WAM Hotels Pty Limited v Independent Liquor & Gaming Authority [2026] NSWCATAD 45;

1. Sections 60-62 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) relevantly provide as follows:

60 Operation and implementation of decisions pending applications for administrative review

(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

61 Restrictions on ordering stay of proceedings

(1) The Tribunal may not:

(a) make an order under section 60 unless the administrator who made the decision to which such an order would relate has been given a reasonable opportunity to make submissions in relation to the matter, or

(b) make an order varying or revoking an order in force under section 60 (including an order as varied) unless the following persons have been given a reasonable opportunity to make submissions in relation to the matter:

(i) the administrator who made the decision to which such an order would relate,

(ii) the person who requested the making of the order,

(iii) if the order has previously been varied by an order or orders under section 60 - the person or persons who requested the making of the only, or the later or latest, such order.

62 Conditions of stay order

(1) An order in force under section 60 (including an order that has previously been varied on one or more occasions) is subject to such conditions as are specified in the order.

(2) Any such order has effect:

(a) if a period for the operation of the order is specified in the order - until the expiration of that period or, if the application is decided by the Tribunal before the expiration of that period, until the decision of the Tribunal on the application takes effect, or

(b) if no period is so specified - until the decision of the Tribunal on the application takes effect.

The Material Relied On By the Applicant in Support of the Stay Application

1. The applicant, who was represented by solicitor and counsel at the hearing, relied on the following:

(1) An affidavit of Wayne Arthur Lambert dated 15 December 2025 (and Exhibit WL-1)

(2) Submissions dated 28 November 2025, referring in turn to a number of documents that had been provided to the decision maker and which were before the Tribunal.

1. The applicant gave oral evidence at the hearing, where he was represented by solicitor and counsel, and he was cross examined by counsel for the second respondent.
2. In his written submissions of 28 November 2025,the applicant set out some of the background and history of the matter and identified the findings that had been made against both the applicant (the licensee) and Mr Lambert. In summary, the applicant has been the leasehold owner of the Hotel since November 2020 and its licensee since 10 December 2020. Mr Lambert has been the approved manager of the hotel since 10 December 2020.
3. As noted above, the subject of the application for review is the decision to impose a penalty under s 131(2)(a)(i) of the GM Act. This followed findings that the applicant had contravened the following provisions of the GM Act:

(1) Section 47C:"A hotelier or club must not permit a cash dispensing facility to be used or to be installed or located in any part of the hotel or club premises if the facility is capable of providing cash from a credit card account";

(2) Section 133(1): "A hotelier or club must ensure that each approved gaming machine that is kept in the hotel or on the premises of the club is connected to an authorised CMS [centralised monitoring system]"; and

(3) Section 129(3)(b): "that the hotelier or club has engaged in conduct that has encouraged, or is likely to encourage, the misuse and abuse of gambling activities in the hotel or on the premises of the club concerned".

1. In addition, Mr Lambert was reprimanded under s 131(2)(j) of the GM Act in relation to findings against him under s 129(3)(h)(i) that, as a close associate, he "knew or ought reasonably to have known that the hotelier ... or licensee was engaging (or was likely to engage) in conduct of the kind to which the complaint relates"; and under s 129(3)(h)(ii), he had "failed to take all reasonable steps to prevent the licensee from engaging in conduct of that kind".
2. While the application for review apparently was styled as an "all grounds merits review", the main basis appears to be the contention that the penalty was "manifestly excessive and disproportionate to the objective seriousness of the breach, having regard to mitigating factors and parity with comparable section 129 decisions."
3. In substance, and by reference to matters upon which the applicant elaborated at the hearing, the applicant contends that if it were required to pay the penalty before the appeal is determined, this would constitute a denial of procedural fairness as the hotel would not be able to continue trading and that would pre-empt a hearing on the substantive appeal.
4. At the hearing of the stay application, the applicant handed up a chronology of events at the hearing. The main focus of the evidence given by Mr Lambert was the financial situation of the business. He explained that the hotel is located near Allianz stadium at Moore Park and he indicated that it is heavily dependent on what games are taking place there. He informed the Tribunal that the Allianz stadium was closed for a period of 12 weeks which had a significant impact on its trading.
5. The applicant provided some selected printouts that were said to record takings during a particular period, specifically, the week ending 5 October 2025 to week ending 14 December 2025. In his affidavit at paragraph 10, Mr Lambert had stated that from his "knowledge and access to the Applicant's accounting and banking records kept in the ordinary course of business", if the applicant were required to pay the fine by the due date, it was unlikely that the applicant would be able to pay the rent for December 2025 and January 2026, nor meet other lease outgoings and other operational and trade debts when they fall due. Under cross examination, he was asked about the business's management accounts such as profit and loss statements. He repeated his reliance on the daily takings sheets (which as noted were for a brief period only) and responded that he was the only person who works there.
6. Aside from those takings records, the applicant provided an invoice from Energy Australia of $79,834.82 which records that $74,908.21 is overdue. No other financial records were provided, though there was correspondence with the landlord demonstrating that there had been issues with payment of the rent earlier in 2025.
7. While the affidavit evidence was filed on 16 December 2025, the applicant was asked about the takings for the week of the test match which took place on 4-8 January 2026. He stated that in that week, the takings were approximately $70,000-$80,000, and that was used to pay December rent and staff.
8. The applicant also produced in evidence a November bank statement for a Bank of Queensland account. He was asked about a deposit of $51,500 made on 18 November 2025 which he indicated was from his partner. He stated that he could not rely on his partner for future assistance but did not elaborate.
9. He asserted that if the applicant were required to pay the fine it would have to close the doors, that is, that what was said in the December affidavit also applies at the time of hearing.

1. As noted above, the applicant's overriding contention was that if required to pay the penalty, it would go out of business. The applicant also contended that the prospects of success on appeal were reasonable, and relied on two other decisions of the decision maker which it submitted demonstrated the disproportionate nature of the penalty imposed on the applicant. In each case, there had been a breach of the ATM provision, yet in each case while the amount that had been withdrawn from the ATM was greater than in the case the subject of this application, the penalty was considerably lower.
2. The applicant initially accepted that the respondent had accurately set out the legal framework governing the power to grant a stay. In submissions in reply, he contended that the Tribunal should read s 60(2) of the ADR Act, which provides that a stay may be granted if the Tribunal considers it appropriate "to secure the effectiveness of the determination of the application" as empowering the Tribunal to grant a stay if there is a "real risk that the applicant could go out of business".
3. He also contended that there were "strong prospects of success" on appeal; and urged the Tribunal to find that the applicant's partner is no longer supporting him and while there had been forbearance from the landlord to date, this could not be expected to continue and payment of the fine would cause "irreparable and significant damage to the applicant".
4. The applicant contended that there was a likelihood that the applicant would go out of business if required to pay the penalty and also noted that Mr Lambert (who had said in evidence that he was a single parent) would be "on the street" if the decision was not stayed.
5. It was also submitted that there was no identifiable prejudice to the respondent if the decision to enforce the penalty were stayed, and that it was in the public interest that the decision be stayed pending the determination of the substantive appeal.

1. The second respondent relied on, and expanded orally on, the written submissions filed on 12 December 2025.
2. Section 60(1) of the ADR Act makes clear that an application for review does not suspend the operation of a decision, but the Tribunal has a statutory power to stay the operation of a decision if "it considers appropriate to secure the effectiveness of the determination of the application": s 60(2) of the ADR Act.
3. The second respondent referred to the principles set out by the Appeal Panel in Queensland Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 at [31]- [33] (Qld Protection) where the Appeal Panel referred to the decision in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) where it had been decided, at [13], quoting Williamson v Director General, Department of Transport [2000] NSWADT 165, that the phrase "to secure the effectiveness of the hearing" involved circumstances where absent a stay, a hearing will not be fully effective or will be jeopardised or rendered nugatory. That is not limited to where an applicant would go out of business but includes a situation where the applicant would suffer irreparable loss in the sense that no recompense for it can be obtained in the event the application is ultimately successful.
4. The respondent also referred to the matters listed in s 60(3) of the ADR Act which are also to be taken into account. These include the interests of any person who may be affected, any submissions made by or on behalf of the original decision maker, the public interest, and the applicant's prospects of success on review: Qld Protection at [32].
5. The respondent contended that this was not an appropriate case for the exercise of the discretionary power. There was insufficient evidence to sustain the applicant's contention that payment of the penalty would cause the requisite degree of prejudice to the applicant's trading viability. The respondent drew attention to the paucity of evidence about the applicant's financial position, noting that no management accounts had been provided. The trading account in respect of which the November 2025 statement was presented in evidence was said to be the only account of the business.
6. The applicant had given evidence that his partner was willing to support the business and he also had potential access to loans.
7. This was not a case where, for example, a licence had been taken away and in the absence of it being restored pending the hearing, a business was simply unable to trade (a situation that was not retrospectively compensable). Rather, in this case, the applicant has retained its licence and is therefore not prevented from continuing to trade. If it is ultimately successful on the appeal, it would not incur any "non-recompensable loss".
8. The applicant bears the onus of establishing that the criterion in s 60 is made out and the respondent submitted that there was insufficient evidence to support the grant of a stay.
9. As for the contention that the applicant had strong prospects of success on the ultimate appeal, the respondent contended that there was ample evidence to justify the authority's rejection of the applicant's invitation to give it a warning only rather than to impose a penalty. There was also likely to be a real contest of evidence at the hearing of the review application in relation to the explanations provided for the fact that the three machines were not connected to an authorised CMS.
10. Similarly, the respondent contended that in relation to the ATM breach, there was a need to give weight to specific and general deterrence, and those matters would also be canvassed at hearing, along with issues about the knowledge of the applicant and Mr Lambert.
11. As for the cases provided in support of the contention that the penalty was disproportionate, neither involved a breach of the CMS requirement. To the extent that the applicant relied on the director's lack of knowledge the respondent submitted that this was inconsistent with the legislative emphasis on proactivity.
12. For those reasons, the respondent submitted that the prospects of success could not be considered determinative and the penalty was arguably consistent with the objects of the Act which include harm minimisation.

1. While the applicant had initially relied on s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), it was accepted at the hearing that the relevant provision that empowered the Tribunal to grant a stay was s 60 of the ADR Act. Section 60 makes clear that the default position is that the making of an application for review does not affect the operation of the decision under review nor does it prevent action to implement the decision. Thus, the penalty is payable, and by the due date, in the absence of an order of the Tribunal staying the decision.
2. The key criterion for making such an order is that it is "appropriate to secure the effectiveness of the determination of the application". Given the clear terms of s 60(1), it is apparent that it is for the applicant to adduce evidence sufficient to displace the default position.
3. In a passage approved by the Appeal Panel in Qld Protection, the Tribunal in Loveday at [12], (Hennessy DP) stated:

"... [Section] 60(2) and (3) confer a single discretionary power on the Tribunal to grant a stay and there is no threshold test that needs to be met. Rather, the question of whether a stay is necessary to secure the effectiveness of the hearing is a mandatory consideration that the Tribunal must take into account when exercising the discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39."

1. Hennessy DP referred to case law from the (then) Administrative Appeals Tribunal considering an analogous provision in the (former) Administrative Appeals Tribunal Act 1975 (Cth) and concluded that the phrase "to secure the effectiveness of the determination of the application" includes taking into account circumstances where the applicant is likely to suffer irreparable harm in the sense that no recompense for it can be obtained even if the application for review is successful: Loveday at [15].
2. In both Loveday and Qld Protection, the reviewable decisions involved the cancellation/refusal of a licence. By contrast, in this case the decision under review does not prevent the applicant from operating its business. Rather, the applicant's contention is that its financial situation is such that payment of the penalty would negatively affect the continued viability of the business.
3. In addition to considering whether a stay is appropriate to secure the effectiveness of the determination of the application for review, the Tribunal is required to consider the matters set out in s 60(3) of the ADR Act: specifically, the interests of affected parties, any submission made by the decision maker, and the public interest. The Tribunal may also consider the prospects of success of any review which, as noted above, the applicant contended were strong.
4. The Tribunal is not in a position to assess the merits of the application for review. However, the Tribunal accepts the respondent's submission that there was material upon which it was open to the decision maker to make the decision that was made. It is also apparent from the parties' submissions that there will be significant contests of fact that will ultimately need to be resolved by the Tribunal at the hearing. These include but are not limited to, the knowledge of the applicant and/or Mr Lambert about the matters the subject of the adverse decision. While the applicant relied on some other decisions where the penalty was lower, the circumstances of the breaches are such that they cannot be considered reliable indicators of the magnitude of the penalty: clearly, each case will depend upon its particular factual circumstances and the nature of the breaches identified.
5. The applicant relied on its difficult financial circumstances. However, the evidence provided in support of that submission was limited. The applicant did not provide a comprehensive set of management accounts, instead relying on a table identifying "takings" over a period of some two months. While the material provided by the applicant suggested some financial difficulties, the Tribunal is unable, on the limited evidence provided, to find that without staying the decision, the hearing of the application for review will be "jeopardised" or "rendered nugatory" or that the applicant will suffer irreparable harm for which no recompense would be available: see Loveday and the decisions cited at [13]-[15]. Nor, in light of the clear statutory language in s 60 of the ADR Act, does it accept the submission made by the applicant that the test should be whether there is a "real risk" that the applicant will go out of business: the statutory test is set out clearly in s 60(2) of the ADR Act.

1. For the reasons set out above, the application for a stay of the decision to impose a penalty on the applicant is refused.
2. The temporary stay of the reviewable decision granted pursuant to the Tribunal's order of 27 January 2026 is lifted fourteen days after the date of this decision.

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.