Solomon v Licensing Court of New South Wales & Anor

Supreme Court of NSW|2000-10-24|Before: Whealy J, Mr P

CITATION : Solomon v Licensing Court of New South Wales & Anor [2000] NSWSC 974 FILE NUMBER(S) : SC 12095/00 HEARING DATE(S) : 06/10/00 JUDGMENT DATE : 24 October 2000

PARTIES : Bruce Randall Solomon v Licensing Court of New South Wales & Anor JUDGMENT OF : Whealy J at 1

Mr P McClellan QC; Mr I. Lawry - Plaintiff COUNSEL : Submitting Appearance - 1st Defendant Mr S Austin QC; Mr Tony Hatzis - 2nd Defendant Phillips Fox - Plaintiff SOLICITORS : State Crown Solicitor - 1st Defendant Mallesons Stephen Jaques - 2nd Defendant CATCHWORDS : "Adjoining" Gambling Legislation Amendment (Gaming Machine Restrictions) Act 2000 LEGISLATION CITED : Liquor Act Retail Leases Act 1994 Interpretation Act 1987 Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 423 Bropho v Western Australia (1990) 171 CLR 1 Minister for Works v Antonio (1966) SASR 54 CASES CITED : New Plymouth Borough Council v Taranki Electric Power Board(1933) AC 680 at 682 R v Hedges (1829) 173 ER 1182 Cave v Horsell (1912) 3 KB 533 at 543 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 433 at 434 Monier Limited v Szabo (1992) 28 NSWLR 53 at 67 DECISION : I propose to allow the appeal and to grant relief to the plaintiff in the following terms: -; 1. Declarations in terms of paras 1 and 3 of Summons herein; 2. Orders in terms of Para 4, 5 and 6 of the Summons herein; 3. The second defendant is to pay the costs of the plaintiff as agreed or assessed. The second defendant is to have a Certificate under the Suitor's Fund Act, if qualified.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12095/00 - Bruce Randall SOLOMON v THE LICENSING COURT OF NEW SOUTH WALES & Anor

1 HIS HONOUR: The plaintiff is a well known and experienced hotelier in New South Wales. He made an application to remove a dormant hotelier's licence from the Zenith Centre at 821 Pacific Highway, Chatswood to new premises on the ground floor of a new building on the corner of Railway Parade and Brown Street, Chatswood. The proposed hotel premises are on several levels on the ground floor and are contained within a Tower Building which itself contains residential apartments and short term accommodation. The balance of the building contains a current café and a site proposed for a new café. 2 Railway Parade is itself a reasonably busy street which leads from the Pacific Highway at Chatswood to the Chatswood Railway Station and to the large Regional Chatswood Shopping Centre. The Railway Station and Bus Interchange Service are integrated within, and close to a complex known as Chatswood Central. This shopping centre is on the south eastern side of Railway Parade and contains a number of food and takeaway type food outlets and other retail business. 3 As I have said Railway Parade is a busy street and in addition to being used by pedestrians and motorists coming to the central part of Chatswood and to the transport facilities, it is also used by taxis and pedestrians who come from the nearby offices, apartments, and businesses which have developed substantially in Chatswood over the last twenty years. 4 As I have also stated, the plaintiff's proposed hotel is on the ground floor premises of the new building at 10-18 Railway Parade, Chatswood. The closest point of these premises to the nearest point of Chatswood Central Shopping Centre is about 40 metres. According to the decision of the learned chairman of the Licensing Court, the separation physically between the site and Chatswood Central comprises a strip of private land, a footpath on the site side, the full width of Railway Parade and then a footpath on the Chatswood Central side. 5 It is quite clear, as a matter of ordinary parlance, that the proposed premises are not in Chatswood Central Shopping Complex nor are they are a part of it. Not surprisingly, the Licensing Court found this to be so as a question of fact. 6 On 5 July 2000 the Full Bench of the Licensing Court was asked however, to determine a preliminary issue which had arisen for the court's determination. The issue which had arisen related to a recent amendment to the Liquor Act which had been introduced by the Gambling Legislation Amendment (Gaming Machine Restrictions) Act 2000 ("the amendment Act"). This legislation had come into force earlier this year. 7 The particular issue which arose related to the proper construction of s 161A of the Liquor Act which had been introduced by that legislation. 8 Section 161A is in the following terms: " Approved gaming devices not permitted in retail shopping centres (1) In this section retail shopping centre means a retail shopping centre within the meaning of the Retail Leases Act 1994 , and includes: (a) any adjoining building, or (b) anything declared to be a retail shopping centre by the regulations, but does not include anything excluded from this definition by the regulations, (2) An approved gaming device cannot be authorised under this Act to be kept (or used and operated) in a hotel: (a) that is part of a retail shopping centre or proposed retail shopping centre, or (b) that was part of a retail shopping centre within the previous 12 months. (3) If an application is granted under this Act for the removal of a hotelier's licence to premises that are part of a retail shopping centre or proposed retail shopping centre: (a) any entitlement under this Act to keep approved gaming devices in the hotel ceases, and (b) the entitlement revives if: (i) the licence is removed to premises that are not within a retail shopping centre or proposed retail shopping centre, or (ii) the premises cease to be part of a retail shopping centre for at least 12 months. (4) Subsection (2) does not apply to any authority given as a result of an application that was finally determined before 12 pm on 28 March 2000 (whether or not the hotel is or becomes part of a retail shopping centre). (5) Subsection (2) does not apply to any authority that does not result in any increase in the total number of approved gaming devices authorised to be kept in the hotel. (6) An authority given after 12 pm on 28 March 2000 (whether in respect of an application pending at or made after that time) has no effect if it contravenes this section. (7) This section extends to a device kept in a hotel on a trial basis as approved by section 167 or by section 79A of the Registered Clubs Act 1976 (as applied by Division 2A of Part 11). (8) Damages or compensation are not payable by or on behalf of the Crown because of: (a) the enactment or operation of this section, or the consequences of that enactment or operation, or (b) a representation or conduct of any kind about any limitation on the keeping of approved gaming devices in retail shopping centres. In this subsection, the Crown means the Crown within the meaning of the Crown Proceedings Act 1988 , and includes the Board or any officer, employee or agent of the Crown or the Board. (9) This section has effect despite anything to the contrary in this Act."

The Preliminary Issue 9 The issue that arose for determination at the outset was whether, if the court were minded to grant the application, it could do so and condition the grant so as to permit poker machines in the proposed hotel. It was agreed that this issue fell to be determined by the provisions of s 161A of the Act which are set out above. It was common ground that poker machines could not be authorised under the Act to be kept issued or operated in the proposed hotel if the hotel were to be part of a retail shopping centre within the definition contained in s 161A. Plainly, on the particular facts of the case, the Licensing Court's view was that the proposed hotel would not be within a retail shopping centre unless it were to be located within "any adjoining building" (161A(i)(b)). 10 The leading decision was given by the learned Chairman of the Licensing Court Mr David Armati. The second member of the Court, Mr Dennis Collins agreed with the reasons stated by the Chairman and added a number of comments of his own. The third member of the court, Mrs Daphne Kok, disagreed with her colleagues in relation to their interpretation of the Act. The majority decision was that a wide interpretation should be given to the word "adjoining" where it appeared in the legislation with the consequence that the plaintiff's proposed premises were held to be, within the meaning of s 161A of the Liquor Act, part of a retail shopping centre. 11 The plaintiff's application was subsequently granted by the Full Bench of the Licensing Court. In granting the application, the court, consistently with the majority view, imposed a number of conditions which included the following: - "3. No approved gaming devices may be operated in the hotel premises at Lot 168, 10-18 Railway Parade, Chatswood and until such time as the licensee satisfies the Liquor Administration Board that the hotel is no longer located in a building which adjoins a retail shopping centre within the meaning of s 161A of the Liquor Act 1982. 4. No application may be made for the purpose of the preceding condition unless not less than fourteen days written notice of the application has been first given to the General Manager, Council of the City of Willoughby at the Council's proper address."

Appeal to the Supreme Court 12 On 21 August 2000 the plaintiff by its solicitors filed a summons in the Supreme Court in the nature of an appeal on a question of law. Apart from consequential and ancillary relief, the principal relief sought by the plaintiff is in the following terms: - "The plaintiff claims: 1. A declaration that the determination of the First Defendant made on 5 July 2000 and forming part of its adjudication made on 27 July 2000 ( "the determination" ) was erroneous in law. 2. An order that the determination be quashed. 3. A declaration that the conditions imposed by the First Defendant on 27 July 2000 were imposed in error of law. 4. An order that the order imposing the conditions be quashed. 5. An order that the terms of the conditions imposed by the First Defendant on 27 July 2000 be expunged. 6. An order that the application of the Plaintiff be remitted to the First Defendant to be dealt with according to law." 13 The grounds upon which the plaintiff relies are set out in the summons. These are: -

" GROUNDS 1. The First Defendant was in error in its interpretation of section 161A of the Liquor Act 1982 when it held that the building containing the proposed licensed premises of the Plaintiff was "adjoining" a retail shopping centre. 2. The First Defendant was in error in imposing conditions upon the licence in the terms adopted by it, in furtherance of its erroneous interpretation referred to in Ground 1."

The Course of the Proceedings 14 On 15 September 2000 her Honour Justice Bell granted expedition in relation to the hearing of the appeal. It was listed before me for hearing on 6 October 2000. Mr Peter McClellan QC and Mr Ian Lawry appeared for the plaintiff. Mr Stephen Austin QC and Mr Tony Hatzis appeared for the second defendant (Willoughby Council) which had been an objector at the original hearing. There was, as is the usual practice, a submitting appearance filed on behalf of the Licensing Court of New South Wales. 15 The parties provided me with full written submissions prior to the hearing. In view of the relative urgency of the matter, brief oral submissions were made at the hearing to re-enforce the written submissions made by the parties. I reserved judgment on 6 October 2000. On 13 October and 18 October, further brief written submissions were made by the parties.

The Issue 16 The simple matter at issue is the interpretation of s 161A of the Liquor Act. The learned magistrates, who consisted the majority of the Full Bench, held that the phrase "any adjoining building" in s 161A(1)(a) should be construed widely so as to mean a building which is "near to or neighbouring on" a shopping centre as defined. The plaintiff submits that, in its context, the word "adjoining", where it appears in the legislation, should be construed narrowly to mean "conterminous", "touching upon", or "sharing a common boundary". The second defendant however, supports the majority view of the Licensing Court and contends that the wider interpretation is the correct one. Each party has supported its position by reference to the text of the legislation, submissions as to the scope and purpose of the Amendment Act and the Liquor Act generally; and by reference to the Second Reading Speech and Explanatory Note. 17 In view the need for an urgent decision in the matter, I do not propose to set out those submissions in full in this decision. I trust, in dealing with the substance of the matter I have to decide, I am able to do justice to the care and attention which has gone into the preparation of those submissions and arguments.

It is common ground that it is appropriate to interpret the legislation in the manner which promotes the purpose or object of the relevant legislation. As McHugh JA (as he then was ) stated in Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 423:- "A purposeful and not a literal approach is the method of statutory construction which now prevails … in most cases the grammatical meaning of the provision will give effect to the purposes of the legislation. A search for the grammatical meaning still constitutes the starting point. If the grammatical meaning of the provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act." 18 His Honour continued at 423G-424: - "If the objects and purpose of the statute and the means of their achievement are not declared, they can only be determined by examining the statute as a whole. The ordinary meanings of the individual words together with any statutory definitions will invariably indicate what those objects purposes and means are. The cumulative weight of their core meanings will indicate the general purpose or purposes of the statute. But when the statute has been read as a whole and its purpose determined, the prima facie meaning of the provision must, if necessary, give way to the construction which gives effect to the statutory object or purpose …. Words may give colour to each other, modifying their primary meaning, and causing the whole provision to have its own unique meaning. Likewise the general objects and purpose of the statute will give colour to the individual words, phrases and provisions sometimes modifying their ordinary meanings. Once the object or purpose of the legislation is delineated, the duty of the court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object." 19 This decision was cited with approval in Bropho v Western Australia (1990) 171 CLR 1; see also s 33 Interpretation Act 1987. 20 An examination of the manner in which the word "adjoining" has been construed in decided cases indicates that it may have a range of meanings dependent upon the context in which it occurs. I accept it is permissible to regard it as having a primary meaning of conterminous ie, "connecting with" or "rebutting"; and that it may have a secondary or wider meaning of "near to" or "neighbouring" (Minister for Works v Antonio (1966) SASR 54; New Plymouth Borough Council v Taranki Electric Power Board (1933) AC 680 at 682; R v Hedges (1829) 173 ER 1182; Cave v Horsell (1912) 3 KB 533 at 543. 21 Labels such as "primary" or "secondary", however, can be misleading and are not necessarily helpful as it is necessary to examine the word in its proper context. It is not at all surprising that courts have given a wider meaning to the word "adjoining" in cases involving restrictive covenants for the benefit of tenants; or cases involving the construction of planning schemes (for example, Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 433 at 434). 22 None of the decided cases are conclusive as to the meaning to be given to the word "adjoining" in its context in s 161A of the Liquor Act. It is helpful, however, since it is a relatively recent case, to note the remarks of the Court of Appeal in Hornsby Shire Council v Malcolm (supra). Kirby P (as he then was) said at p 434: - "Words in the English language are constantly changing their primary meanings as any dictionary demonstrates. The word "adjoins" is no exception. Whereas originally it might well have connotated immediate physical continuity, nowdays that idea tends to require the use of the adverb "immediately", such as "immediately adjoins". That adverb would not be necessary if the word itself invariably connotated immediate physical proximity". 23 In the same case, Glass JA (at 443) said:- "The trial judge ruled that the word "adjoins" in the statutory phrase "adjoins land zoned for urban purposes" is used in its loose sense of "is near to" and "is neighbouring on" rather than its exact meaning "is conterminous with". … In my opinion the word "adjoins" is currently used in both senses and must take its colour from the context in which it appears." 24 I also accept that s 2B(1) of the Liquor Act makes the following matters express primary objects: -

"(a) Gambling harm minimisation, that is the minimisation of harm associated with the misuse and abuse of gambling activities, and (b) The fostering of responsible conduct of gambling activities". 25 These objects, I further accept, are of primary importance in considering any provision in the Liquor Act relating to the public interest comprised in protecting members of the public from the potentially adverse impact of gambling. 26 It is plain, as a consequence, that the general policy of s 161A is the promotion of the welfare of the public, and the minimisation of harm from gambling. The particular question is, however, to discern the purpose of the specific prohibition contained within s 161A and to ascertain, having regard to that purpose, whether the meaning to be ascribed to the word "adjoining" in its context will be adequately fulfilled by the meaning attributed to it by the plaintiff; or whether conformity with that purpose requires the word to have the wider meaning urged by the second defendant. 27 I have come to the conclusion that the plaintiff's submissions are to be preferred. This conclusion is founded upon the text of the legislation, and the policy underlying the text of the Amendment Act and the Act as whole. This opinion is re-enforced by the contents of the Second Reading Speech and the Explanatory Note which accompanied the Bill's introduction into Parliament.

The Text. 28 The plain and natural meaning of the prohibition is that, as from the announcement date, an approved gaming device cannot be authorised under the legislation to be kept used or operated in a hotel that is part of a "retail shopping centre". It is true the definition also includes not only a retail shopping centre (within the meaning of the Retail Leases Act 1994) but also "any adjoining building". The focus, however, is on a hotel that is "part of a retail shopping centre or proposed retail shopping centre", or "that was part of a retail shopping centre within the previous twelve months". 29 Two points can be made: first, the language chosen emphasises, in my opinion, the precise connection intended to exist between the retail shopping centre and the adjoining building in order that the prohibition should apply. The phrase, any "adjoining building" reads naturally in its context as a building which is in such proximity to the shopping centre, it may be said that a hotel in that building is "part of a retail shopping centre". Such language is not apt, without a forced, or strained reading, to describe a building which is separated by a busy suburban road and footpath from a nearby shopping complex. Secondly, had the legislature intended to catch within its prohibition hotels and buildings which were "nearby", "near to" or "neighbouring", it would have been a simple matter to use such terminology. 30 The second defendant's submissions included an argument that phrases such as "neighbourhood", "neighbouring", "immediate vicinity", "immediate proximity" are to be found in the Liquor Act in various sections; and that this factor lends weight to the proposition with the word "adjoining" should be construed in a broad and flexible manner. It would be consistent, so that argument runs, for the Licensing Court to have the flexibility to determine whether a building was "adjoining" by having regard to whether the premises were near enough to a shopping centre so as to give rise to an apprehension that persons using the centre might be distracted from the ordinary use of the shopping centre, presumably by the presence of gaming machines. As I have said, if that were the legislative intent, it would have been a simple matter for the language of the section to reflect that the prohibition was to extend to include, for example, any hotel in a building "near" the shopping centre; or in its "immediate vicinity". With such phrases readily available within the framework of the existing legislation, it seems to me that a deliberate decision has been made to choose a much narrower concept, precisely to avoid the flexible, but inherently uncertain, "discretionary considerations" underpinning those phrases in favour of a more precise, exact prohibition. 31 I note also that in the Amending Act there is an identical prohibition which prohibits approved gaming devices in any part of the premises of a registered club "that are part of a retail shopping centre or proposed retail shopping centre". (Section 79B). This supports my view that the legislature has carefully and deliberately selected a relatively precise and reasonably exact situation for the extension of the prohibition. 32 This approach to the language of the section is further reinforced, in my opinion, by the narrowness of the definition of "retail shopping centre" which has been adopted for the purposes of the Liquor Act legislation. The definition is that found in the Retail Leases Act 1994. It is in the following terms: -

" retail shopping centre means a cluster of premises that has all the following attributes: (a) at least 5 of the premises are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1, (b) the premises are all owned by the same person, or have (or would if leased have) the same lessor or the same head lessor, or comprise lots within a single strata plan under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 , (c) the premises are located in the one building or in 2 or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops, (d) the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade." 33 It is to be noted that the word "adjoining" appears in paragraph (c) of this definition. Its context, at least at first blush, requires it to be interpreted narrowly. To give it any wider interpretation would deprive the following words - "or separated only by common areas or other areas owned by the owner of the retail shops"- of any effect. This gives support to the proposition that, from a textual point of view, the word "adjoining" in s 161A(1)(a) is likely to be construed in a similar manner.

The Purpose and Policy of the Legislation 34 A very clear indication of the purpose and policy of the legislation is given by the definition of "a retail shopping centre" which I have set out above. It is clear that, far from there being any general prohibition on gaming machines in hotels within shopping areas generally, the prohibition is, relatively speaking, quite limited. It is a relatively confined type of shopping centre which is the subject of the prohibition. Well known "shopping centres" such as Westfield Shopping Towns would, prima facie, be comprehended within the definition and caught by the prohibition. 35 A great majority of suburbs in the City of Sydney have hotel licenses in or near their shopping areas. Hotels are to be found distributed throughout the shopping streets of the central business district of Sydney and other main cities in the State. Almost all, if not every country town in New South Wales has an hotel or hotels interspersed or located in its shopping or commercial centre. Many of these hotels have gaming machines in them for the enjoyment of their customers. It is plain that the new legislation permits and does not restrict the granting of new hotel licences (or the relocation of existing licences) in cities throughout the State, and in conventional strip shopping centres whether they be in suburban areas or country towns. In many of these cases, s 161A of the Act will have no prohibitive effect upon these new or relocated licences at all so that they may, subject to there being appropriately authorised by the Liquor Administration Board, offer their patrons the enjoyment of gaming machine facilities. 36 Members of the public, often in many thousands each week, do now and will in the future, pass by such establishments as part and parcel of their every day life. They may be shoppers, office workers, visitors or tourists. It is no part of the new legislation to prohibit or condemn the natural and resultant proximity between these hotels and the iterant public. This is not to say the general harm minimisation requirements of the Liquor Act do not apply to those hotels as they do to all hotels authorised to keep use and operate approved gaming devices, wherever those hotels may be situated. 37 The scope and purpose revealed by the Amendment Act is, in so far as it prohibits approved gaming devices in retail shopping centres, a relatively confined prohibition; and one which does not operate, subject to the harm minimisation strictures of the previously existing and new legislation, to prevent the proximity of such gaming devices to shopping areas generally. With this purpose in mind, it appears clear, in my opinion, that the inclusion of "any adjoining building" in the definition of "retail shopping centre" in s 161A was designed to do no more than prevent the plain abuse of s 161A(2) by the location of the hotel with authorised gaming devices on the common boundary of or sharing a physical connection with a retail shopping centre as defined. Such an interpretation is consistent with and fulfils the manifest purpose of the new legislation creating the prohibition. It also addresses adequately, in terms of the language of the section, the minimisation of harm associated with misuse and abuse of gambling activities (s 2B of the Liquor Act). 38 The natural meaning of the language of s 161A, in its context, accords with the general and particular objects of the legislation as I have found them to be, so that it is not necessary to give any additional, clarified or extended meaning to the phrase "any adjoining building" (Kingston v Keprose supra).

39 I am further fortified in this view of the new legislation by the fact that Division 1A (ss 171A-F) requires, in the great majority of cases where the Liquor Administration Board is asked to authorise gaming machines in hotels after 28 March 2000, that an hotelier furnish a social impact assessment in connection with the application. I shall set out in full the provisions of s 171(C) to (F) inclusive. It is important, however, to note that s 171A stipulates that the provisions established in 1(a) are "a means … of giving effect to the Gambling Harm Minimisation objects of the Act"

" 171C Social impact assessment of applications to which Division applies (1) A social impact assessment is required to be furnished by the applicant in connection with an application to which this Division applies. (2) The Licensing Court or Board, whichever is dealing with the application, may dispense with the need for a social impact assessment if satisfied that an assessment is not necessary in the particular circumstances of the case having regard to the likely minimal social impact of the total number of approved gaming devices that would be authorised to be kept in the hotel. (3) The Licensing Court or Board is required to give its reasons for any decision to dispense with the need for a social impact assessment. 171D Content of social impact assessment (1) A social assessment of an application to which this Division applies is required to assess the likely impact on the local community of the granting of the application. (2) For the purpose of any social impact assessment, the local community comprises the people in the area or group from which the persons utilising the services and facilities of the hotel are likely to be drawn. (3) The social impact assessment is to address social and economic impacts and set out any net social and economic benefits to the local community. (4) The social impact assessment is to contain details of the following: (a) the number of approved gaming devices already kept in the hotel and the number kept in other hotels having the same or a similar local community (and by any registered clubs in the neighbourhood), (b) past increases in the number of approved gaming devices so kept, (c) the public demand for gambling within the local community, (d) the incidence of problem gambling within the local community, (e) the availability of problem gambling services in the local community, (f) the action proposed to be taken by the hotelier to minimise any harm associated with an increase in the number of approved gaming devices available within the local community (including the action proposed to be taken to protect children), (g) any likely change in the demands on public transport, any likely employment consequences for other businesses in the local community and any likely change in the demands on welfare, health and housing services in the local community, (h) the result of consultation about the application with the local community, the local council in whose area the hotel premises are or are to be situated, the Department of Community Services, the Department of Health, organisations concerned with the social consequences of gambling and other appropriate bodies, (i) any other relevant matter (5) The regulations may make further provision for or with respect to the furnishing or content of social impact assessments under this Division. 171E Consultation on application and social impact assessment (1) After the applicant has furnished the Licensing Court or the Board with a social impact assessment in connection with an application to which this Part applies, the applicant must: (a) place a copy of the application and the social impact assessment on public exhibition at the premises to which the application relates, and (b) publish an advertisement about the application in a local newspaper circulating in the area in which those premises are situated, and (c) provide a copy of the applications and social impact assessment to the Director of Liquor and Gaming and the local council at or before the time the advertisement is published. (2) The advertisement must: (a) be in the form approved by the Board, and (b) state that a copy of the application and social impact assessment will be available for public inspection at the premises specified in the advertisement, and (c) invite any written submissions on the matter to be made to the Board within 30 days after the publication of the advertisement. (3) The application cannot be determined by the Licensing Court or Board until after the expiration of that 30-day period. 171F Consideration of social impact assessment and submissions (1) The Licensing Court or Board is required to take into account any social impact assessment furnished by the applicant in connection with an application to which this Division applies and any written submissions made on the matter within the 30-day period referred to in section 171E. (2) Accordingly, the Licensing Court of Board may: (a) in the case of a premises-related application - impose a condition on the hotelier's licence permitting or prohibiting the keeping of all or any of the approved gaming devices on the premises to which it is proposed to move the licence or permitting the keeping of the devices on those premises for a temporary period or subject to other conditions, or (b) in the case of a device-related application - grant to reject the application (in whole or in part), grant the application for a temporary period or impose conditions on the grant of the application. (3) The power conferred by subsection (2) applies whether or not the provisions of this Act dealing with the determination of those applications confer that power." 40 The existence of these provisions answers another of the second defendant's submissions. This submission was that the more flexible interpretation ought be accepted because it will enable the Licensing Court to approach its task by reference to the likely impact on members of the public, having regard to the particular facts and circumstances applying in the relevant locality. Of course, these provisions, of themselves, do not entirely negate the validity of the wider construction contended for by the defendant. They do, however, in my opinion, rob the submission of a great deal of its sting. The width of the matters which are required to be addressed in the social impact assessment, the input from those community groups which are entrusted with legitimate concerns in relation to matters pertaining to gaming; and the wide powers of the Board itself, in dealing with the social impact assessment, are strong indicators to show that the legislative package is of ample width to deal with the relevant issues. For example, the Board may refuse to allow the keeping of any approved gaming devices on the premises and may condition the licence to that effect. It may approve the keeping of a certain number of machines for a temporary period or impose conditions in connection with any authorisation it allows. These decisions are to be made against the background of the considerations entrusted to the Board to take into account arising out of the social impact assessment and any written submissions which emerge from the requisite advertising process. Such submissions would include submissions from the local council.

Second Defendant's later Written Submission 41 The second defendant, in its later written submission made two further points in connection with the "purposive" matter dealt arising out of the existence of Division 1A and the provisions of ss 171A-F. 42 First, the second defendant pointed to the fact that the plaintiff, by reason of an "exception" contained in the Amendment Act, in the event that the prohibitive section does not prevent him from applying for approved gaming devices, will not be required to furnish a social impact assessment to the Board. This appears to be correct. There is an unusual feature to the plaintiff's application. The hotelier's licence he seeks to remove to the new premises at Railway Parade, Chatswood was, until relatively recently, a trading licence situated in the Zenith Centre at 821 Pacific Highway, Chatswood, a distance of perhaps only 100 metres or so from the proposed premises. It would appear to be common ground that the proposed removal is removal of the licence within the same neighbourhood. Such a removal is expressly exempted from the requirements of the Division by the terms of s 171B(1)(a) and (b). These sections are as follows: " 171B Application of Division (1) This Division applies to the following applications under this Act: (a) an application under section 40 (1) (b) that is for the removal of a hotelier's licence to a place outside the neighbourhood of the premises from which it is proposed to remove the licence (a premises-related application) (b) an application under section 161 that is for the keeping of approved gaming devices in a new or re-located hotel (a device-related application). For the purposes of paragraph (b), a new or re-located hotel is a hotel that was not the subject of a hotelier's licence before 12pm on 28 March 2000 or whose licence was removed after that date to a place outside the neighbourhood of the previous premises." 43 As I understand the purport of the section I have set out, the plaintiff, in seeking authorisation for poker machines at the new premises (which he is required to do under other parts of the legislation) would not be obliged to furnish a social impact assessment under Division 1A nor would the other requirements of the Division apply to his application for authorisation. 44 This "exception" in favour of the holder of a hotelier's licence which already exists in the neighbourhood is a sensible recognition of the fact that his licence is already part of the neighbourhood structure. Since he will already, most likely, have permission to have some type of approved gaming device in his premises, (and the potential to add to the range and number of those devices) the legislature has recognised he is in a different position from applicants who may wish to bring new licences to the neighbourhood. It is for this reason he is not required to face the additional hurdle of the social impact assessment system, a hurdle which nevertheless, must be confronted by all who wish to move a licence from outside the neighbourhood to a new location or who wish to obtain a new licence. 45 The fact that the plaintiff is in this favoured position , however, does not appear to me to militate against the construction I have found. It merely confirms my view of the scope and purpose of the section. It could not be suggested that there are different meanings to be given to the word "adjoining" depending on whether the removal was from outside or inside the neighbourhood. The better view is that the true purpose of the legislation emerges from a consideration of the general situation envisaged by the Act rather than by an exceptional and unusual exemption from its requirements. 46 Secondly, the later written submission makes the point that the plaintiff's reply submission misunderstood the different functions of the prohibition in s 161A and the matters arising under a social impact assessment. Under s 171D, it is said, the matters which are to be addressed in a social impact assessment do not include impacts on retail shopping centres as such. 47 This submission is only partially correct. It is true s 161A prohibits entirely, in effect, the keeping use or operation of approved gaming devices in hotels in "retail shopping centres" (as defined). One manifest legislative intent is a recognition that in those centres, at least, approved gaming devices are, for the future, to play no part. No social impact assessment is needed in that situation, since Parliament's view is that there should be a categorical prohibition. As I have endeavoured to show, however, this prohibition is not intended, at least at this stage, to flow over into shopping or commercial areas generally. It is, for the moment, possible that new or re-located hotels in such shopping or commercial areas will be permitted to have poker machines. They have no absolute entitlement, however, to this privilege but must satisfy the Board, by way of the social impact assessment system, and its potential for community and council participation, that authorisation should be given. The legislature has set out the matters which are to be considered as part and parcel of the system. These matters are wide ranging, evidently important and varied. The focus, however, is on the aspects of gaming which may present a potential danger in the local community eg, problem gambling, the social consequences of gambling, the services available to address problem gambling, the action proposed to be taken by the hotelier to minimise any harm associated with an increase in the number of approved gaming devices available etc. all in the context of the local community where the premises are situated. Although the functions of the prohibition section and the authorisation division operate at different levels and in different ways, they are in my opinion, essentially concerned with the same problem. They each address the same problem, albeit in different ways. The extent to which the second defendant's submission in this regard is partially correct does not persuade me to take a different view of the interpretation of the section. 48 It must also be said, in the context of the matters I have been discussing, that the Act does not, as presently framed, make provision for an objection on the basis that a proposed hotel (with proposed gaming devices) is in the immediate vicinity of or close to a shopping complex (as defined in the Retail Leases Act 1994). I would wish to make it clear that nothing in this judgment is intended to give any support to the proposition that there is something inherently inappropriate in the presence of gaming machines in a hotel which is to be situated in a location which is not far from (but not part of) a "retail shopping centre" as defined. On the other hand, it is the province of the Liquor Administration Board to exercise the discretions entrusted to it by the new and previously existing legislation when considering an application for authorisation and the material furnished in a social impact assessment. Each case will turn on its own facts and its merits will be judged on its own circumstances, having regard to the specific matters required by the Act to be taken into account by the Board.

Second Reading Speech and Explanatory Note 49 As I said at the outset, each party has supported its position by reference (inter alia) to the Second Reading Speech and the Explanatory Note. As discussed in argument, I had some doubts about the utility of resort to this material since it did not seem to me that the question of interpretation involved an ambiguity in the strict sense of the word. Rather, it concerned a determination of the meaning of the word "adjoining" in its particular context, and having regard to the scope and purpose of the statute. Both parties, however, insisted that I take these matters into account and I have done so. 50 The first passage in the Second Reading Speech of Mr Face, Minister for Gaming and Racing commenced as follows: - "The Gambling Legislation Amendment (Gaming Machine Restrictions) Bill represents a further important step along the way towards minimisation of gambling related harm in the community and addressing community concerns about the growth of gambling." 51 Later the Minister said: - "In other words, people may criticise gambling but in a final analysis they would be reluctant to see its prohibition. Instead, the focus is on tighter controls to achieve two broadly overlapping goals; first and foremost, to minimise the detrimental impact of gambling; and second to ensure that any expansion in gambling opportunities occurs with a clear understanding of what the likely impacts will be on the community." 52 A passage much relied upon by the second defendant appears on the next page of the Second Reading Speech. I shall set it out in full. "The Bill also prohibits any further growth of a practice that is widely regarded as distasteful and inappropriate, that is, the location of gaming machines in shopping centres. …overall, the measures will ensure the future decisions on gaming machine installation and location will be governed by a rigorous testing of social considerations; that the specific circumstances and needs of the community in respect of gaming opportunities will be addressed; and the properly considered, tailored and flexible decisions will result." 53 Mr Austin QC argued that the last sentence is a pointer in the direction of interpreting the word "adjoining" in a broad way so as to enable the Licensing Court to address the question by reference to a range of situations which would change from place to place. I do not agree; in my opinion, the passage is dealing with the social impact system rather than with the prohibition section. True it is that that the first sentence refers to the prohibition. The remainder of the paragraph, in my opinion, does not. For this reason, I do not think this passage is of any particular assistance to me. 54 Further on in the Speech, the Minister had the following to say: - "In the case of a hotel seeking to be established - and to operate gaming machines - within a shopping centre, the Bill makes the Government position plain. New gaming machine opportunities will not be tolerated there." 55 And again at the top of the next page: - "In the case of hotels seeking to become established within retail shopping centres, the Bill takes a categorical approach. While it again does not prevent the establishment of hotels within those centres, it will prevent them from operating gaming machines … this measure recognises and addresses clear community concerns about the location of gaming machine facilities in locations that are often confined, and principally designed to attract families and others for their conventional shopping activities. The Government acknowledges the very real and sincere apprehension about the availability of gaming machines in those centres imposing an especially significant distraction for those who have otherwise come to a centre for essential family shopping purposes - for example, to purchase the weekly groceries. Accordingly, the Bill prevents gaming machines being authorised to be kept, used or operated in a hotel that seeks to be established within a retail shopping centre." 56 The final two passages of relevance appear towards the foot of the same page: - "A similar approach has been adopted in respect of hotels that may have been established for some time and, through intervening development, become part of a retail shopping centre. Those hotels will also be limited to operating the number of machines they were authorised to operate as from the time the place becomes a shopping centre." "A retail shopping centre is to be defined in the same way as that term is used in the Retail Leases Act 1994 and will include a building adjoining such a centre. This will ensure, for example, gaming machines will not form part of conventional suburban shopping malls or complexes, or be in close proximity to them. Further, there are significant and justifiable concerns about future related developments, these will also be examined to determine whether regulations should be made to further broaden the definition, or to refine it for an appropriate future circumstance." 57 The Explanatory Note does not take the matter much further; the "over view" of the Bill is, relevantly, in the following terms: - "The object of this Bill is to restrict the keeping of additional poker or other gaming machines in clubs and hotels. In particular, the Bill: - (b) prohibits the use of gaming machines in hotels within retail shopping centres, and (c) requires a social impact assessment to be made before … gaming machines are installed in a new hotel or a hotel whose licence is transferred from another locality." The "Outline of provisions", relevantly, states: - "Schedule 2(1) inserts proposed s 161A into the Act to prohibit poker machines and other gaming machines in hotels that are within retail shopping centres (including in any adjoining building). The prohibition will apply as from 12 pm on 28 March 2000 but will not affect the keeping of gaming machines in any such hotel that was authorised before that time." 58 I am not satisfied that the Second Reading Speech or the Explanatory note are of great assistance in the present case. It will be observed however that the Minister explained the key phrase (when referring to the part of the legislation containing the words "any adjoining building") in these words: - "This will ensure, for example, that gaming machines will not form part of conventional suburban shopping malls or complexes, or be in close proximity to them." 59 It will be seen that the Minister has introduced a new phrase, different from that which appears in the legislation. Counsel for the plaintiff argues however, that the use of the word "close" before "proximity" tends to suggest a meaning more consistent with "immediately adjoining" than with "near to" or "neighbouring". Counsel for the second defendant suggested the phrase used by the Minister supports his interpretation. 60 I am rather drawn to the remarks of Meagher JA in Monier Limited v Szabo Volume 28 (1992) NSWLR 53 at 67 where his Honour said: - "I should, however, like to draw the profession's attention to one vexing problem which is becoming of ever increasing importance. One section of an Act … contains an ambiguity. This propels counsel to flood the Court with various Second Reading Speeches. These speeches, needless to say, do not in any way resolve the ambiguity in the Act. They do, however, raise many fresh ambiguities, hitherto unperceived. Moreover, they leave the Court in the position where there are no documents to clarify the ministerial ambiguities. The habit should cease." 61 In the present case, I think there is sufficient assistance to be derived from the Minister's Second Reading Speech and from the Explanatory note to say, at least, that the construction I favour is supported by the material contained in those intrinsic aids. There is, throughout the Minister's speech a repeated reference to activities "within" a retail shopping centre. The reference to the extension of the term "retail shopping centre" to include a building adjoining such a centre and the stated purpose for this lends strength to the proposition that the extension has been made to prevent deliberate circumvention of the statutory intention. For the reasons which I have given, I am of the opinion the construction urged by the plaintiff is sufficient to fulfil the purpose of the statute and no wider interpretation is, for that purpose, required.

62 In my opinion, the majority of the Licensing Court fell into error in this matter in relation to its interpretation of the statutory expression contained in s 161A of the new gaming legislation. In coming to this conclusion I am conscious of the fact that I have come to a different view than that expressed by both the learned chairman and Mr Dennis Collins, both very experienced and well regarded magistrates. I have, however, gained considerable assistance from their discussion of the issues involved. 63 Accordingly, I propose to allow the appeal and to grant relief to the plaintiff in the following terms: - 1. Declarations in terms of paras 1 and 3 of Summons herein 2. Orders in terms of Para 4, 5 and 6 of the Summons herein 3. The second defendant is to pay the costs of the plaintiff as agreed or assessed. The second defendant is to have a Certificate under the Suitor's Fund Act, if qualified. 4. The Exhibits may be returned.

Last Modified: 10/25/2000 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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Cases Cited (3)