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)

1. 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.

2. 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.

3. 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 parties are here represented - the plaintiffs by Mr Turnbull of counsel - it seemed to me that I should attempt to cut the Gordian Knot in relation to such matters as behoves a duty judge, but as behoves the bar, perhaps, my efforts in that regard have been staunchly resisted. The question is, on the one hand, whether I should effectively expedite the hearing of the summons by making directions on a very tight timetable for the exchange of evidence and submissions, and fixing a hearing date, Mr Turnbull suggests this week; or whether I should list both the application for expedition and the motion for adjournment on a slightly looser timetable - only slightly - in a couple of weeks, as Mr Herzfeld submits.

4. In preparation for hearing from the parties this morning I have considered not only the summons, but also the affidavit of Richard Haines, the chief operating officer of the Universal Hotels Group, of which both plaintiffs are members. This sets out the history of the applications before the authority, and explains the commercial imperatives under which the plaintiffs are operating.

5. The question which arose in White Bull in relation to the Liquor Act was whether the authority had power to impose conditions of a certain type, as I understand it, which it had been more or less accustomed to imposing routinely. Probably, it would have imposed such conditions had it favourably determined the plaintiffs' pending applications. For completeness, I will record that the plaintiff has offered to submit to such conditions whether or not the authority has the power, at least in the interim, as a means of overcoming the difficulty that the authority conceives itself to be in, having regard to the White Bull decision.

6. I tend to accept at this interlocutory level the position advanced by Mr Herzfeld, that although the plaintiffs’ suggestion for breaking the impasse may be regarded as a pragmatic approach, it does not solve the problem because the question of power still has to be determined; and power cannot be conferred by acquiescence or consent. I am rather of the view, given the nature of the relief sought by the plaintiffs, that the hearing of the summons and its claims for final relief ought to be determined with a degree of celerity. I tend to be of the view, accepting that mandamus is a discretionary remedy, like all orders in the nature of prerogative writs, that the question of whether the Authority has the power to defer making a decision on a matter duly instituted before it is one of some importance which should be determined given the commercial imperatives affecting participants in the liquor industry. On the other hand, I have also expressed a view, to which I adhere, that participants in a regulated industry like the liquor industry have to factor in the operations of regulators like the Authority as part of the unavoidable commercial cost or risk of doing business. In an efficient market, both the regulator and the participants, in their respective spheres of operation, will attempt to work in a harmonious manner.

7. Although I was attracted to the idea that the adjournment application and the claim for final relief could be heard concurrently, especially given that orders in the nature of mandamus are discretionary, I am persuaded, albeit somewhat reluctantly, that the better part of valour in this particular case, from my point of view, is to list the competing claims for interim relief in the near future.

8. I have come to this conclusion for a variety of reasons, but chief among them is that, having due regard to the commercial position of the plaintiffs, I am satisfied that if expedition wins the day over adjournment, then a more or less early hearing date can still be fixed. I suppose, to put it in blunt terms, from the point of view of efficient justice, I do not think the plaintiffs could complain if the summons seeking mandamus filed in early September was ultimately determined, or at least heard, in early October, notwithstanding what I have referred to as the commercial imperative.

9. Additionally, it would seem to me that the authority is entitled to have the opportunity to prepare its position in regard to the proceedings. Having said that, there has been a good deal of very complex, extensive and mature correspondence between the parties. I gather from it that Mr Hatzis, the solicitor for the plaintiffs, is the solicitor for the respondents, and that the Crown Solicitors Office is representing the Authority as appellant, as one would expect, in the Court of Appeal. I would expect that there is very little between the parties that is not known about this issue. Having said that, I am proposing to list the motion filed in court today and the interim relief sought in the summons for determination. It would be my expectation, so far as it is relevant, that if the judge hearing the matter decided to expedite the hearing of the summons, that a date would be available soon after that determination.

10. It is also my expectation, perhaps uninformed by legal argument, which would have been inappropriate this morning, that the question of whether the Authority has the power to defer deciding applications pending even important decisions of a court, would not be very complex, or involve long argument. In any event, I am more in favour in the end in the position propounded by the defendant than the plaintiffs.

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Decision last updated: 12 September 2023