunal's direction. Accordingly, the Authority did not make any submission in the Calculation Note, such as in relation to the use to which the calculation could or should be put.
7. Additionally, the Respondent contended, that what was filed by the Applicant is a "submission" and it is outside the terms of the leave granted by the Tribunal and should be disregarded.
8. I reject the contentions of the Respondent in this respect and accept for consideration, the response of the Applicant to the Respondent's "aide memoir" for the following reasons.
9. It is inaccurate to characterise the "aide memoir" of the Respondent as being filed in the absence of any submission including in the absence of a submission as to the use for the calculation. The reasons for this are two-fold.
10. First, it is inconsistent with the context in which the orders were made because: 1. the orders themselves provided this context by specifying the use of the calculation as submitted by the Respondent namely "the submission that the gaming of the Homebush Hotel creates "substantial profits" and that the contribution of a patron to this profit is an "an average around $200""; and 2. the Respondent had had the opportunity of making submissions during the three-day hearing with respect to the purported calculation.
11. However, the impetus for the orders was the fact that the Respondent had not otherwise dealt with the issue in its written submissions despite the complexities with respect to the reasoning, the need to traverse numerous documentary sources to identify the data for the calculation, the voluminous evidence in the matter and the number of issues raised in the matter generally.
12. The orders were made in that context with the documents to be served providing clarification as to the calculation relied upon by the Respondent. The references in order 1 making clear that what was to be filed and served was limited to that issue. The means to achieve this, as discussed with the parties at the time of making the orders, was for the Respondent, as a first step, to expose the calculation that it contended applied (that is, the formula as well as the data to populate that formula). The Applicant, then, had a right to respond and the Respondent a further right to reply after receiving the Applicant's response. This process ensuring that both parties had the opportunity of addressing anything that arose by virtue of the process. In that way, the right to respond (as provided in order 2) and to reply (as provided in order 3) were also implicitly limited to the issue of the Respondent's calculation (as described in order 1) but otherwise, those orders did not limit the parties to a particular form. Rather, the orders provided for "any" response and "any" reply.
13. Secondly, I do not accept that the "aide memoir" filed by the Respondent was absent any submission, in any case. The "aide memoir" contains the submission of the Respondent as to what formula the Tribunal should apply and the data that should be adopted to populate that formula to make good the proposition that "the gaming of the Homebush Hotel creates "substantial profits" and that the contribution of a patron to this profit is an "an average around $200"". The fact that the submission is one which pertains to a calculation, uses bullet points or that the relevant integers are numerical figures makes it no less a submission then if the position had been described in words and numbered paragraphs or presented in a different way.
14. The document filed and served by the Applicant is consistent with order 2 in that its substance is limited to responding to the various propositions which are put in the Respondent's "aide memoir". Short of agreeing with the manner of calculation proposed by the Respondent, it is difficult to imagine an alternate way of responding. Nor could the Respondent maintain that it was surprised by the Applicant's position that it disputed the integrity of the Respondent's methodology. While the Applicant's written response provided greater detail, the Applicant by way of oral submission during the hearing contended that the calculation should be rejected because its result was speculation. In this respect, the Applicant submitted during closing oral submissions in reply that the patron numbers as provided in the Affidavit of Mr Purcell were limited to specific times and that ultimately, the evidence and specifically the statistics did not allow a break-up per person. The Respondent's counsel made further oral submissions following the reply by way of rejoinder having heard the oral submissions of the Applicant. But, in any case, to the extent that the Respondent was of the view that the written response of the Applicant required a reply, the orders allowed for that course. That reply could have been put in the alternate to its application to disregard the Applicant's written response, but the Respondent failed to avail itself of that opportunity.
15. For these reasons, I accept for consideration, the written response of the Applicant to the Respondent's "aide memoir" which was filed on 4 September 2024 and is consistent with the orders made.

The Applicant's submissions

1. The Applicant submits that there is no doubt the licensee is a fit and proper person within the meaning of s 45 and no issue of proprietary of the licensee.
2. The Applicant submitted that in weighing up the positive and negative benefits to the application, that there are substantial public benefits including the following which align with the statutory objects in s 3(1)(a) to (c) of the Liquor Act: 1. Satisfying the public demand and expectations for the Hotel to provide its facilitates for longer. Reliance was placed on the business operators' assessment that there is a substantial demand and expectation, the unchallenged evidence of Mr Phanartzis who, as detailed above, expressed his own desire for later trading hours and the petition containing 194 signatures. With respect to the petition and in reply to the Respondent's submissions, the Applicant submitted that the petition should be regarded as material and there was no evidence that the signatories were drunk or otherwise coerced into showing their support. 2. Affording more employment opportunities for staff and contractors to work additional or longer shifts. 3. Providing additional choice and convenience to patrons. 4. Enabling the Hotel to compete with nearby hotels where the evidence is that those hotels trade until 2am or 4am and this would enhance the balanced development of the liquor industry; and 5. The grant of the application will contribute to the responsible development of the tourism and hospitality industry noting the four levels of motel style accommodation above the Hotel.
3. Regarding the required finding that the responsible service of alcohol practices will remain in place; the ETA will not result in the frequent undue disturbance and the Hotel and there has been compliance with s 48(5) - the Applicant submitted that such findings were consistent with the evidence in this application.
4. With respect to the Applicant's reliance on Mr Purcell's evidence to support that that the Hotel was well-run consistent with the plans of management, development consent and policies, the Applicant submitted that there is no basis to criticise the evidence of Mr Purcell because he allegedly had no engagement with the staff because it is clear from his evidence that he did engage with the staff and spent substantial time "on the ground" at the Hotel.
5. Additionally, the Applicant submitted that Mr Purcell's evidence was preferable to others (like the licensee) given that Mr Purcell is an objective expert whereas a licensee may be potentially biased. The Applicant also relied upon the evidence of Mr Devine who was a senior officer of the organisation and had a detailed understanding of the operations of the Hotel and gave evidence of substantial controls being in place and would continue to be in place.
6. According, to the Applicant, that provided a "solid basis" to which the other evidence of the Applicant may be added such as the plans of the Hotel, the incident registers and the development consent as summarised above as well as the evidence of the Police Inspectors relied upon by the Respondent which supports that there is a culture of compliance. With specific reference to the registers, the Applicant submitted that the Respondent's contention that the registers were inadequate, or information missing was unsupported and there was no basis to make this finding.
7. Otherwise, the Applicant contended that there was no evidence of any alcohol or gambling related harm in the local or broader community or elsewhere in the State caused by the Hotel and no evidence that any will be likely be caused by the grant of the ETA. The Applicant submitted that any apprehensions with respect to noise or antisocial behaviours are unlikely to be realised given the substantial controls imposed on the Hotel.
8. In support of this, the Applicant referred to the local resident submissions and contended that there was no linkage as between their concerns and with the Hotel nor with extended hours. The Applicant also relied upon the matrix attached to its closing written submissions summarising how the concerns of Professor Gainsbury as contained in her report were addressed in the new GPOM.
9. While these concerns were said to be addressed, the Applicant also challenged Professor Gainsbury's evidence on the basis that "it only concerned itself with one issue affecting a very small minority being problem gambling" and goes no further than suggesting that problem gamblers are more likely to game after midnight but in this case, the evidence supporting a finding of no detrimental impact outweighed that observation. The Applicant described Professor Gainbury's evidence as "theoretical" which did not support that a problem existed in the current circumstances. Rather, as put by the Applicant, the registers show that where there is an issue related to gambling, it is properly dealt with.
10. Additionally, the Applicant referred to what was described as "the distinct lack of substance in the Respondent's case" which the Applicant submitted was to be expected because the decision that was being resisted went against the Respondent's technical advice which recommended approval of the ETA.
11. For this reason, the Applicant also submitted that low weight should be afforded to the Refusal Decision and the reasoning within it on the basis that it does not refer to, or grapple with, the specialist advice received by the agency. Even if that submission was not accepted, the Applicant contended that the concerns raised in the Refusal Decision were met. In respect of the concerns related to density of licences and "hotspot mapping", the Applicant: 1. Relied on data showing that the "density" or "saturation" of licences in Homebush and the Strathfield LGA is lower than State average; the "high levels of relative socio-economic advantage" in the suburb and LGA; and the absence of any objection from government agencies. 2. With respect to the contention that the Hotel was said to be in a "high density hotspot for alcohol assault and malicious damage to property" which might be exacerbated by the extension - the Applicant submitted that "hotspot mapping" does not provide a sufficient basis to apprehend that an extension of trading hours will lead to any appreciable increase in domestic violence or outweigh the substantial reasons for granting the extension.
12. The Applicant's further submissions with respect to the concerns related to gaming may be summarised as follows.
13. Regarding the concern that there were existing high levels of gaming intensity at the Hotel or that the "problem gambling prevalence" was "above average", the Applicant submitted that the Respondent's report (and board paper) was inconsistent with that finding with it being classified as "below average". The Applicant contended there was no basis to doubt this analysis. In addition, the Applicant submitted that: 1. the "above average" rating depended on including "low risk" gamblers within the "problem gambling" cohort and the report also indicated that the area has a lower-than-average prevalence of persons described as "problem gamblers" and "moderate risk" gamblers. 2. the relevant area for the "above average" finding was the Central Sydney Local Health District which is an area with a resident population of more than 700,000 and therefore the data is not specific to Homebush or Strathfield LGA. 3. Ms George's evidence supports that the area shows relatively few signs of risk gambling in that the population is highly educated and relatively well-advantaged. With respect to Ms George, the Applicant drew the Tribunal's attention to the fact that Ms George inspected the Hotel as part of her consideration whereas Professor Gainsbury did not.
14. With respect to the Guidelines and the Roy Morgan Research, the Applicant submitted that Guideline 16 expresses particular concern for problem gambling after 2am, where the present application will avoid that risk entirely. With respect to the Roy Morgan Research, the Applicant drew the Tribunal's attention to the fact that that research established that problem gamblers represented a very small minority. The Applicant submitted that, in any case, caution should be exercised given the qualifications contained in that documents itself such as "Further research is required to provide a rigorous understanding of the impact of EGM late-night gambling on EGM gambler behaviours to determine if reducing the availability if late-night play could be a harm minimisation strategy, or whether increasing availability is associated with increased harm". Additionally, relying on that document alone does not take into consideration the facts and circumstances of the Hotel in this application.
15. With respect to the Respondent's submissions that the gaming of the Homebush Hotel creates "substantial profits" and that the contribution of a patron to this profit is an "an average around $200", the Applicant submitted that the calculation was flawed for the reasons above and was pure "speculation" and could not be relied upon to draw inferences as to gambling intensity or potential harm.
16. In its closing written submissions, the Applicant also submitted that there is no direct relationship between profitability of EGMs and gaming related harm with the revenue or net metered profit attributable to the hotel being spread across a number of players and spreading the impact of losses; and there is no evidence of problem gambling at the Hotel and so no evidence that the revenue generated is linked with problem gambling. The Applicant further submitted, in response to the Respondent, that there was no basis for a finding that the primary purpose of the Hotel is other than the sale of liquor or a finding that the operation of gaming machines detracts unduly from the character of the Hotel. The Applicant emphasised that gaming is one income stream amongst others with it not being high on the Statewide list of premises as regards to gambling revenue (being 212th on the list according to the Affidavit of Mr Hatzis) and with the Hotel encompassing a large, licensed area for the sale of liquor and a very small discrete gaming room of only 20 machines.
17. The Applicant contended that in all the circumstances, the correct and preferable decision was to exercise the discretion provided in s 49(2) of the Liquor Act to grant the application.

The Respondent's submissions

1. In Respondent submitted, as a preliminary observation, that the Applicant's approach to the issue before the Tribunal was in error. It was insufficient for the Applicant to rely upon the absence of evidence of risk or harm, rather the Tribunal must make a positive finding that granting authorisation will not be detrimental to the well-being of the broader community. An absence of evidence would not be able to satisfy that test.
2. The Respondent's position was that the correct and preferable decision was to affirm the Respondent's decision to refuse the ETA for the reasons given in the Refusal Decision as well as the reasons summarised below.
3. With respect to the impact of the local community the Respondent described the concerns of residents as summarised at paragraph 13 above, as "perfectly valid concerns" and specifically, the concern of possible future disturbance to residents was relevant to the Tribunal's consideration because clearly the views of the community are important.
4. The Respondent further suggested that little weight should be afforded the petition of signatures as reflecting the local community because in some instances: a full name is not used; there is no address of the signatory, or the address is not an address in the area of the Hotel. Additionally, the Respondent submitted that it may be inferred that it was signed by patrons of the Hotel in the Hotel where alcohol was being consumed and there is no evidence as to the surrounding circumstances of signing and what explanation was provided to a signatory.
5. With respect to inferences to be drawn from the data about possible impact of the extension to alcohol-related crimes, the Respondent identified and relied upon the fact that BOCSAR statistics of incidents of alcohol-related assault (domestic assault and non-domestic assault) increased in the calendar year ending 2023 from the preceding year which correlated with an increase in approvals for local hotels to operate with extended hours.
6. With respect to harm minimisation and the responsible service of alcohol and the Applicant's proposed controls or mitigation strategies to address any risk of harm, the Respondent submitted that the harm minimisation strategy as provided in the Community Impact Statement was "only as good as its implementation" and the evidence was sufficient to cast doubt as to that compliance including the evidence of alleged issues related to problem gambling in the registers and the expert evidence of Professor Gainsbury. The Respondent submitted that the evidence supported that the Applicant is not concerned with harm minimisation.
7. In this respect, the Respondent submitted that the evidence of Mr Devine did not reflect well on the Hotel's controls or mitigation strategies given the Hotel's practice of only following up complaints if made directly to the Hotel. Additionally, the Respondent submitted that Mr Devine's evidence that he was reliant upon and trusted the staff "to do the right thing", given their training, was inadequate.
8. Additionally, the Respondent contended that an inference consistent with Jones v Dunkel (1959) 101 CLR 298 should be drawn given the absence of evidence by the Applicant, being the licensee. The Respondent submitted that there was an unexplained failure to call the licensee to give evidence which should lead to an inference that the uncalled evidence would not have assisted the Applicant and the reliance on Mr Devine's evidence did not explain this absence. This was said to be because there were "huge absences" in Mr Devine's knowledge such as his knowledge of the registers. The Respondent submitted that in this regard, Mr Devine gave evidence based on the document before him and not upon his own knowledge. While the Respondent did not criticise Mr Devine for letting the licensee "run the pub", the Respondent contended that in those circumstances, the Tribunal cannot be satisfied that the plans of management are being implemented and there is no evidence from the staff acting as gaming officers or "anyone on the ground". In the latter respect, the Respondent suggested that the other evidence relied upon by the Applicant including from Ms George, Mr Devine and by inference Mr Purcell was not evidence from "anyone on the ground".
9. With respect to concerns related to gaming harm, the Respondent relied upon the following.
10. With respect to the fact that other local venues had extended hours and the possible migration of patrons for gaming purposes and the disadvantage of not being able to continue to monitor that patron for the purposes of implementing a harm minimisation strategy - the Respondent contended that a break in play is beneficial and many will cease gambling when a venue closes in any case. As such, it works "both ways" but in any case, there was limited evidence of migration as supported by the evidence of Mr Purcell.
11. The Respondent challenged the reliance the Applicant placed on the list attached to the Affidavit of Mr Hatzis entitled "Hotels: State Rankings by Net Profit per Gaming Machine for the Period 1 July 2023 to 31 December 2023" and by which the Hotel is ranked 212th. The Respondent emphasised that the ranking was per machine and that the Hotel was not open after midnight whereas other hotels ranking higher in the list from the same area were. As such, the Respondent contended that the correct conclusion is not that the Hotel is "low intensity" because it is low on the table but rather, one must consider that the Hotel currently only has 20 machines and is open until midnight. As such, as put by the Respondent, being low on that list does not lead to the finding of "low intensity" or low revenue.
12. The Respondent also made submissions related to the amount earned by the Hotel as a result of gaming as supporting the intensity of the gaming at the Hotel and the possible harm to the community. In this respect, the Respondent submitted that, taking in consideration the tax payable, the Hotel made significantly more from gaming than other aspects of the Hotel and that gaming is the "main part of [its] income". As per the reasoning as summarised above in respect of the Respondent's "aide memoir", the Respondent submitted that the loss per person, per day was "significant" and that the risk would only increase after midnight.
13. With respect to the competing expert evidence, the Respondent submitted that the Tribunal should not accept the evidence of Mr Purcell as "expert evidence" as he did not have sufficient expertise and was not trained in identifying problem gambling.
14. With respect to Ms George, the Respondent contended that while she undertook a site inspection and describes the premises, the Respondent contended she did not interact with staff. Additionally, the Respondent submitted that Ms George had failed to consider relevant factors and her opinion was insufficient in the context of s 48(5) of the Liquor Act.
15. As for the Respondent's expert, Professor Gainsbury, the Respondent submitted that the Tribunal would not accept the criticisms of her evidence and her evidence is persuasive as she analysed previous incidents as per the incident reports. As for what can be gained from the reports, the Respondent referred to the discussions of the local area and that there were factors that "point each way" for example the fact that the area was culturally diverse meant a lower risk but if you have a problem gambling, the problem is most likely greater. The Respondent contended that Professor Gainsbury's evidence was consistent with the Roy Morgan Research and Guideline 16 and that the risks to the community of an adverse social impact are greater with late night gaming.

Consideration

1. The issue for the Tribunal is whether it is he correct and preferable decision having regard to the statutory objects and consideration under the Liquor Act. Consistent with the submission of the Respondent, the Tribunal must assess the social impact of granting the application and be satisfied that granting authorisation will not be detrimental to the well-being of the local or broader community.
2. In order to grant an ETA, the Tribunal must first be positively satisfied of the maters set out in s 49(8) and 48(5) of the Liquor Act. Even if so satisfied, the decision as to whether to grant an ETA (and if so, on what terms and conditions) is discretionary: s 49(2).
3. The Respondent submitted, and I agree, that the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental. In ALDI Foods v Independent Liquor and Gaming Authority [2019] NSWCATAD 43 (ALDI Foods) at [88], the Tribunal described the test as imposing a practical, though not legal onus on the Applicant.

Benefits of granting the ETA to the community

1. The Applicant submitted, and I accept, that granting the application will provide benefits to the public including the satisfaction of a public demand and expectation for the Hotel to provide its facilitates for longer as well as the expectations, needs and aspirations of the community. This aligns with the statutory object contained in s 3(1(a) of the Liquor Act and I give these considerations significant weight.
2. This finding is made not only in consideration of the demand for later trading hours but that granting the application will afford more employment opportunities for staff and contractors.
3. With respect to public demand and the support of the community, such a finding is consistent with the evidence of Mr Devine and the unchallenged evidence of Mr Phanartzis who, as detailed above, expressed his own desire for later trading hours. It is supported by the observations made by Mr Purcell and the Respondent's witnesses who attended the Hotel and their observations of patrons in attendance later in the evening. The finding is also not inconsistent with the small number of expressions of concern received from neighbouring occupiers (seven where the notice of the application was distributed to more than 500 neighbouring properties).
4. It is also consistent with extension of trading hours by Strathfield Council (subject to certain conditions as described above) as it may be inferred that such a decision was made because the Council concluded, at the time the decision was made, that it was in the in the interests of its constituents in the local and broader communities and did not anticipate the overall social impact to be negative.
5. With respect to the petition, I accept consistent with observations made in this Tribunal and the submissions of the Respondent, that recourse to petitions can be a fraught and unreliable exercise: see, for example, the Tribunal's observations in North Coast Property Holdings Pty Limited v Independent Liquor and Gaming Authority [2024] NSWCATAD 98 at [35]-[36]. However, obtaining the views of the local or broader community in evidentiary form is a difficult task given that by its very nature, it is the views of a "community" and therefore many individuals, that is being sought. While I do not give the petition significant weight, I do not accept that it is material where it is otherwise consistent with the other evidence before the Tribunal and in circumstances where it is also consistent with the unchallenged Affidavit evidence as provided by Mr Phanartzis.
6. With respect to employment opportunities, I have considered the submission that the extension of time could cause additional stress or additional emotional harm to the employees with respect to being exposed to problem gamblers. However, I do not find that contention persuasive given the evidence before me. In this respect, Ms George's evidence, which I accept, was that while exposure to problem gambling may be harmful to employees generally, that there was no additional or heightened risk of harm after midnight. There otherwise was no evidence from employees of the Hotel or an employee in an analogous situation who has experienced such harm nor any evidence from a medical practitioner or health practitioner. In the circumstances, the evidence is insufficient to make a finding of increased risk and I give this consideration little to no weight.
7. I also accept, as submitted by the Applicant, that granting the ETA provides the following additional benefits including, first, additional choice and convenience for patrons and, secondly, enabling the Hotel to compete with nearby hotels where those hotels trade until 2am or 4am. In this respect, the grant of the application is consistent with the statutory object in s 3(1)(b) and (c) because it will facilitate the balanced development of the liquor industry and contribute to the responsible development of the tourism and hospitality industry - noting that the above the Hotel are four levels of motel style accommodation.
8. In reaching a decision as to the overall social impact of the proposal I have also considered the analysis of information undertaken by four Senior Officers of the Department of Liquor & Gaming NSW being the Director of L&GNSW Licensing, A/Manager L&GNSW Licensing, A/Coordinator L&GNSW Licensing and a Senior Licensing Officer which provided the Respondent with a positive recommendation. It was observed in the submission that, on balance, it was open to the Authority to be satisfied that the overall social impact of the application being granted will not be detrimental to the well-being of the local or broader community. Considerations included data showing that the "density" or "saturation" of licences in Homebush and the Strathfield LGA is lower than State average; the "high levels of relative socio-economic advantage" in the suburb and LGA; and the absence of any objection from the Police, L&GNSW Compliance and L&GNSW Gaming.
9. Lastly, I reject the submission made on behalf of the Respondent that the Applicant's approach to the issues before the Tribunal was in error because the Applicant relied upon an absence of evidence of risk or harm. This is not an accurate description of the evidence relied upon by the Applicant which, as described above, was significant and voluminous. To the extent that the Applicant made submissions identifying the absence of evidence, it was the absence of evidence supporting the counter factual. That does not equate to a reliance on an absence of evidence but was in support of the Applicant's submission of the "the distinct lack of substance in the Respondent's case".

Negative impacts of granting the application

1. With respect to the seven expressions of concern, where the basis of the concern was specified (which in all cases, it was not) the apprehension was about potential noise and antisocial behaviour.
2. I accept, consistent with the submissions of the Respondent that such concerns are valid to the extent that they are concerns which are understandable in the context of neighbouring properties. But I also accept the submissions of the Applicant that those apprehensions are unlikely to be realised given the substantial controls imposed on the Hotel's development consent by Strathfield Council and the controls enshrined in the liquor licence, the LPOM, the GPOM and the Proposed Conditions that were agreed to by the Applicant in the context of this ETA (as summarised above). In this respect, I have had regard to the Community Impact Statement and note the following: 1. The Hotel operates pursuant to a detailed POM, that adopts management practices to ensure excessive noise, antisocial behaviour, and intoxication does not occur at the Hotel or upon patrons leaving the premises. 2. The Hotel operates pursuant to a detailed GPOM that ensures the Hotel's gaming facilities are operated responsibly and to ensure at risk gambling patrons are reduced or quickly identified. 3. The Hotel operates pursuant to a development consent that imposes numerous requirements to ensure that the operation of the Hotel does not detrimentally affect the quiet and good order of the local community. 4. The Applicant has operated the Hotel since November 2022. During that time, the Hotel has not received any complaints from local residents, Police or Council regarding the noise or its manner of operation. 5. Security personnel are present and operate at the Hotel in accordance with the Plan of Management. 6. The hours sought in the ETA are within those approved by Council in the abovementioned development consent. 7. Management comprises experienced operators of late-night trading hotels, and the service of liquor complies with the Liquor Act 2007 and the Liquor Regulation 2018 8. All staff members involved in the sale and supply of liquor have completed an approved Responsible Service of Alcohol Course, and all staff involved in the provision of gaming has completed an approved Responsible Conduct of Gambling Course. 9. Management and staff are instructed to be mindful of residents and to ensure that patrons behave in an orderly manner when attending and whilst leaving the Hotel
3. I also accept, as contended by the Respondent, that a plan of management, either with respect to the service of liquor or gaming, is only as good as its implementation but the evidence satisfies me that the harm minimisation strategies, policies and procedures are being implemented at the Hotel. In this respect, Mr Purcell made favourable observations of the Hotel based upon his visits which were within his expertise as a former Police officer and given his experience in licensing. Mr Purcell noted that the patrons "appear extremely low risk for antisocial or criminal behaviour" and he discerned "no detectable noise impacts to local residents". Additionally, Mr Devine gave detailed evidence of the training of staff, implementation of the Hotel's policies and procedures including details of the GPOM and the incident registers.
4. In the context of Mr Purcell and Mr Devine's evidence as well as the other supporting material relied upon by the Applicant, it is inappropriate to draw an inference pursuant to Jones v Dunkel (1959) 101 CLR 298. Mr Purcell's evidence, as an expert witness, was independent and preferable to the licensee. Otherwise, Mr Devine was well informed and able to give evidence as to the practices and operations of the Hotel. In those circumstances, better evidence was relied upon which explains this absence of direct evidence from the licensee.
5. I also reject the submission that the evidence casts doubt as to the Hotel's compliance or is sufficient to draw an adverse inference as to the Hotel's commitment to comply. In this respect, the evidence is insufficient to provide a basis to challenge this finding because: 1. The evidence of Senior Inspectors Feng, Pooch and Duncan and Inspector Pavey is consistent with a well-run establishment with each observing members of the community enjoying the facilities of the Hotel without incident. The possible exception is the evidence of Senior Inspector Pooch and the fact he inquired about hot food while in the gaming area but was informed that only jellybeans were available. I do not accept that this isolated incident, which Mr Devine described as being inconsistent with staff instructions, rises high enough to cast doubt on the Hotel's compliance with its plans of management and risk mitigation strategies. Further, Mr Devine's evidence is that when he became informed of this incident, he took swift steps to reiterate to staff the correct response in such circumstances. That conduct is consistent with the Hotel's commitment to harm minimisation. 2. Regarding Professor Gainsbury's observations and opinions as summarised at paragraphs 61(4) and 61(5) above, I do not accept that there is evidence that supports non-compliance with the GPOM either generally or because of the entries in the incident register. Rather, I accept the evidence of Mr Devine as summarised at paragraphs 63(4)(e) and 63(4)(d) (respectively) that responds to each of these criticisms. Regarding the records of incidents, Mr Devine's interpretation is clearly supported on the face of those records. Additionally, I do not accept, after an analysis of the incident records that the registers were inadequate, or information missing. 3. Regarding the submission that the Hotel did not take residents' complaints seriously because it had not followed up the individuals that had lodged expressions of concerns during the public consultation process - I accept the evidence and reasoning of Mr Devine in this respect. Where complaints are made otherwise than directly to the Hotel, there is no consent by the complainant to be contacted by the Hotel. I do not infer from this that the Homebush Hotel shows a lack of concern but rather, a respect for an individual's privacy. Such an approach also alleviates any inference that the Hotel may be attempting to unfairly influence the results of that public consultation process.
6. Additional concerns, as stated in the Refusal Decision and relied upon in these proceedings were as follows: 1. the premises were in a "high density hotspot for alcohol-related domestic assault and malicious damage to property" according to "hotspot mapping" which may be exacerbated by an extension of hours; and 2. in light of research suggesting an association between after-midnight gaming and problem gambling, the "existing high levels of gaming intensity at the venue" indicated a potential for "significant gaming harm in the event that gaming continued after midnight" consistent with the Roy Morgan Research
7. With respect to the concern related to "hotspot mapping", while I accept that hotspot mapping is a geocoding device which shows concentrations of crimes as occur within a particular area, the information should be used with some caution and in the current circumstances, I give the concern little weight.
8. The need for caution is reflected in literature published by BOCSAR and referred to in the Respondent's Guideline 6 that expressly cautions that "hotspots" do not offer an objective measure of the actual or overall risk of criminal incidents occurring in a particular area. As such, I do not accept that "hotspot mapping", in the absence of other evidence, provides a sufficient basis to apprehend that an extension of trading hours will lead to any appreciable increase in domestic violence or outweigh the substantial reasons for granting the extension. In this case, the surrounding facts and evidence are inconsistent with that conclusion because, first, the Police (who provide the data) did not object to the ETA (nor any other government agency). Secondly, there is no evidence of such crimes associated with the Homebush Hotel or extension of hours of any other facilities. Thirdly, the Applicant has agreed to additional controls and mitigation measures in the form of the Proposed Conditions. Fourthly, the rate of alcohol-related assault and malicious damage in the most recent 12-month period was substantially lower than the State average as was the preceding 12-month period. Lastly, the other evidence in these proceedings that patrons appeared low risk for antisocial or criminal behaviour as described above.
9. With respect to the concerns regarding late night gaming, I make the following findings.
10. The concern with respect to late-night gaming, at least how it was articulated in the Refusal Decision, is based upon there being "existing high levels of gaming intensity" at the Hotel and with reference to the Roy Morgan research.
11. I accept, which is not in dispute, that while the numbers of people gambling after midnight decrease, the proportion of those gambling that are problem gamblers after midnight increases and there is an association between late night gambling and gaming related harm.
12. However, I also agree with the observation of the Applicant that the characterisation of gaming as "high intensity" in the Refusal Decision is difficult to understand given the report prepared for the Respondent that recommended approval of the ETA. This is because Table 2 of that report under the hearing "Gaming Intensity" states that the gaming intensity of the Hotel is "below average". This is consistent with other evidence before the Tribunal where the relevant figure for the Hotel is one-third of the average figure for comparable venues, about one-eight of the average for venues in the LGA and about one-tenth of the average for venues in the statistical local area. These figures were again repeated in the summary Board Paper.
13. I am not persuaded that the Respondent's calculation the subject of the Respondent's aide memoir and oral submissions, produces a result that correlates with the average loss per person per day to make a submission about the profitability of gaming to the Hotel, the gaming intensity attributable to the Hotel or the risk of harm to patrons of granting the ETA. In this respect, I agree with the submission of the Respondent that to do such a calculation, data informing of the number of patrons is necessary but the evidence before this Tribunal is insufficient to make those assumptions. In this respect, the evidence of the number of patrons only spans four evenings (19 April 2024, 11 May 2024, 14 June 2024 and 15 June 2024); there is no data from 7pm to 8.30pm on any of those nights nor is there any data for any night other than a Friday and a Saturday. That information is insufficient to make assumptions about numbers of patrons between 7pm to 10pm so as to draw conclusions about the number of patrons.
14. I also find: 1. Ms George's evidence supports that the area shows relatively few signs of risk gambling in that the population is highly educated and relatively well-advantaged; 2. on the evidence before this Tribunal, there is no evidence of problem gambling at the Hotel; 3. Guideline 16 expresses particular concern for problem gambling after 2am, where the present application will avoid that risk entirely consistent with the Proposed Conditions; and 4. problem gambling, in any case, impacts a very small minority as supported by the Roy Morgan Research. In this respect, the research established that only 6.8% of EGM players play between midnight and 2am and problem gambling was 12.1% of EGM gambling in that period and therefore problem gamblers represented only 0.816% of EGM play overall. 5. the fact that there are other nearby venues where EGM play is available after hours and the possibility of migration does not assist either party. While there is a risk that a problem gambler will migrate, there is no evidence that migration did occur at least on the evenings that Mr Purcell attended the Hotel. To the extent it could occur, as submitted by the Respondent, this would allow a break in play which is beneficial and so the issue of "migration" cuts both ways as stated on behalf of the Respondent.
15. I also agree with, and accept, the evidence of Professor Gainsbury's to the extent that she opines that that people who gamble after midnight are much more likely to be experiencing gambling-related harms and that even with better controls, the risk of problem gambling from trading after midnight cannot be eliminated. However, I also accept the Applicant's description of Professor Gainbury's evidence as "theoretical" in that she describes an inherit characteristic of late-night gaming but does not identify a problem with specific reference to this Hotel. The result of this is that Professor Gainsbury's opinion would be applicable to any extension of hours of any hotel with EGMs. The difficulty with this Tribunal relying on such reasoning to reject an application, in the absence of any evidence specific to the venue, is that it could be relied upon in any application and would effectively prohibit late-night gaming which is not prohibited by law. I accept as summarised above that the decision to grant an ETA is discretionary even if the statutory conditions are fulfilled. However, the discretion exercisable by this Tribunal is not so wide that it would allow it to step into the shows of the legislature and effectively allow this Tribunal to prohibit a practice that has not been prohibited or made unlawful by the State.
16. In summary and given the findings above, people who gamble after midnight are much more likely to be experiencing gambling-related harms and that even with better controls, the risk of problem gambling from trading after midnight cannot be eliminated however, in the current circumstances: 1. the intensity of gaming is below average; 2. problem gambling impacts a very small minority; 3. the area shows relatively few signs of risk gambling in that the population is highly educated and relatively well-advantaged; 4. the present application avoids the risk of problem gambling after 2am; 5. additionally, I further find that the new GPOM complies with the new guidelines and as discussed above, the evidence supports that the Hotel complies with its plans of management and has a culture of compliance.
17. In light of those findings, and contrary to the Refusal Decision, I am of the view that the risks of late-night gambling identified by Professor Gainsbury can be mitigated by the imposition of harm minimisation conditions which is met by the Proposed Conditions and the GPOM.

Overall social impact

1. I am satisfied, given the findings above that: 1. there is no issue of proprietary of the licensee and the Applicant is a fit and proper person within the meaning of s 45. 2. on balance, the overall social impact will not be detrimental to the local or broader communities. 3. practices are in place, and will remain in place that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and 4. the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises.
2. Having come to that view, the correct and preferable decision is to set aside the decision under review and grant the application. I observe, however, that I have referred above to the conditions which the Applicant proposed if the extension were granted being the Proposed Conditions and which, I understand, were satisfactory to the Respondent.
3. With these observations in mind, the parties are directed to file Short Minutes as to agreed conditions to be imposed on the licence.

Orders

1. Accordingly, I make the following orders: 1. The Authority's decision is set aside. 2. The Authority is to issue the Applicant's liquor licence is extended so as to permit trading until 4.00 am Monday to Saturday and until midnight on Sundays. 3. The parties are to file Short Minutes of Order setting out conditions to be attached to the licence within 28 days of this decision including but not limited to that there will be no gaming after 2am. 4. If the parties are unable to reach agreement as to the conditions to be imposed on the licence, the matter will be listed for further directions.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 January 2025