Williams v Licensing Court of NSW

8 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2951/00 ANDREW DENZIL WILLIAMS v THE LICENSING COURT OF NEW SOUTH WALES & ORS

JUDGMENT Outline 1 Premises No. 227 Forest Road, Hurstville, adjoin a retail shopping centre within the meaning of the Retail Leases Act 1994 and are thus "a retail shopping centre" for the purposes of s161A of the Liquor Act 1982 (the Act). 2 On 20 March 2000 the Licensing Court of New South Wales gave to the plaintiff, Mr Williams, a conditional grant of an hotelier's licence in respect of those premises, and determined that "upon issue of the licence the following conditions shall be imposed … 31. No more than 15 poker machines and 5 approved card devices shall be installed on the premises for a period of five years from the date of the grant of the final order." 3 Section 161A of the Act was introduced by the Gaming Legislation Amendment (Gaming Machine Restrictions) Act 2000 which came into force on 9 May 2000. That section is as follows:

161A. 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 provided 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 for 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. 4 The question for determination in this action is whether the plaintiff is entitled to the benefit of s161A(4) and thus, upon final grant of the application conditionally granted, retains the right to have amusement devices on the premises even though they would otherwise be subject to s161A. Court Division 5 The proceedings should have been brought in the Common Law Division. I did not order that they be removed to that division because I had stated that I would hear them and all parties agreed that there was no purpose in this and that the hearing should take place without any formal transfer of division. Legislation 6 Section 4 is the definition section and it provides that "application" includes an application for a conditional grant of the application. Section 18 of the Act gives power to the court to grant licences and sets out the various forms of licence which may be granted. These include "a hotelier's licence" which is a licence that, subject to the Act and the conditions of the licence, authorises the licensee to sell liquor by retail on the licensed premises. 7 Section 20 of the Act gives power to the court to impose conditions to which a licence is subject. Section 40 of the Act provides a machinery for an application for a licence to be made as a conditional application if the premises to which the licence is to relate are proposed to be erected or proposed to be added to or altered in accordance with an approved plan, or where the premises are erected in respect of which consent to the proposed use or any change of use is required. 8 Section 60 is as follows: 60. Final grant of application

(1) The registrar may, on application, make a final grant of an application conditionally granted under section 40.

(2) The registrar is not to make a final grant of an application to erect, add to, or alter, premises unless the applicant for the final grant produces evidence by which the registrar is satisfied that the work of erection, addition or alteration has been completed substantially in accordance with the approved plan on the basis of which the conditional application was granted.

(3) Section 55 applies where an application is finally granted by the registrar under subsection (1) in the same way as it applies where an application is granted by the court.

(4) An application for a final grant of a conditional application may not be made: (a) before the expiration of the period within which an appeal against the conditional grant of the application may be lodged, (b) where such an appeal is lodged: (i) before the appeal is heard or determined or otherwise disposed of, or (ii) if the appeal is upheld, or (c) if the person making the request has any knowledge of proceedings instituted in any court as a result of which, if determined at the time of the making of the request, the registrar or the Licensing Court might be precluded from finally granting the application. 9 Section 146 provides for an appeal to the Supreme Court on a question of law by "a person aggrieved by an adjudication of the Licensing Court". Section 55 provides that where the court grants an application for a licence the licence may be issued by the registrar but is not to be issued until the prescribed fee is paid. Section 55(3) provides that where a registrar grants an application for a licence, it shall be issued on payment to the registrar of the prescribed fee. Section 160 provides that despite anything in any other Act it is lawful to keep, use and operate an approved gaming device in a hotel if the device is kept, used and operated as authorised by the Act and any conditions of the hotelier's licence. Section 161(1) and (2) provide 161. Authority to keep approved gaming devices

(1) On the application of a hotelier, the Board may impose a condition of the hotelier's licence authorising the licensee to acquire and keep in the hotel, and to permit the use and operation of, not more than 30 approved gaming devices.

(2) A condition in force under this section may be varied or revoked by the Board as provided by section 20 (Conditions of licences) but such a variation may not authorise the keeping, use or operation of more than 30 approved gaming devices. …

Section 182C provides 182C. Limitation on number of poker machines in hotels

(1) It is a condition of a hotelier's licence that not more than 15 poker machines may be kept, used and operated on the premises to which a hotelier's licence relates, unless the licensee holds a permit issued by the Minister for each poker machine in excess of that number that is kept, used and operated on those premises.

(2) A permit referred to in subsection (1): (a) may be acquired by a licensee in accordance with arrangements approved by the Treasurer from time to time, or (b) in the case of a permit that has been issued in accordance with arrangements referred to in paragraph (a)---may be acquired by a licensee, in accordance with arrangements approved by the Treasurer, from another licensee who is in possession of it.

(3) Arrangements referred to in subsection (2) (a) may include provision for determining an amount that is payable by a licensee as consideration for the issue to the licensee of a permit under this section.

(4) Nothing in this section affects the overall limit, imposed by section 161, of 30 approved gaming devices per hotelier's licence. 10 Counsel for the plaintiff in opening made two claims. First he said that the plaintiff claimed that a proper construction of the Licensing Court orders including its reasons and the plans showing the gaming areas demonstrates that the plaintiff obtained an entitlement to install the amusement devices - the subject of Condition 31 of the Conditional Grant - prior to 28 March 2000. Second he argued that on the proper construction of s182C, the plaintiff being the holder of a hotelier's licence would be entitled to install 15 poker machines in any event. I pointed out that this claim was not one encompassed by the orders sought in the amended summons and it was accepted that an amendment would be required. That was never brought forth and as I understood it that claim was abandoned. It is, however, perfectly clear in my view that any right under s182C is subject to the specific provisions of s161A, and no further attention need be given to that aspect of the matter. In any event any entitlement under s182C depends on the holding of an hotelier's licence. 11 The simple argument of counsel for the plaintiff is that the application for a conditional licence was an application finally determined on 20 March 2000; that this application would become the subject of a final grant pursuant to s60 upon the premises being built and adapted in accordance with the approved plan; and this would carry the authority for the 15 poker machines and the 5 amusement devices. This argument proceeded on the basis that the words in ss4 of 161A "given as a result of an application" should not be construed as synonymous with "given pursuant to an application that was finally determined", but that if the authority was part of a chain of events commencing with the final determination of the application for a conditional licence, then that was sufficient for the entitlement to be maintained. 12 To some extent the argument of Mr Rayment QC for the plaintiff is that the final determination of an application under s161A(4) should be equated with an adjudication of the Licensing Court under s146 of the Act. It seems to be accepted that the decision on an application for a conditional grant is an adjudication and this is supported by the fact that there was an appeal from the decision of the Licensing Court to grant the conditional application made to a judge in the Common Law Division of this Court, such appeal being brought pursuant to s146 of the Act. This would tend to show, and the plaintiff relies upon it, that conditional grant was an adjudication of the Licensing Court. This does not seem a matter of important because if the application includes a conditional application it was finally determined on 20 March 2000. That I find to be the position. 13 Section 60 is really a section empowering the registrar to make a final grant of an application conditionally granted. There may be some circumstances where the application would be dealt with by the court rather than the registrar, but it is clear that subject to satisfying the procedural requirements of s60(2) and s60(4)(c) the final grant would normally follow as a matter of course. That grant would be the grant of an hotelier's licence carrying the rights to apply for the authority for the poker machines and approved card devices. 14 Where the words "pursuant to" are used they tend to imply "under" or "following upon, consequent, conformable to, in accordance with": Brisbane City Council v Mainsel Investments Pty Limited [1989] 2 QdR 204 at 222, following Garbin v Wild [1965] WAR 72 where the meaning in the Shorter Oxford English Dictionary was accepted as appropriate. On the other hand the words "as a result of" carry an implication of causation and perhaps a sequence of linked events following on from a first event. In Deloitte Touche Tohmatsu v The Australian Securities Commission (1999) 15 ACSR 652 at 680, Lindgren J in discussing the phrase in s50 of the Corporations Law "as a result of an investigation" said: I think the words 'as a result of' are satisfied by the existence of a causal link between the appearance as to the public interest and the activity of an investigation.

Generally speaking, the words "arising out of" or "as a result of" would require a less direct or proximate relationship between cause and effect than the words "pursuant to" or "caused by". If one follows the commonsense test discussed by the High Court in March v E & M.H. Stramare Pty Ltd (1991) 171 CLR 506, or even the "but for test", this would support a finding that an authority for gaming devices flowed as a result of a final grant under s60 following on the determination of the conditional application. The authority would be obtained as a result of the conditional grant. See also Australian Securities Commission v Kavanagh (1993) 11ACSR 148. I consider this the proper approach. I should say that it was not really argued that had the final grant been made the authority for the gaming devices would not flow from that. 15 It follows from this that I consider that the plaintiff is not precluded by s161A(2) from obtaining authority for an approved gaming device because the plaintiff is entitled to the benefit of s161A(4). I have not overlooked the argument of the defendants that there may be little purpose in s161A(8) if that is the position. It seems to me that sub-section would not be entirely purposeless and in any event may stop unnecessary litigation. It may be there because it was thought some protection was needed in respect of applications commenced but not finally determined at the relevant date. 16 The plaintiff is entitled to a declaration in general accord with the claim in paragraph 1 of the summons that the conditional grant was a final determination within s161A(4) of the Liquor Act. I do not understand that there is any entitlement to a declaration as sought in paragraph 2. I will hear submissions on the final form of orders.

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