George Thomas Hotels (Campsie) Pty Limited v Independent Liquor and Gaming Authority

[2017] NSWSC 792

Supreme Court

New South Wales

Medium Neutral Citation:	George Thomas Hotels (Campsie) Pty Limited & Anor v Independent Liquor and Gaming Authority & Anor [2017] NSWSC 792
Hearing dates:	Plaintiff’s submissions, First Defendant’s submissions, and Second and Third Defendants’ submissions 2 June 2017, Hearing 6 June 2017, Plaintiff’s submissions in reply 6 June 2017.
Decision date:	19 June 2017
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See para [50]
Catchwords:	Standing under the Liquor Act 2007 (NSW) – jurisdictional error – nature of a decision – whether decision infected by jurisdictional error.
Legislation Cited:	Gaming Machines Act 2001 (NSW) Liquor Act 2007 (NSW) Liquor Act 1982 (NSW) Liquor Regulation 2008 (NSW)
Cases Cited:	Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 Buckley & Anor v Independent Liquor and Gaming Authority & Anor [2016] NSWSC 1533 Coles Myer Ltd & Anor v O'Brien & Ors (1992) 28 NSWLR 525 Hinton and Anor v Lane & Ors [2009] NSWSC 37 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Category:	Principal judgment
Parties:	George Thomas Hotels (Campsie) Pty Limited (First Plaintiff) Golden Corridor Management Pty Limited (Second Plaintiff) NSW Independent Liquor and Gaming Authority (First Defendant) Station House Campsie Pty Ltd (Second Defendant) Jarrod Peter Smith (Third Defendant)
Representation:	Counsel: B Coles SC (Plaintiffs) J Emmett, J L Edwards (First Defendant) W G Muddle SC (Second and Third Defendant)   Solicitors: Back Schwartz Vaughan (Plaintiffs) NSW Crown Solicitor’s Office (First Defendant) Hatzis Cusack (Second and Third Defendants)
File Number(s):	2017/129748
Publication restriction:	n/a

Judgment

Nature of these proceedings

1. These proceedings concern whether proceedings already determined in the Supreme Court of New South Wales include an order to quash the deemed withdrawal of an application to remove a hotel licence.

2. The licensee of the Hurlstone Park Hotel (Hurlstone Premises) (now the Third Defendant) applied to the First Defendant, the Independent Liquor and Gaming Authority (Authority), for the removal of the Hurlstone Premises licence to a premises at 203 Beamish Street, Campsie to be known as “the Station House Hotel” (Campsie Premises) owned by the Second Defendant (Removal Application). The licensee later applied for an increase in the gaming machine threshold at the Campsie Premises (GMT Application), and soon after informed the Authority it only wanted the Authority to consider the Removal Application if the GMT Application was granted.

3. The Authority refused to grant the GMT Application, and thus pursuant to the licensee’s request, the Removal Application was deemed withdrawn. However, the Supreme Court of New South Wales quashed “the decision” of the Authority on the grounds of jurisdictional error; Buckley & Anor v Independent Liquor and Gaming Authority & Anor [2016] NSWSC 1533 (Buckley).

4. The Plaintiffs, trade competitors of the Second Defendant, seek declaratory relief the Removal Application has been withdrawn pursuant to section 45(2) of the Liquor Act 2007 (NSW) (Liquor Act), and the Authority has no right, power or function to revisit, reconsider or re-enliven the Removal Application. They also seek an order the Authority be restrained from taking any steps in connection with the Removal Application.

Background facts

5. On or about 12 February 2015, the Authority received an application pursuant to section 59 of the Liquor Act from a Mr Neville John Buckley, the then licensee of the Hurlstone Premises, for the removal of the hotel licence to the Campsie Premises (Removal Application) (CB 150 – 167).

6. The Plaintiffs also own hotel premises on Beamish Street, Campsie. George Thomas Hotels is the owner and operator of the Campsie Hotel, on the corner of Hill and Beamish Street. Golden Corridor is the owner and operator of the Oasis on Beamish Hotel, on the corner of Clissold Parade and Beamish Street.

7. On 29 April 2015, the legal representatives of the Plaintiffs made a submission to the Authority in respect of the licensee’s Removal Application (CB 16 – 18).

8. On 15 September 2015, the Authority received a further application from the licensee, seeking to increase the gaming machine threshold from zero to 27 at the Campsie Premises, pursuant to section 34 of the Gaming Machines Act 2001 (NSW) (GMT Application).

9. On 7 October 2015, the licensee’s legal representatives emailed the Authority stating the licensee only sought to proceed with the Removal Application if the GMT Application was successful.

10. On 17 December 2015, the Authority refused the GMT Application and deemed the Removal Application withdrawn (Authority’s Decision).

11. On 10 March 2016, the Authority provided the Statement of Reasons for the Authority’s Decision (Statement of Reasons) (CB 19 – 76). The letter attached to the Statement of Reasons included the following:

By reason of your advice dated 7 October 2015 to the effect that your client did not wish to proceed with the Removal Application if the GMT Application was not granted, the Authority did not proceed to consider the merits of the Removal Application but deemed the Removal Application to be withdrawn pursuant to section 45(2) of the Act [Liquor Act].

(CB 77)

12. The Statement of Reasons included the following at [254]-[255]:

254. In light of the Applicant’s [the licensee’s] request to the Authority in an email from the Applicant’s solicitor dated 7 October 2015 that it does not wish to proceed with the Removal Application if the GMT Application is not granted, the Authority deemed the Removal Application to be withdrawn pursuant to section 45(2) of the Liquor Act.

255. By reason of this decision, the Authority has not proceeded to assess the overall social impact of granting the Removal Application for the purpose of section 48(5) of the Liquor Act.

13. On 6 April 2016, the licensee and the Second Defendant in these proceedings filed an Amended Summons in the Supreme Court of New South Wales challenging the Authority’s Decision, claiming jurisdictional error, or in the alternative error on the face of the record. The prayer for relief claimed:

1    A declaration that the Defendant [the Authority] erred in law in purportedly determining, on or about 17 December 2015, that the First Plaintiff’s [the licensee] application for a gaming threshold increase in respect of premises at 203 Beamish Street Campsie does not meet the requirements under clause 36(2) of the Gaming Machine Regulation 2010.

2   A declaration that the consequential purported determination by the Defendant to deem as “withdrawn” the First Defendant’s application, made to the Defendant on or about 12 February 2015, to remove Hotel Licence LIQH4001030777 to 203 Beamish Street Campsie was erroneous in law and is invalid.

3   An order in the nature of certiorari setting aside or declaring invalid the purported decisions of the Defendant, made on or about 17 December 2015 to refuse the said application by the First Plaintiff for a gaming machine threshold increase and to deem as “withdrawn” the First Plaintiff’s application for removal of Hotel Licence LIQH4001030777 to 203 Beamish Street Campsie.

4   Costs.

(CB 189 – 196)

14. On 2 November 2016, the Supreme Court in Buckley made the following orders at [130]:

(1)   Quash the decision made by the Independent Liquor and Gaming Authority on 17 December 2015.

(2)    Remit the first plaintiff’s application to the Independent Liquor and Gaming Authority to be determined according to law.

(3)   The second defendant is to pay the plaintiff’s costs.

15. No appeal was filed in Buckley.

16. On 10 November 2016, the legal representatives of the Plaintiffs sent a letter to the Authority addressing grounds for why the Removal Application remained withdrawn, and noting that a fresh removal application needed to be made (CB 78 - 80).

17. On 22 November 2016, the legal representatives of the licensee sent a letter to the Authority setting out their grounds for why the Authority should grant the GMT Application (Defendants Tender Bundle, Tab 1). In closing, the letter stated at page 5:

The Authority would, for the reasons set out in our letter dated 15 September 2015, also proceed to grant the removal application and the ancillary applications filed with it.

18. On 24 November 2016, the Authority sent an email to the licensee’s legal representatives noting that unless the Crown Solicitor advised the Authority to appeal Buckley by 30 November 2016, it would consider the GMT Application and the Removal Application afresh (CB 81). The legal representatives of the Plaintiffs were copied into the email. Relevantly, the Authority noted it considered the Removal Application to be pending since it was no longer withdrawn.

19. On 7 March 2017, the Authority indicated to the licensee’s legal representatives (copying in the Plaintiffs’ legal representatives) that following preliminary consideration of the Removal Application and GMT Application, it was minded to find against the grounds in which the GMT Application was initially refused (CB 82 – 83). The Authority then noted:

This means that the Authority will proceed to consider the merits of the Gaming Machine Threshold Increase Application, simultaneously when it considers the Licence Removal Application and associated Extended Trading Authorisation and Minors Area Authorisation (Liquor Applications).

20. On 7 April 2017, the legal representatives for the Plaintiffs made further submissions to the Authority regarding the licensee’s Removal Application, submitting the licensee would need to make a fresh application to remove the licence following the Authority’s Decision (CB 85 – 86).

21. On 10 April 2017, the legal representatives for the licensee made submissions to the Authority responding to the Plaintiffs’ submissions of 7 April 2017 (CB 87 – 89).

22. On 13 April 2017, the legal representatives for the Plaintiffs made further submissions of a similar effect (although more extensive) to those made on 7 April 2017, following correspondence with the licensee’s legal representative (CB 90 – 123).

23. Further correspondence took place on 19 April 2017, where the Authority updated the legal representatives for the licensee and the Plaintiffs that it had given consideration to the Removal Application but was yet to reach a determination (CB 130). Further, the email read:

As previously advised, the Authority proposes to treat the Removal Application dated 11 February 2015, along with the associated applications for an extended trading authorisation and minor area authorisation applications, as enlivened, subject to the applicant’s payment of any outstanding application fees.

The Authority also requires the submission of a fresh Community Impact Statement (CIS)…

24. On 1 May 2017, the Plaintiffs, by Summons, commenced the present proceedings (CB 1 – 6). An Amended Summons was filed on 12 May 2017.

The issues in the present proceedings

25. The issues in these proceedings are as follows:

1. Do the Plaintiffs have standing to seek declarations and injunctions in these proceedings?

2. Was “the decision” quashed by Buckley a single decision (concerning only the GMT Application), or a composite decision or two separate decisions (concerning both the GMT Application and the Removal Application)?

3. If “the decision” quashed by Buckley was a single decision concerning only the GMT Application, was the deemed withdrawal of the Removal Application nonetheless infected by jurisdictional error?

Considerations

Do the Plaintiffs lack standing?

26. The Second and Third Defendants submit the Plaintiffs lack standing in these proceedings, as they do not seek to enforce a private right, but rather seek to enforce a public duty or restrain a public wrong in relation to which they have no sufficient interest (Outline of Submissions for Second and Third Defendants dated 2 June 2017 (Second and Third Defendant’s submissions) [1]).

27. The Second and Third Defendants rely on the statement of principle by Gibbs J in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 526 – 527 (ACF):

For the reasons I have given, the action was not brought by the Foundation to assert a private right. It is brought to prevent what is alleged to be a public wrong. The wrong is not one that causes, or threatens to cause, damage to the Foundation, or that effects, or threatens to affect, the interests of the Foundation in any material way. The Foundation seeks to enforce the public law as a matter of principle, as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote. The question is whether, in these circumstances, it has standing to sue.

It is quite clear an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.

The rules as to standing are the same whether the plaintiff seeks a declaration or an injunction. In Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114 , Buckley J stated the effect of the earlier authorities as follows:

“A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with …; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

28. In response, the Plaintiffs rely primarily on Hinton and Anor v Lane & Ors [2009] NSWSC 37 (Hinton) and sections 44 and 48 of the Liquor Act to submit they fall within the exceptions in ACF and thus have standing to seek declarations and injunctions in these proceedings (Plaintiff’s Notes in Response to Defendant’s Submissions dated 6 June 2017 (Plaintiffs’ submissions in reply) [1]-[3]).

29. In Hinton, a case also involving the standing of trade competitors seeking judicial review of certain liquor and gaming licence applications, Hoeben J, as his Honour then was, at [22] applied the decision of Coles Myer Ltd & Anor v O'Brien & Ors (1992) 28 NSWLR 525 in finding, albeit “not without some reservation,” the Plaintiffs did have standing:

[22] The decision which I have found to be of most assistance is Coles Myer Ltd & Anor v O’Brien & Ors (1992) 28 NSWLR 525. I accept that the case was concerned with the words “persons aggrieved by an adjudication” as used in a particular statute. In the course of reaching their conclusion, however, the Court of Appeal examined what it described as the “widening law of standing”. In construing those words Kirby P said:

It is therefore impossible to approach the problem tendered to the Court in the instant case divorced from this important and in my view beneficial, development in the approach of the common law courts throughout the world to the general question of standing and to the particular meaning of the phrase “person aggrieved”. (530.C)

Applying that approach to s 62E of the Liquor Act 1982 it is clear that the legislature had in mind bringing to the attention of as wide a group as possible that a SIA had been submitted for approval so as to enable persons who had an interest to make a submission. That provision has the effect of granting to a person who has made such a submission a right to challenge the outcome if the submission is based on a real interest which the person has in the outcome. In that sense the plaintiffs have a real interest in challenging the approval of the SIA in the sense that they would be appreciably disadvantaged in a practical if not a legal sense if the approval stands. (Sheller JA 533.C)

30. The Liquor Act 1982 (NSW) was repealed on 1 July 2008 by section 161 of the Liquor Act. Nonetheless, the Plaintiffs submit, correctly in my view, the Liquor Act also accepts other persons may have a real interest in the approval of certain licences.

31. Section 44 of the Liquor Act and reg 12 of the Liquor Regulation 2008 (NSW) (Liquor Regulation) invite any person to make submissions to the Authority in relation to the application for a licence. It was accepted the Plaintiffs made submissions on multiple occasions to voice their opposition, and indeed continue to do so (T19/35-50; see also [7], [16], [20], and [22] above).

32. Further, sections 48(2)(b) and (3) require a licence application to be accompanied by a community impact statement which the Authority must consider (section 48(5)), consistent with the object of the section in helping the Authority take into account the impact licences may have on the local community (section 48(1)).

33. The Plaintiffs do not fall within the category of persons the Authority must notify when receiving an application (regs 7 and 8 of the Liquor Regulation), however in my view the aforementioned provisions of the Liquor Act, similar to section 62E of the Liquor Act 1982, make clear the legislature intended to enable as wider a group as possible who have an interest in a licence application to participate in the decision-making or determination process, as the Plaintiffs have so far been able to do in their multiple submissions to the Authority. I am therefore satisfied on the basis of the bespoke statutory regime governing the Removal Application and consistent with Hinton, the Plaintiffs do have a special interest sufficient to seek declaratory and injunctive relief in these proceedings.

Was the deemed withdrawal of the Removal Application quashed in Buckley?

34. The Plaintiffs submit Adams J, in ordering “the decision made by the Independent Liquor and Gaming Authority on 17 December 2015” be quashed (Buckley at [130]), only set aside the decision of the Authority to refuse granting the GMT Application, meaning the Removal Application remains deemed withdrawn.

35. The Plaintiffs claimed the orders her Honour made are to be understood by reference to the actual reasoning and conclusions she reached. Her Honour’s reasons indicate she was dealing with the GMT Application, with no arguments raised by the parties, nor legally reviewable error identified by her Honour, in relation to the Authority’s disposition of the Removal Application (Plaintiffs’ submissions in reply [8]; T14/40-45). As the Removal Application was contingent upon the success of the GMT Application, her Honour did not need to, and indeed did not, consider the merits of the Removal Application (Plaintiffs’ submissions in reply [10]-[11]).

36. The Defendants, on the other hand, submit “the decision” quashed by her Honour is either a composite decision concerning both the GMT and Removal Applications, or two separate decisions concerning each application. I am satisfied this is the better view.

37. I accept the predominant focus of the analysis in Buckley was whether the GMT Application was the subject of error. However, the reason for this was because the Authority decided that rather than determine the merits of the Removal Application as it was entitled to do under section 45(1) of the Liquor Act, it would accede to the licensee’s request of 7 October 2015 in deeming the Removal Application withdrawn following its refusal of the GMT Application, as it was also entitled to under section 45(2) of the Liquor Act (Statement of Reasons [254], CB 75). The Authority still extensively set out the arguments made in respect of the Removal Application at [102]-[219], and recognised the context of the Removal Application against the possible granting of gaming facilities at [129], but nonetheless decided to refrain from proceeding with an assessment of the Removal Application and instead, as the licensee wished, deem it withdrawn at [254]-[255].

34. Accordingly, in seeking review of the Authority’s decision, the Plaintiffs sought an order that both the refusal of the GMT Application and the deemed withdrawal of the Removal Application be declared void (Amended Summons, Prayers for Relief [1]-[2]). The Plaintiffs also sought an order in the nature of certiorari in relation to the Authority’s “purported decisions” (my emphasis), expressly setting out these decisions as the refusal of the GMT Application and the deemed withdrawal of the Removal Application (Amended Summons, Prayers for Relief [3]; see also [13] above).

35. In finding jurisdictional error in respect of the GMT Application, her Honour proposed “to grant the relief sought” (at [124]) and thus quashed “the decision” of the Authority on 17 December 2015 (at [130], order 1). Further, her Honour noted “given that I propose to quash the decision of the Authority it is not necessary to also grant that declaratory relief” (at [129]).

36. Properly read in this context, I am satisfied “the decision” quashed in order 1 encapsulates the Authority’s decision to deem the Removal Application withdrawn, whether this forms part of a composite decision concerning both the GMT and Removal Application, or two separate decisions concerning each application.

37. Furthermore, as submitted by the Authority, correctly in my view, her Honour’s reasoning shows a clear awareness of the context in which the decision to deem withdrawn the Removal Application was made (First defendant’s outline of submissions dated 2 June 2017 (First Defendant’s submission) [20]-[21]). In Buckley, the GMT Application is referred to “part of a primary application to remove a hotel licence from one venue to another” (at [1]) and references to the “applications” before the Authority are frequent (eg [10], [12], [15], [34], [37] and [76]). Her Honour also records that in the circumstances of refusing the GMT Application, the Authority deemed the Removal Application withdrawn (at [44]) and for that reason there was no consideration of the merits of the Removal Application (at [76]).

38. In my view, having regard to the pleadings, the Statement of Reasons under review in Buckley, and the reasoning in Buckley, “the decision” which is quashed, should, and can only sensibly be read to include the decision to deem the Removal Application withdrawn, whether this forms part of a composite decision concerning both the GMT and Removal Applications, or two separate decisions concerning each application.

39. If “the decision” quashed in Buckley encapsulates the deemed withdrawal of the Removal Application, then, as conceded by the Plaintiffs (T14/1-12), the Authority is bound to reconsider the Removal Application in accordance with order 2 of Buckley (at [130]).

Is the Removal Application nonetheless infected by jurisdictional error?

44. Even if I am wrong in construing the quashed “decision” in Buckley to include the Authority’s decision to deem the Removal Application withdrawn, I am satisfied the two decisions are so inextricably linked that, as submitted by the Defendants, the deemed withdrawal of the Removal Application is infected or tainted by jurisdictional error by reason of the jurisdictional error infecting the refusal of the GMT Application (First Defendant’s Submissions [25]-[33]; Second and Third Defendant’s Submissions [5]-[6]).

45. The decision concerning the Removal Application was necessarily consequential upon the success of the GMT Application. The Plaintiffs recognise this, submitting:

Because of Mr Buckley’s request (and for no other reason) there was no requirement to consider the merits of the Removal Application if the threshold increase application was not granted, as Her Honour recorded (see Buckley at [76])

(Plaintiffs’ submissions in reply [11])

46. The fact the GMT Application and Removal Application were legally distinct applications, regulated under separate acts, does not, contrary to the Plaintiffs’ submissions (Plaintiffs’ submissions in reply [15]-[26]), alter the way the applications were dealt with. As evident from the Authority’s Statement of Reasons (see [37] above) and the attaching letter, as well as Buckley (see [39]-[41] above), the Authority made clear it would not consider the merits of the Removal Application and instead deem it withdrawn if the GMT Application was not granted. As the Authority’s decision to refuse granting the GMT Applicant was infected by jurisdictional error and thus, in law, no decision at all, it follows that the deemed withdrawal of the Removal Application was blighted by that error and similarly lacked any legal foundation.

47. On these grounds, I am satisfied that even if the Removal Application was not quashed by order 1 of Buckley, it is so closely linked to the infected decision to refuse granting the GMT Application that the Removal Application cannot be severed from it and is thus, too, in law, no decision at all.

48. If the Removal Application was to be set aside on these grounds, there would be no need for the Defendants to seek declaratory relief to have the Removal Application revisited, reconsidered and ultimately remade. Rather, in accordance with Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [53], the Authority is bound to perform its duty in determining the Removal Application in accordance with the law:

a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.

Conclusion on findings

49. In summary, while the Plaintiffs have standing to seek declaratory and injunctive relief, their claim for such relief should fail. In my view, the Authority’s “decision” quashed by the Supreme Court in Buckley did include the Authority’s decision to deem withdrawn the Removal Application. Even if the deemed withdrawal of the Removal Application was not quashed by order 1 of Buckley, I am satisfied it was infected by jurisdictional error so as to also render it, in law, no decision at all. On either of these grounds, the Authority is therefore required to revisit, reconsider and ultimately remake its decision in relation to the Removal Application.

50. For these reasons, I dismiss the Amended Summons. If the question of costs cannot be agreed, the parties should approach my Associate to have the matter relisted so that question can be determined.

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Decision last updated: 19 June 2017