IGT (Aust) Pty Ltd v the Licensing Court of South Australia & Ors No. Scciv-03-579

IGT (AUSTRALIA) PTY LIMITED v THE LICENSING COURT OF SOUTH AUSTRALIA, HIS HONOUR JUDGE BRIAN ST LEGER KELLY AND NO POKIES CAMPAIGN INC
[2004] SASC 29
Judicial Review

MULLIGHAN J This is an application pursuant to R 98 of the Supreme Court Rules 1988 to review a decision of the first defendant, The Licensing Court of South Australia, that it has jurisdiction to hear an appeal by the third defendant, No Pokies Campaign Inc, purportedly brought under s 69(1) of the Gaming Machines Act 1992 (“the Act”). The orders sought by the plaintiff are in the nature of certiorari and prohibition and also a declaration. The second defendant is the learned Judge who comprised the Licensing Court when the decision was made. Leave was not granted to serve the initiating summons on him and he has not participated in those proceedings. The first defendant also did not participate and, presumably, these defendants will abide any orders which are made.
In December 2001, the plaintiff sought approval from the Liquor and Gaming Commission of two gaming features to be used in gaming machines supplied by the plaintiff to licensed hotels and clubs in South Australia pursuant to s 40 of the Act which provides:
“40(1) The Commissioner may, on application by a person, approve particular gaming machines, or particular games, to be of a class that is approved for the purposes of this Act.
(2) In determining an application for approval of a game, the Commissioner must have regard to any guidelines issued by the Authority to the Commissioner for the purpose of assessing whether a game is likely to lead to an exacerbation of problem gambling.
(3) If the Commissioner is of the opinion that the game the subject of the application is likely to lead to an exacerbation of problem gambling, the Commissioner must refuse the application.”
The applications were advertised by the plaintiff on 16^th February 2002 and 6^th March 2002 at the direction of the Commissioner and were set down for hearing on 8^th April 2002. The third defendant lodged an objection to the applications pursuant to s 30 of the Act on 18^th March 2002 which provides:
“30(1) Where an application has been advertised under this Part, any person may, by notice in the prescribed form lodged with the Commissioner at least seven days before the day appointed for the hearing of the application, object to the application.
(2)A copy of the notice of objection must be served by the objector on the applicant at least 7 days before the day appointed for the hearing of the application.
(3)An objection may be made on behalf of an unincorporated association under this section by an agent duly appointed for the purpose.
(4)An objection may be made on the ground that the grant of the application would be contrary to this Act, in that one or more of the matters as to which the Commissioner is required by this Act to be satisfied before granting the application would not, in the opinion of the objector, be satisfied.”
Ss 30(5) and (6) have no application for present purposes.
The ground of the objection was that “these applications are likely to lead to an exacerbation of problem gambling”.
The Commissioner considered the applications and approved them on 28^th October 2002 having decided that he was not satisfied that the gaming features were likely to lead to an exacerbation in problem gambling. He gave written reasons for his decisions.
On 27^th November 2002 the third defendant appealed to the Licensing Court against the decisions of the Commissioner pursuant to s 69(1) of the Act. S 69 provides:
“69(1) A person who is the subject of an order or decision (but not a direction) made or given by the Commissioner under this Act may appeal to the Court against that order or decision.
(2)    A person who is the subject of a direction given by the Commissioner under this Act (except when acting as an authorised officer) may appeal to the Authority against that direction.
(3)    An appeal under this section must be instituted within one month of the decision, or order or direction being made or given or such longer period as the Court or the Authority, as the case may be, may allow.
(4)    An appeal under this section is in the nature of a rehearing.
(5)    The Court or Authority may, on an appeal under this section, do such of the following as the Court or Authority thinks appropriate:
(a)affirm, vary or quash the decision, order or direction subject to the appeal;
(b)substitute, or make in addition, any decision, order or direction that the Commissioner could make;
(c)remit the matter to the Commissioner for further consideration;
(d)make any incidental or ancillary order.
(6)    For the purposes of this section, the transferor of a gaming machine licence is a party to any proceedings relating to the transfer of the licence.
(7)    No right of appeal lies against a decision or order of the Court or Authority on an appeal under this section.”
The plaintiff contended that the appeal was incompetent. The learned Judge of the Licensing Court decided that the contention of the plaintiff should be regarded as a preliminary matter and that it be heard on 17^th March 2003. On that day he decided that the third defendant had a right of appeal under s 69(1) of the Act of the decisions of the Commissioner. He gave brief reasons for his decision. He said that he had previously decided the point when reviewing a decision of the Commissioner regarding the Belair Hotel on 30^th October 1997. In his judgment in that matter, he said:
“This too is very curious and confusing wording. I am prepared to find that a proper interpretation of the words ‘subject of an order’ in the context of the Act as a whole must be taken to mean ‘affected by an order’ and that in the context of an objector and the Commissioner of Police. To interpret it otherwise makes a nonsense of the initial representation of an objector and intervention of the Commissioner of Police. They both have a right of appeal in my view.”
In his reasons for decision in the present matter, he said that he could see no reason to depart from that decision. He mentioned the predecessor to s 69(1) which gave a right of appeal to “a person dissatisfied with or aggrieved by a decision”. He concluded that the change in s 69(1) to its present wording, “a person who is the subject of an order or decision”, does not indicate a legislative intention to preclude an objector from having a right of appeal. He noted that a transferor of a licence and the Commissioner of Police had a right of appeal and said that, therefore, the same must be said of an objector. He went on to say:
“One would have thought that if Parliament had any such intent, which is a serious deprivation of rights, then it would do so in an explicit way particularly with this Court as a final decision maker. I reject the view propounded by the respondent.”
The plaintiff contends that the learned Judge was wrong in making that decision because only a person who is “the subject of an order or decision” may appeal. The third defendant, although entitled to object to the application, was not the subject of an order or decision of the Commissioner and therefore could not appeal. The plaintiff further contends that an objector does not have any rights or liabilities which may be affected by an order or decision of the Commissioner. Consequently the learned Judge acted without jurisdiction and by hearing and determining the purported appeal would also be acting without jurisdiction.
The third defendant contends that it is “the subject” of the decision of the Commission.
Before considering this issue, I mention features of the Act.
The Independent Gambling Authority (“the Authority”) is established by s 4 of the Independent Gambling Authority Act 1995. It is the Authority referred to in s 3 of that Act. I have mentioned the Commissioner who is responsible to the Authority for the constant scrutiny of the operations under licences of all classes under the Act and has wide procedural powers in order to discharge the functions. Pursuant to s 7, in proceedings under the Act, the Commissioner must act without undue formality, is not bound by the rules of evidence and may inform himself or herself on any question that arises for decision in such a manner as he or she thinks fit. The proceedings before the Commissioner are open hearings.
S 8(1) provides that a party to proceedings before the Commissioner may appear personally, by counsel, or by officer or employee of a trust or corporation with leave of the Commissioner, or by officer or employee of an association formed to promote or protect the interests of a section of the liquor or gaming industry or of employees in those industries. “Party” is not defined in the Act. S 8(2) provides that the Commissioner of Police may be represented in proceedings before the Commissioner by a member of the police force or by counsel.
S 14(1) of the Act provides for classes of licences under the Act which are referred to as: a gaming machine licence, a gaming machine dealer’s licence, a gaming machine supplier’s licence, a gaming machine monitor licence and a gaming machine service licence. It is unnecessary for present purposes to describe those licences. The plaintiff holds a gaming machine dealer’s licence and may only manufacture, sell or supply a gaming machine to the State Supply Board or to another holder of a gaming machine dealer’s licence: s 14(1)(b) and s 26 of the Act.
S 15 provides for eligibility for a gaming machine licence and, in the main, is restricted to the holder of a hotel licence or a club licence. S 18 provides the form of an application for a licence. The application must be made to the Commissioner. An applicant must be a fit and proper person to hold the licence and if the applicant is a trust or a corporate entity, each person who occupies a position of authority in such an entity must be a fit and proper person. The applicant must satisfy the Commissioner of this intention: s 19. The Commissioner has an unqualified discretion to grant or refuse an application on any ground or for any reason that the Commissioner thinks fit: s 24.
S 27(4) provides that the Commissioner may, by notice in writing addressed to the licensee, vary or revoke a condition of a licence or impose further conditions on the licence, and pursuant to s 27(5) may do so on the Commissioner’s own initiative on an application by the licensee or the Commissioner of Police.
S 29 provides that applications for the grant of a gaming machine licence, for the transfer of a gaming machine licence, the grant of a gaming machine dealer’s licence and any other class of licence, if the Commissioner so directs, must be advertised in a newspaper and the Gazette as therein provided, at least 28 days before the date fixed for the hearing of the application. As has been mentioned, it is upon such advertising that a person may object to the application: s 30(1).
S 31 provides that the Commissioner must furnish the Commissioner of Police with a copy of all applications under Part 3 of the Act, which includes applications for licences. The Commissioner of Police may intervene in any proceedings before the Commissioner on the question of whether a person is a fit and proper person or whether, if the applications were granted, public disorder or disturbance would be likely to result. S 31(2) provides that upon such intervention the Commissioner of Police is a party to the proceedings. It is to be noted, at this stage, that a true construction of the Act indicates that even the Commissioner of Police is a party to the proceedings upon intervention only because of the express provisions in s 31(2).
Pursuant to s 36, the Commissioner may take disciplinary action against licensees. The Commissioner may reprimand a licensee, exercise the power to add to, or vary, the conditions of a licence, suspend a licence for a specified period or until further order or revoke a licence in circumstances set out in the section which need not be mentioned for present purposes.
Part 4 of the Act relates to approvals which may be given by the Commissioner. They include approvals of natural persons as gaming machine managers or gaming machine employees, persons in authority in trusts or corporate entities and particular gaming machines and games. The Commissioner has an unqualified discretion to grant or refuse an application for approval on any ground, or for any reasons that the Commissioner thinks fit, except that the Commissioner cannot approve such a manager or employee or a person in a position of authority in a trust or corporate entity unless satisfied that the person is a fit and proper person to carry out prescribed duties: s 42.
S 43 provides that the Commissioner must furnish the Commissioner of Police with a copy of all applications for approval of such managers, employees and persons in authority in a trust or corporate entity and that the Commissioner of Police may intervene in proceedings before the Commissioner on such an application on the question of whether the person to whom the application relates is a fit and proper person. Upon doing so, the Commissioner of Police is a party to the proceedings: s 43(2). Section 44 provides that the Commissioner has an unqualified discretion to revoke an approval on such ground as the Commissioner thinks fit. There is no requirement that there be an existing application before him. He may take that action at his own volition.
Part 5 provides that breaches of various provisions of the Act are offences against the Act.
I have mentioned these provisions to demonstrate, in a general way, the strict con0trol of gambling machines and games, the persons who sell or operate them and the responsibility of the Commissioner under the Act which is exercised in the public interest. The facility for any person to object is also in the public interest. The Commissioner is entrusted with considerable powers to be exercised in the regulations of gambling by gaming machines. in the public interest and any person in the community is permitted to object to an application of the type mentioned in s 29. In the scheme of regulations set out in the Act, the Commissioner undertakes the relevant regulatory decisions and has an unqualified discretion in the discharge of many of his important functions. It is at the stage of consideration of applications by him that members of the public may object and make representations to him. It is only “a person who is the subject” of an order or decision made or given by him who may challenge any such order or decision or appeal.
I now turn to s 69 of the Act. The Act does not provide that an objector is a party to proceedings before the Commissioner. As has been mentioned, it provides that only upon intervention by the Commissioner of Police, he is then a party. I think there are various reasons why objectors are not to be regarded as parties. There is no restriction as to who may object. There could be many objectors with respect to an application and on many different grounds. The Commissioner is to deal with the objections without undue formality. If objectors were parties the proceeding could become protracted and cumbersome. Each objector would have to be informed of the nature and basis of other objections and natural justice would have to be afforded to them at least to the extent of being able to challenge or contradict the bases of other objections which might be adverse to the objector’s own case. A party to proceedings attracts rights and responsibilities. It is unnecessary for present purposes to attempt to define such rights and responsibilities as I think the Legislature did not intend for objectors to be parties to proceedings. The utility for the objection process would be greatly compromised if objectors had to assume all of the obligations of parties to litigation.
There is support for this interpretation in cases involving other legislation. In Boulter v The Justices of Kent & Ors [1897] AC 556, the House of Lords was concerned with the status of a person who objected to the renewal of a licence of a public house. It was held that persons objecting to the grant of a licence are not parties on the application. Lord Harold said at 569:
“The question is not one inter parties at all. The justices have an absolute discretion to determine, in the interest of the public, whether a licence ought to be granted, and every member of the public may object to the grant on public grounds, apart from any individual right or interest of his own. The applicant seeks a privilege. A member of the public who objects merely informs the mind of the Court to enable it rightly to exercise its discretion whether to grant that privilege or not. A decision that a licence should not be granted is a decision that it would not be for the public benefit to grant it. It is not a decision that the objector has a right to have it refused. It is not, properly speaking, a determination in his favour. It is, I think, a fallacy to treat the refusal as necessarily induced by a particular objector. Every member of the local community might object. Would they all then become ‘the other party’? There is, in truth, no lis, no controversy inter parties, and no decision in favour of one of them and against the other, unless, indeed, the entire public are regarded as the other party, for if a licence be refused on the ground that it was not needed to supply the legitimate wants of the neighbourhood, the decision is really in favour of the public at large.”
Those observations apply to the procedure for objections under the Act.
The Development Act 1993 also contains procedures by which persons may make representations to an appropriate authority opposing an application for approval by that authority. As in the Act, the relevant authority may inform itself as it thinks fit: s 7 of the Development Act. In Upham v Grand Hotel (SA) Pty Ltd & Anor (1999) 74 SASR 557, the Court considered the position of a representor under the procedure set down by the Development Act and Regulations. Doyle CJ and Bleby J, with whom Wicks J agreed, said at 571:
“A representor does not have to meet a case, and is not dealing with a case that is being put against him. Nor do we consider that a representor who opposes an application, and the applicant, are to be treated as if they were parties in an adversarial position. We consider that the scheme of the Act and of the Regulations makes it quite clear that the relevant authority makes its own enquiry into an application for a development consent. As we have already said, if the process is to be characterised, it is inquisitorial rather than adversarial. A person who makes a representation, and who is granted the right to be heard or is entitled to be heard, is not given by the Act or by the Regulations the status of a party to an adversarial dispute before the relevant authority. The status and role of such a person is a limited one.”
The position of an objector under the Gaming Machines Act is the same.
In view of the public interest in gambling, the clear intention is that any person in the community should be able to object without assuming the obligations of being a party to the proceedings.
Counsel were unable to point to any legislative provision in this State, interstate or in the United Kingdom in the same or similar terms to s 69(1).
The starting point in statutory interpretation is expressed by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Company Limited & Ors (1920) 28 CLR 129 per Higgins J at 161-162:
“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.”

There is nothing in the Act which indicates that other than the natural and ordinary meaning of the words in s 69(1) should be employed. In my view the ordinary meaning of the words “a person who is the subject of an order or decision” is clear.
According to The Shorter Oxford English Dictionary 3^rd ed, the ordinary English meaning of the word “subject” in the context of s 69(1) is “....... that which is or may be acted or operated upon; a person or thing towards which action or influence is directed”.
The words “a person who is subject of an order or [a] decision” refer to the person about whom the order or decision is made. In the context of the present case that “person” is the plaintiff who has brought the application which is the subject of the decision. The subject of the order or decision is the games for which the plaintiff sought approval. In the context of disciplinary proceedings, the “person” is the person who is the subject of the order or decision.
I accept the argument of Mr Whitington QC, who appeared for the plaintiff, that the decision of the Commissioner was made in relation to the rights and interests of the plaintiff. Those rights and interests are the subject matter of the decisions. The Commissioner decided the case of the plaintiff for approval of the games submitted by the plaintiff. The decision granted important private rights to the plaintiff. An objector may oppose the granting of those rights but the objector is not the subject of the rights.
It may be seen from s 30(1) that the policy of the Act is to confine the making of objections to applications which have been advertised as required by s 30(1). As has been seen, Parliament has restricted the process of objection by requiring that it must occur after the advertising and within the specified time limit. There is no provision making an objector a party to the proceedings as is the case with the Commissioner of Police. There is no provision granting a right of appeal to an unsuccessful objector.
The intention of the Act is that there must be an end to the process of objection. If the application is refused by the Commissioner, the applicant may appeal. It is not necessary to so decide for present purposes, but I expect that if the intervention by the Commissioner of Police is unsuccessful, there may be an appeal because he or she is a party to the proceedings and is therefore “a person who is the subject of an order or decision”. However, Parliament has chosen not to extend that right to an objector.
It was submitted by Mr Rochow, who appeared for the third defendant, that “a person in s 69(1) does not limit the class of appellants to an applicant”. If that was so, Parliament could have expressed that intention in the section. I accept that contention. Clearly Parliament did not intend that only applicants could be appellants. It is sufficient to refer to Division 7 of Part 3 of the Act which relates to disciplinary action against licensees. It is unnecessary to set out the powers of the Commissioner under this Division. It is sufficient to say that his powers are extensive and include the power to suspend or revoke a licence in specified circumstances: s 36. Such proceedings are instituted by the Commissioner and a licensee adversely affected by his decision would not be an applicant in proceedings but would nevertheless have a right of appeal under s 69(1) as a person who is the subject of an order or decision.
As has been seen, the learned Judge equated the position of an objector with that of the Commissioner of Police when considering the true meaning of s 69(1) based upon his interpretation of the predecessor to s 69(1). The earlier s 69(1) was as follows:
“69(1)Subject to this Act, a person who is dissatisfied with or aggrieved by a decision or order made or a direction given by the Commissioner under this Act may appeal to the Authority against that decision.”
The repeal of this section in 1995 and the introduction of the present provision is a matter of significance. As can been seen, under the earlier provision a right of appeal was given to a person who was dissatisfied with or aggrieved by the decision or order or direction of the Commissioner. Clearly, an objector could be a person who was dissatisfied by the decision, order or direction. Also, for a person to be aggrieved by a decision, order or direction, it would be necessary for that person to be affected in some way although not necessarily having a legal grievance: LA Ward Racing Syndicate v Trotting Appeal Committee (1987) 46 SASR 467; see also Koolmarta v Bjelke-Peterson & Ors (1981-1982) 163 CLR 168. The new provisions considerably narrowed the class of persons having a right of appeal to a person who is the subject of an order or decision of the Commissioner. No longer is it sufficient for a person to be dissatisfied or aggrieved. The proposed appellant has to be the subject of the order. The restricting of the class of persons with a right of appeal in the present section in this way indicates a clear legislative intention to permit only a limited class of persons to be able to appeal.
As has been seen, the learned Judge concluded that the correct interpretation of “the subject of an order” in the present s 69(1) means “affected by an order”. In doing so, it appears that the learned Judge interpreted s 69(1) as if it had the same wording as the previous section. A “person affected by” a decision would include persons who are “dissatisfied with or aggrieved by” a decision, order or direction. A person affected would also include a person who received a favourable and satisfactory result. Such a person would not appeal. Such a person would not be a person dissatisfied by or aggrieved by the result. As has been seen, a person would not be aggrieved by the decision, order or direction unless the person was affected by it in some relevant way. I accept Mr Whitington’s contention that the change in the wording of s 69(1) was to foreclose the right of appeal to a person who is merely a person affected by the order or decision of the Commissioner and to restrict an appeal to a person who is the subject of an order or decision.
It is also submitted by the plaintiff that in any event the third defendant is not a “person affected” by an order or decision of the Commissioner in the same way as a person replying to an invitation to comment on Environmental Impact Statements made pursuant to the Environmental Protection (Impact of Proposals) Act 1974 (Cth). I was referred to Australian Conservation Foundation Incorporated v The Commonwealth of Australia & Ors (1980) 146 CLR 493 where it was held that an organisation making such a response did not have standing to bring an action challenging the validity of certain decisions.
Also, the plaintiff contended that the notice of objection by the third defendant was not within the provisions of s 30(4) of the Act because the approaches were given by the Commissioner pursuant to s 40 of the Act because that section does not state any matters as to which the commissioner is required by the Act to be satisfied before granting an application. It only requires that the Commissioner must “have regard” to any guidelines issued by the Authority and that he must refuse an application if he forms a particular opinion. The contention is that there is no ground upon which the third defendant could object to the subject applications.
I have not found it necessary to consider either of these contentions as, in my view, the third defendant has no right of appeal as it is not the subject of an order or decision of the Commissioner.
The plaintiff is entitled to the relief which it seeks. I am prepared to make a declaration that the third party has no right of appeal under s 69(1) and orders quashing the decision of the Licensing Court to the contrary. I shall hear the parties to this application as to the terms of the orders which should be made.

[2004] SASC 29

30 January 2004