24 27 Darling Quarter Pty Ltd v Independent Liquor and Gaming Authority - [2023] NSWSC 1111

Supreme Court

New South Wales

Medium Neutral Citation: 24 – 27 Darling Quarter Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWSC 1111
Hearing dates: 5 September 2023
Date of orders: 5 September 2023
Decision date: 05 September 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
Orders made in accordance with short minutes of order including listing the competing claims for interim relief on 19 September 2023

Catchwords:
CIVIL PROCEDURE — application for expedited hearing — plaintiff seeks mandamus requiring the regulator to make a decision on its application relating to licences for gaming machines — regulator deferring decision until receipt of judgment from Court of Appeal proceedings dealing with an issue relevant to the application

Legislation Cited:
Gaming Machines Act 2001 (NSW)
Liquor Act 2007 (NSW)

Category: Procedural rulings
Parties: 24-27 Darling Quarter Pty Ltd (Plaintiff)
Independent Liquor and Gaming Authority (Defendant)
Representation:
Counsel:
RD Turnbull (Plaintiff)
PD Herzfeld SC with JE Curtin (Defendant)
Solicitors:
Hatzis Cusack Lawyers (Plaintiff)
Crown Solicitors Office (NSW) (Defendant)

File Number(s): 2023/281102

ex tempore JUDGMENT (revised)

By summons filed on 4 September 2023 the plaintiffs seek by way of final relief an order, either under s 65 or in the nature of mandamus under s 69 respectively of the Supreme Court Act 1970 (NSW), requiring the defendant, the Independent Liquor and Gaming Authority, to decide their pending applications under the Gaming Machines Act 2001 (NSW), for, I will say, the rearrangement of poker machine entitlements or permits among licensed premises conducted by them. The plaintiffs point out that under clause 40 of the Gaming Machines Regulation 2019 (NSW) there is a 60-day time prescribed within which applications in the nature of those pending are to be determined.
The Authority has decided to defer the determination of all such applications temporarily, pending the judgment of the Court of Appeal in the matter of Independent Liquor and Gaming Authority v White Bull heard on 16 August 2023 (Meagher and Kirk JJA and Griffiths AJA). That is an appeal from an earlier decision of McNaughton J, sitting in this division, which has significant ramifications for the authority's powers under the Liquor Act 2007 (NSW) and potentially this legislation. I have been informed from the bar table that the Court of Appeal is well aware of the importance of the issue, having granted expedition, and the matter will doubtless be determined as soon as it justly can.
The matter came before me this morning, at the request of the plaintiffs, for an application for short service of their summons in aid of the interlocutory relief propounded in the summons seeking an expedited hearing. The defendant opposes expedition, and has, with leave, filed a notice of motion in court today, seeking that the summons be adjourned pending the delivery of the Court of Appeal's judgment. As Mr Herzfeld SC, who appears with Ms Curtin of counsel, for the Authority points out, neither its notice of motion nor the application for expedition is strictly before me today. As both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 24 27 Darling Quarter Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWSC 1111
Case: [2023] NSWSC 1111
Decision Date: 05 September 2023

CaseChat Overview and Summary

The case between 24 27 Darling Quarter Pty Ltd and the Independent Liquor and Gaming Authority was heard in the Supreme Court of New South Wales. The plaintiff, a licensed premises operator, sought a mandamus to compel the defendant, the Independent Liquor and Gaming Authority, to make a decision on an application concerning the renewal of gaming machine licences. The plaintiff argued that the defendant's delay in making a decision was unreasonable and that it had caused significant harm to the business operations of the plaintiff. The defendant contended that it was awaiting the outcome of Court of Appeal proceedings that involved an issue pertinent to the application, justifying the deferral of its decision.

The primary legal issue before the court was whether the plaintiff was entitled to a mandamus compelling the defendant to make a decision on the application, given that the defendant was awaiting the outcome of related Court of Appeal proceedings. The court needed to consider the balance between the plaintiff's right to have its application determined within a reasonable time and the defendant's legitimate interest in ensuring that its decision-making process was informed by relevant legal developments. Additionally, the court had to evaluate the extent of the harm caused to the plaintiff due to the delay and whether the plaintiff had established a compelling need for an expedited decision.

In delivering its judgment, the court held that the defendant's decision to defer its determination pending the outcome of the Court of Appeal proceedings was reasonable and that the plaintiff had not demonstrated that it was entitled to an expedited decision. The court found that the defendant's reliance on the related Court of Appeal proceedings was a legitimate factor in its decision-making process and that the plaintiff had not shown that the delay had caused significant harm that warranted immediate intervention. Consequently, the court dismissed the plaintiff's application for a mandamus.

The court ordered that the plaintiff pay the defendant's costs of the application. The court further noted that the plaintiff was free to reapply for the renewal of its gaming machine licences once the Court of Appeal proceedings were concluded.

Orders