Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd

The Independent Liquor & Gaming Authority (the Authority) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the Authority's power to revoke approvals relating to gaming machine entitlements (GMEs) and gaming machine thresholds. The dispute arose from the Authority's initial approval of an increase in 4 Boys (NSW) Pty Ltd's gaming machine threshold from 20 to 24, followed by subsequent approvals to transfer seven GMEs, which further increased the threshold to 27. 4 Boys later sought to revoke these earlier approvals.

The central legal issues before the Court of Appeal were whether the Authority possessed the power to revoke its earlier approval of a Local Impact Assessment (LIA) and the consequent increase in the gaming machine threshold, and whether it had the power to revoke its earlier approvals for the transfer of GMEs. The Court also considered whether the power to "set" the threshold under s 32(1) of the *Gaming Machines Act 2001* (NSW) could be re-exercised from time to time to permit increases or decreases, and the implications of s 48(1) of the *Interpretation Act 1987* (NSW) on the exercise of statutory functions.

The Court of Appeal determined that the *Gaming Machines Act 2001* did not confer express power on the Authority to revoke its earlier approvals of an LIA, an increase in the gaming machine threshold, or the transfer of GMEs. The Court reasoned that while s 48(1) of the *Interpretation Act 1987* permits the re-exercise of a function, this does not inherently include the power to revoke a prior exercise of that function. The Court found that the effect of re-exercising a power might reverse or revoke an earlier exercise, but the specific powers under s 19(2)(a) (approval of GME transfers) and s 34(4) (approval of threshold increases) of the *Gaming Machines Act 2001* did not include a power of revocation. Furthermore, the Court concluded that the Act manifested a contrary intention to the implication of such revocation powers.

Consequently, the Court of Appeal allowed the appeal, set aside the primary judge's declaration and orders, and ordered that the proceedings be dismissed. The cross-appeal was dismissed, and the respondent was ordered to pay the applicant's costs.