Rogers v The Independent Liquor and Gaming Authority

Supreme Court of NSW|2018-06-29|Before: Hulme J

Solicitors: Hatzis Cusack Lawyers Crown Solicitors File Number(s): 2018/199783

Judgment

HIS HONOUR: The Independent Liquor and Gaming Authority ("the Authority") may grant an Extended Trading Authorisation ("ETA") under s 49 of the Liquor Act 2007 (NSW) to authorise a hotel to trade after midnight up until 5.00am on Mondays to Saturdays and beyond 10.00pm and up to midnight on Sundays.
The Sydney Junction Hotel had an ETA for such trading hours. However, due to some development approval applicable to it, it traded on Monday to Saturday until 3.00am and on Sundays to midnight.
The Authority received an application from the Commissioner of Police on 5 October 2017 to revoke the Sydney Junction Hotel's ETA. There was then a series of written submissions by the licensee and business owners of the hotel and by the Commissioner of Police through until 1 June 2018.
On 14 June 2018 the Authority wrote advising of its decision to vary the ETA so as to require a 1.30am close of trading on Mondays to Saturdays. The decision was made pursuant to s 51(9)(b) of the Liquor Act: "(9) An authorisation: … (b) may be varied or revoked by the Authority on the Authority's own initiative or on application by the licensee, the Secretary or the Commissioner of Police."
The letter from the Authority indicates it made the decision to vary the ETA on its "own initiative": "The Authority has carefully considered the Application and all submissions made by the business and premises owners of the hotel and the Applicant in reply. The Authority has decided not to revoke the ETA but instead take action, of its own initiative, pursuant to section 51(9)(b) of the Liquor Act 2007 to vary the ETA so the sale or supply of liquor for consumption on the Premises must cease at 1:30am in the morning after Monday through Saturday trade. No change has been made to Sunday licensed extended trading hours."

Proceedings in NCAT

On 18 June 2018, the plaintiffs filed an application in the New South Wales Civil and Administrative Tribunal ("NCAT") for a stay of the decision pending the hearing of an application for a merits review in accordance with s 13A of the Gaming and Liquor Administration Act 2007 (NSW): "13A Review by NCAT of certain decisions of Authority (1) A relevant person who is aggrieved by a decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation prescribed by the regulations for the purposes of this section (a prescribed application) may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of that decision."
On 26 June 2018, the first defendant (the Authority) opposed the application and the stay on the basis that NCAT did not have jurisdiction under s 13A. It contended that the decision was not made "in relation to an application"; it was a variation "on the Authority's own initiative". It also contended that even if it was a decision "in relation to an application" it was not a "prescribed application". Clause 7 of the Gaming and Liquor Administration Regulation 2016 prescribes the applications to which s 13A applies: "7 Administratively reviewable decisions For the purposes of section 13A of the Act, the following applications made on or after 1 March 2016 are prescribed: (a) an application for the granting or removal under the Liquor Act 2007 of: (i) a hotel licence, or (ii) a club licence, or (iii) an on-premises licence that relates to a public entertainment venue (other than a cinema or a theatre), or (iv) a packaged liquor licence (other than a packaged liquor licence that is limited to the sale of liquor only by means of taking orders over the telephone, by facsimile or mail order, or through an internet site), (b) an application for an ongoing extended trading authorisation in relation to a licence referred to in paragraph (a) that would result in trading after midnight, (c) an application to vary or revoke a condition of a licence imposed by the Authority that would result in trading after midnight, in relation to a licence referred to in paragraph (a) (i)-(iii), (d) an application to increase a gaming machine threshold under section 34 of the Gaming Machines Act 2001 that is required to be accompanied by a class 2 LIA under section 35 of that Act, (e) an application specified in clause 6 in respect of which a delegation given by the Authority to a designated Public Service employee to exercise the Authority's decision-making function is in force."
In the NCAT proceedings Senior Member Montgomery accepted the Authority's argument and concluded that there was no jurisdiction in NCAT to entertain an application for a merits review of the Authority's decision.
On 27 June 2018, the plaintiffs filed an appeal to the Internal Appeal Panel of NCAT together with an application for a stay of the original decision. Later that day a Registrar wrote advising that the stay application would be heard at 3.00pm on 5 July 2018.

Proceedings in this Court

Yesterday, on 28 June 2018, the plaintiffs filed a Summons in this Court. I made orders abridging the time for service and for the matter to be returnable before me, as Duty Judge, today.
The plaintiffs seek an interlocutory order that the decision of the Authority be stayed until further order of the Court. By way of final relief they seek an order in the nature of certiorari or an order setting aside or declaring the decision as invalid.
In response to a contention by counsel for the defendants that the Court did not have a power to make the interlocutory order sought, senior counsel for the plaintiffs instead sought an order in the following terms: "Restrain the Defendants until further order of the Court from seeking to enforce or otherwise acting on the basis that the decision of the First Defendant on 13 June 2018 purportedly pursuant to s 59(9)(b) of the Liquor Act 2007 (NSW) to vary the Extended Trading Authorisation for the Sydney Junction Hotel at Hamilton was valid."
Counsel for the Authority accepted that there was power to make such an order but nonetheless opposed it. However, he submitted that the Court should not dwell upon interlocutory applications but should proceed to hear and determine the matter to finality today.

To determine the ultimate issue?

The plaintiffs' proposed argument in this Court is that by the Authority determining to vary the ETA on its own initiative, rather than in response to the application of the Commissioner of Police, it had denied the plaintiffs procedural fairness and had failed to comply with s 51(13) of the Liquor Act. That provision provides: "(13) The Authority must not impose a condition on an authorisation, or revoke or vary an authorisation, other than a variation made on application by a licensee, unless the Authority has: (a) given the licensee to whom the authorisation relates a reasonable opportunity to make submissions in relation to the proposed decision, and (b) taken any such submissions into consideration before making the decision."
The plaintiffs contend they were not given "reasonable opportunity to make submissions" on the question of the Authority determining to vary the ETA on its "own initiative" and that this was both contrary to the statute and to the dictates of procedural fairness. They submit that if they were on notice of the possibility of the Authority determining the matter on its own initiative, it would have been able to advance a submission that the Authority should not do so because it would have the practical consequence of denying to the plaintiffs an opportunity to seek a merits review in NCAT in the event the outcome was unfavourable to them.
Unencumbered by any authority on the point, the notion that the availability of merits review in NCAT can turn on whether the Authority made a decision on its own initiative or on application seems odd. The nature and effect of the decision, rather than what prompted its making, would appear to be more pertinent to whether merits review by NCAT should be available. Indeed, the proposition that a decision made unilaterally by a regulatory authority is beyond review of its merits is rather concerning.
Further, s 13A of the Gaming and Liquor Administration Act refers to a person aggrieved by a decision "in relation to" an application. In the present case, the decision was made in the context of an application having been made by the Commissioner of Police. The result was that the Authority determined to refuse the revocation of the ETA sought by the Commissioner, but at the same time it chose to exercise its "own initiative" to vary the terms of the ETA. The term "in relation to" would appear to be broad enough to encompass the decision.
These are but tentative views and they are not relevant to my determination of the present issue because both parties seem to accept that there is some relevant distinction between a decision made on application and a decision made of the Authority's own initiative.
Counsel for the Authority's argument had two aspects. First, that there was no denial of procedural fairness because the plaintiffs were on notice of the possibility of the Authority making a decision to vary rather than to revoke the ETA. This was made clear in a letter from the Authority dated 24 April 2018. Senior counsel for the plaintiffs intervened to indicate that this was not controversial; it was accepted that there was notice of the possibility of a variation to the ETA being made.
The second aspect of the Authority's argument was that there was no point in the plaintiffs making submissions to the Authority about being denied the opportunity of a merits review in NCAT if the Authority made a decision on its own initiative because NCAT had no jurisdiction for such a review in the first place. That is because the decision was not one made in respect of an application prescribed in cl 7 of the Gaming and Liquor Administration Regulation.
The plaintiffs contend that cl 7(c) describes the type of application that the Authority was dealing with (and that it should have determined such an application rather than making the decision on its "own initiative"). The argument supporting a construction of paragraph (c) in such a way that would make good that contention was, with respect, rather strained and I was not convinced that it was correct. However, I was not prepared to hasten to a final conclusion without the benefit of more detailed submissions and consideration of them. The constraints of time and other work required both in and out of court in the duty list were not such as to permit that to occur. Significantly, there was also the fact that senior counsel for the plaintiffs had indicated that he was not as prepared to fully argue the point as he would wish to be.

The interlocutory application

Submissions were made on whether there was a serious question to be tried and the balance of convenience. In relation to these aspects there are competing considerations as there usually are.
First, the plaintiffs may make good their contention on the construction of the relevant provisions but I am not convinced there is a strong prospect of that.
Secondly, the plaintiffs assert that there would be significant financial and other consequences that would flow from the reduction in their trading hours. They are described in detail in affidavits by the first plaintiff, Mr Campbell Rogers. They include staff losing income if not able to work for several hours each week. There is a prospect that staff will leave and take up employment elsewhere. Experienced and competent staff may have to be replaced with less experienced and less knowledgeable people.
The financial consequences were said to include that revenue of the hotel will suffer as patrons will choose to attend other venues not the subject of the same limitation on trading hours. It will not be possible to cut costs immediately and so profitability will be adversely affected.
It is also asserted that there will be an adverse effect upon the valuation of the hotel which will impact upon the loan to value ratio in respect of a substantial loan facility with a major bank. The net trading surplus required to comply with the bank's loan covenants will also be adversely affected.
Figures in relation to some of these financial matters are provided in Mr Rogers' affidavit of 28 June 2018. Whether they are correct or not is unnecessary to determine as it is sufficient to say I accept that there will be the potential for matters such as those identified to occur. The extent will largely be affected by the delay in resolution of this matter if the interlocutory relief sought is not granted.
Thirdly, Mr Rogers states in his 28 June 2018 affidavit that he is a guarantor of loans and there may be personal consequences for him if the bank exercised its rights under the loan facilities.
One matter to which the Authority drew attention was that in a letter of 5 June 2018 from the plaintiffs' lawyers to the Authority there was reference to the Sydney Junction Hotel being for sale and there being, at that time, a prospective buyer. No more up to date information as to this was provided.
The Authority's opposition to the interlocutory order was based upon public safety concerns. Counsel took me to evidence highlighting a problem that the Sydney Junction Hotel has experienced in relation to acts of violence. The hotel is listed in Sch 4 of the Liquor Act in Table 1 and is thereby subject to various special licence conditions and security measures because of the history of violence. There were 25 assaults recorded in the 2017 calendar year, the most of any of the hotels on a "leader board" for such events for the three hotels in Table 1 and 11 hotels in Table 2 of Sch 4. However, a summary of acts of assault set out in an annexure to the Authority's letter of 24 April 2018 refers to events between 3 July 2016 and 11 November 2017 and it shows that 10 of 31 such events occurred after 1.30am, which is the time the hotel would be required to close under the varied ETA. In other words, most of these types of events occur in the period in which the hotel would be permitted to continue trading.
The final consideration to mention, and it is a significant one, is that the Court's Manager of Listings has advised that an early date can be offered for the final hearing of the matter and counsel have indicated that 12 July 2018 would be suitable.

Conclusion

I have had regard to the various matters put by counsel as to whether the interlocutory order sought should be made. It is primarily because I am not convinced that the plaintiffs are likely to succeed that I have concluded that the application should be refused. Relevant as well is that the staffing and financial consequences referred to by the plaintiffs do not appear likely to be particularly detrimental when regard is had to the relatively short period of time until this Court will be able to offer the parties a final hearing of the matter.

ORDERS

The application to restrain the defendants from enforcing or otherwise acting upon the decision of the Independent Liquor and Gaming Authority of 13 June 2018 to vary the Extended Trading Authorisation for the Sydney Junction Hotel at Hamilton until further order of the court is refused. The matter is listed for final hearing on 12 July 2018 at 10am. I note the estimate of 2 hours. The plaintiffs are to file and serve an outline of written submissions by close of business on 4 July 2018. The second defendant is to file and serve an outline of written submissions by close of business on 10 July 2018. After consultation with the second defendant as to its contents, the plaintiffs are to prepare and file a Court Book by close of business on 10 July 2018. Costs of today are the second defendant's costs in the cause.

Amendments 03 July 2018 - Typographical error in Catchwords 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: 03 July 2018

Gaming and Liquor Administration Regulation 2016(NSW)cl 7

Liquor Act 2007(NSW)ss 49, 51(9)(b), 51(13), Sch

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