Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd; Independent Liquor and Gaming Authority v Area Hotel Ut Pty Ltd; Independent Liquor and Gaming Authority v The Griffith Hotel Pty Ltd

These three appeals concerned the Independent Liquor and Gaming Authority's (ILGA) refusal to grant applications made by Whitebull HTL Pty Ltd, Area Hotel Ut Pty Ltd, and The Griffith Hotel Pty Ltd. The applications sought to transfer or lease gaming machine entitlements and increase gaming machine thresholds. The primary dispute revolved around whether ILGA had acted unlawfully in imposing conditions on the hotels' liquor licences relating to harm minimisation concerns associated with gaming machines, and whether ILGA had correctly interpreted and applied provisions of the *Gaming Machines Act 2001* (NSW) and the *Liquor Act 2007* (NSW). The matter was heard by Meagher and Kirk JJA, and Griffiths AJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were: (a) the scope of ILGA's discretions under sections 19, 25, and 34 of the *Gaming Machines Act 2001* concerning applications for gaming machine entitlements and thresholds; and (b) the scope of ILGA's discretion under section 53 of the *Liquor Act 2007*, specifically whether this provision empowered ILGA to impose conditions on liquor licences that addressed harm minimisation concerns related to gaming machines. The Court also considered whether declarations as to the construction of the relevant statutes and orders requiring the grant of the applications were appropriate remedies.

The Court of Appeal found that ILGA had erred in its interpretation and application of the relevant legislative provisions. It determined that while ILGA possessed broad discretions under the *Gaming Machines Act 2001*, these discretions did not extend to imposing conditions on liquor licences that were primarily aimed at harm minimisation from gaming machines, as this power was not conferred by section 53 of the *Liquor Act 2007*. The Court reasoned that the *Liquor Act 2007* and the *Gaming Machines Act 2001* operated in distinct spheres, and ILGA could not use its powers under one Act to achieve objectives that were not contemplated or authorised by the other.

In each of the proceedings, the Court of Appeal granted leave to appeal, ordered the appellant to file a notice of appeal within seven days, and upheld the appeals with costs. The orders made by the primary judge on 5 June 2023 were set aside, and in lieu thereof, the summonses were dismissed with costs.