Susan Brennan of counsel, instructed by Bazzani Scully Brand lawyers.

John Larkins and Jason Kane of Counsel, by direct brief.

For Victorian Commission for Gambling and Liquor Regulation

Liam Brown of counsel, instructed by the Commission.

1. Kingfish Victoria Pty Ltd is the applicant for gaming premises approval for 54 gaming machines at the Exchange Hotel in the Melbourne CBD. Melbourne City Council seeks to review the decision by the Victorian Commission for Gambling and Liquor Regulation (the Commission) to grant premises approval, and Kingfish seeks to review the decision of the Council to refuse a planning permit to install and use the gaming machines at the premises. The proceedings are part-heard before Members Martin and Naylor.
2. In a recent decision relating to gaming machines in the Melbourne CBD (Francis Hotel[1]), where Member Naylor was also a member of the Tribunal, the Tribunal was critical of the quality of expert evidence provided about the proportion of forecast gaming expenditure likely to be transferred from other gaming premises, and the balance that would be 'new' gaming expenditure. A similar sentiment has been expressed in other Tribunal decisions. In Francis Hotel, the Tribunal noted the need for expert witnesses to have access to relevant industry data to better understand and predict transferred expenditure. Moreover, in Francis Hotel, the application for premises approval had been refused, albeit primarily on other grounds.
3. Kingfish seeks to avoid a similar criticism and outcome in this case, and has sought relevant industry data from the Commission with the intent of amending its expert evidence on gaming expenditure before the resumed hearing of the proceeding. It seeks weekly and monthly gaming expenditure data for a number of specified gaming venues. The Commission has declined to provide this data on the basis that it is 'protected information' under the Gambling Regulation Act 2003 (GR Act).
4. Kingfish has thus sought that the Tribunal direct the Registrar to issue a summons to require the Commission to produce documents containing the data, pursuant to s 104 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). By reference to s 104(3), this power is exercisable by a presidential member, or the presiding member in a particular proceeding. In this case, the Tribunal ordered that the matter be determined separately by a presidential member - hence the hearing before me.
5. The Commission strongly resists a direction to produce the requested data.

1. This directions hearing brings to the boil an issue that has been simmering in Tribunal gaming proceedings over recent months.
2. The GR Act requires that a premises approval not be granted unless the Commission (or, on review, the Tribunal) is satisfied that "the net economic and social impact of approval will not be detrimental to the well-being of the community of the municipal district in which the premises are located". This is known as the 'no net detriment' test. It is a mandatory pre-condition to approval, which essentially requires the decision-maker to be satisfied that there is 'no net detriment' arising from the approval through positively and objectively establishing that the net economic and social impact will not be detrimental on the well-being of the community. It is not sufficient to form a view that detriment is unlikely or that the impact may be positive.
3. Given this, the forecast level of gaming expenditure for a proposed new venue or for additional gaming machines at an existing venue, how much is derived in the relevant local government area, and how much will be 'new' expenditure or transferred from other venues, will be highly relevant to the socio-economic assessment. From a review of several Commission decisions, it appears that the Commission is often prepared to accept relatively broad estimates of new and transferred gaming expenditure, and often finds it unnecessary to resolve conflicting evidence about these matters in reaching its level of satisfaction under the 'no net detriment' test. This creates a level of difficulty for the Tribunal for the few Commission decisions each year that become the subject of a Tribunal review. These tend to be the more 'finely balanced' matters where projected levels of gaming expenditure and transferred expenditure are often more hotly contested, and where the accuracy of expenditure forecasts may be more critical to whether the 'no net detriment' test is met.
4. Applicants and their expert witnesses have responded to the Tribunal criticism about the lack of sophistication in their forecasts of transferred expenditure by pointing to the limited publicly available data on gaming expenditure. This problem is of relatively recent origin. During the duopoly in the management of gaming venues until 2011, both Tabcorp and Tattersalls had wide access to comparative data from the many other venues they each operated.
5. The Commission has access to industry data on gaming expenditure reported by gaming venue operators on a weekly and monthly basis. However, it only publishes gaming expenditure by venue on an annual basis. It also publishes some 'rolling' six-monthly data on its website, but this is not maintained on the website beyond the immediate period to which it relates, meaning there is no publicly available historical record of the six-monthly data.
6. In at least four recent gaming proceedings since the ending of the Tabcorp/Tattersalls duopoly, various divisions of the Tribunal (including myself) have suggested that the Commission might now take a more pro-active role on these issues. In three of these decisions[2], the Tribunal had indicated this would be desirable. In the fourth decision, Francis Hotel[3], the Tribunal had used stronger language:

[52] ... What this case demonstrates to us is the need for expert witnesses to have access to data to understand actual transferred expenditure in order to best predict transferred expenditure. As such, we see relevant industry data is an essential ingredient to the assessment of transferred expenditure in the gaming industry.

1. Somewhat unsurprisingly, I prefer the more qualified view I later expressed in the Castlemaine Pokies case[4]:

[131] ... The Commission could also perhaps assist in better flushing out relevant information in Commission proceedings about a particular case, or disseminating better information from its research and collection of statistics over time, although there may be some limits to the extent of material that the Commission can reasonably or lawfully provide. It is ultimately a matter for the applicant for approval to satisfy the Commission and Tribunal about issues such as gaming expenditure to a sufficient level in a given case from available information sources.

1. The reference there to the limits to the extent of material the Commission can 'reasonably or lawfully provide' is now the central issue here.

Can the Tribunal force the Commission to disclose protected information?

1. Section 10.1.31 of the GR Act provides as follows:

(1) Subject to subsection (2), a regulated person is not, except for the purposes of a gaming Act or gaming regulations, permitted or required -

(a) to produce in a court a document that has come into the person's possession or under the person's control; or

(b) to disclose to a court any protected information that has come to the person's notice -

in the performance of functions under a gaming Act or gaming regulations.

(2) A regulated person may disclose, or be required to disclose, protected information to a court or produce, or be required to produce, in court any document containing information if -

(a) the Minister certifies that it is necessary in the public interest that the information should be disclosed to a court; or

(b) the person to whose affairs the information relates has expressly authorised it to be disclosed to a court.

1. It is common ground that the Commission is a 'regulated person', the Tribunal is deemed to be a 'court', and the data Kingfish seeks to access is 'protected information', having regard to the definition of each of those terms in s 10.1.29.
2. Kingfish contends that the data it seeks would be "for the purposes of the gaming Act or gaming regulations" (i.e. to be used in the consideration of its gaming premises application under the Act), and that it thus falls within the express exception in s 10.1.31(1) of the GR Act. It contends that, by coming within the exception, the whole section effectively ceases to apply, and disclosure of the data can thus be required by the Tribunal exercising its discretion under the VCAT Act.
3. I prefer the interpretation proffered by the Commission. Section 10.1.31(1) is perhaps inelegantly worded, using a 'subject to', a negative, and an 'except for' in its opening line that makes it initially difficult to deconstruct its meaning. However, subsection (1) is expressly "subject to" subsection (2), and subsection (2) can also be read as having a stand-alone operation. Moreover, in grammatical terms, subsection (1) appears to fetter the Commission in what it can do. It is subsection (2) that more clearly fetters what the Tribunal can do - "A regulated person may ... be required to disclose ... to a court ...". In my view, it is therefore s 10.1.31(2) that is ultimately more determinative here, and it cannot be put aside as simply as Kingfish contends. Also, in my view, this interpretation is bolstered by having regard to the surrounding provisions of the GR Act dealing with confidentiality and disclosure, and the explanatory memorandum for the provision provided to me by the Commission.
4. This being the case, I consider the Tribunal cannot force the disclosure of the data Kingfish seeks, unless one of the preconditions in subsection (2) is met - i.e. a Ministerial certification, or third party consent. Neither exists here. The Tribunal therefore has no discretion in the matter. That is sufficient to dispose of Kingfish's request under s 104 of the VCAT Act. It must be refused.
5. Having said that, I was somewhat critical of the Commission at the directions hearing as it has apparently not sought to ascertain whether the Minister would give a certification given the possible public interest in disclosure of some of the requested information (and given the comments in the previous Tribunal decisions referred to above). Nor has the Commission sought third party consent from those other venue operators whose data is requested.
6. Moreover, the Commission's counsel was unable to provide any reasons for the Commission's unwillingness to share any data with Kingfish's consultant, and indicated that the Commission was not obliged to give reasons. This is seemingly at odds with some examples provided by Kingfish where the Commission has in the past provided limited data to industry consultants subject to appropriate confidentiality undertakings.

If power existed, should the Tribunal require disclosure?

1. Even if I am wrong in my interpretation of s 10.1.31 of the GR Act, I would not in any event have required disclosure of the protected information sought in this case. That might sound strange, given the comments in the previous Tribunal decisions and earlier in these reasons on the broader benefits of disclosure of relevant industry data. However, in this case:
   • any discretion under s 104 of the VCAT Act would need to be exercised having regard to the particular circumstances of the case;
   • some of the data sought is weekly or monthly gaming expenditure information from gaming venues operated by Kingfish's competitors. Whilst that does not automatically mean that there should be no disclosure of information at all, commercial-in-confidence or competitor information should not be lightly disclosed. A public interest test or a clear need for disclosure should be demonstrated. As indicated below, I am not convinced access to weekly or monthly data (as opposed, say, to quarterly data) is necessary to provide better transferred expenditure predictions;
   • here, moreover, the issue of transferred expenditure (for which the comparative data is sought) is not the central issue in the main review proceeding, and it is unlikely to prove determinative. Melbourne City Council indicated that its objections to the Kingfish proposal were primarily directed to overall gaming expenditure (for which annual data is likely to be sufficient), and to the underlying methodology used by the expert witness to assess gaming expenditure. The disclosure of weekly or monthly data will not materially assist either party (or the Tribunal) on these issues.

1. The issue of access to relevant industry data to facilitate a better assessment of transferred gaming expenditure in finely balanced Tribunal proceedings is unlikely to go away. However, quite apart from concerns about making commercially sensitive information publicly accessible to competitor venues, I am not actually convinced that access to weekly or monthly data for comparative venues is essential to that task. If a new venue or new gaming machines at a venue leads to gaming expenditure shifting from one venue to another (i.e. transferred expenditure), the relevant shift may take time to stabilise. There may, for example, be an initial 'honeymoon period' whilst patrons try out a new venue or machines, but with some patrons then reverting to previous favourites. Immediate weekly data, or even monthly data, may be misleading to the medium to longer term shift that is more relevant to the 'real' level of transferred expenditure that is, in turn, relevant to the socio-economic assessment of the impact of a new gaming proposal.
2. Equally, the current provision of annual gaming expenditure per venue provides data that is too coarse to analyse the amount or effects of transferred expenditure, as many changes may occur within such a period. Quarterly data, for example, would be more likely to disclose the effects of a new venue or new machines on another venue.
3. As indicated earlier, I understand that the Commission has in the past provided limited 'protected information' to industry consultants subject to appropriate confidentiality undertakings. The Commission openly concedes it has a discretion to do so in furthering the objectives of the GR Act, even if the Tribunal cannot force it to do so in a particular case.
4. Given the extent to which this issue has now been raised and discussed in several recent Tribunal decisions, the Commission might reconsider whether it could provide relevant quarterly data to expert witnesses in Tribunal proceedings where transferred expenditure is in dispute (with or without confidentiality undertakings). It may be desirable to seek a Ministerial certification to disclose such information in the public interest as a matter of general policy, perhaps after industry consultation. For this purpose, I confirm that I consider disclosure of quarterly data to industry consultants would be in the public interest and would materially assist the Tribunal, and the parties and their experts in the gaming proceedings before it, and the industry generally, in better assessing the accuracy of gaming expenditure forecasts relevant to the 'no net detriment' test under the GR Act.

[1] Francis Hotel Pty Ltd v Melbourne CC (Red Dot) [2012] VCAT 1896

[2] Bendigo Stadium Limited v Greater Bendigo City Council [2012] VCAT 1698 at [33] per Dwyer DP and Sibonis M; Mount Dandenong Tourist Hotel Pty Ltd v Greater Shepparton City Council (Peppermill Hotel) [2012] VCAT 1899 at [90]- [91] per Smithers SM and Hewet SM; and Mount Alexander Shire Council v Victorian Commission for Gambling and Liquor Regulation (Castlemaine Pokies)[2013] VCAT 101 at [131] per Dwyer DP.

[3] [2012] VCAT 1896 at [52] per Code M and Naylor M

[4] [2013] VCAT 101 at [131]