Jones v Liquor and Gaming NSW

[2020] NSWCATAD 271

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jones v Liquor and Gaming NSW [2020] NSWCATAD 271

Hearing dates:

On the papers

Date of orders:

4 November 2020

Decision date:

04 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The application for review is dismissed for lack of jurisdiction.

Catchwords:

JURISDICTION – no identified enabling legislation

Legislation Cited:

Administrative Decisions Review Act 1997

Betting and Racing Act 1998

Civil and Administrative Tribunal Act 2013

Cases Cited:

White v Sutherland Shire Council [2019] NSWCATAD 100

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Ashley Jones (Applicant)
Liquor & Gaming NSW (Respondent)

Representation:

Applicant: self-represented
Respondent: Department of Customer Service

File Number(s):

2020/00250723

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. The Applicant, Ashley Jones asked the Respondent, Liquor & Gaming NSW to undertake regulatory action against a betting service provider, Palmer Bookmaking Pty Limited (Palmerbet), for a breach of the Betting and Racing Act 1998 (the Betting Act). The Respondent declined to do so, and the Applicant sought review of that decision by the Tribunal.

2. The Respondent now seeks dismissal of the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act), asserting, in effect, that the proceedings are misconceived as the Tribunal lacks jurisdiction to conduct administrative review of the decision. The issue therefore is whether the Tribunal has jurisdiction to conduct the administrative review the Applicant seeks.

3. The Applicant provided extensive submissions in support of his application for review, and the Respondent also provided written submissions. With the consent of the parties, the matter was dealt with on the papers.

Legislative scheme

4. Section 28 provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by under the Act “or any other legislation." Relevantly, the Tribunal has an administrative review jurisdiction over decisions of an administrator in the circumstances provided for by the Administrative Decisions Review Act 1997 (ADR Act): s. 30(1) CAT Act. Section 9(1) of the ADR Act, in turn, provides that administrative review jurisdiction is conferred under enabling legislation and s 4(1) defines "enabling legislation" as that which provides for applications to be made to the Tribunal with respect to a specified matter or class of matters. A decision over which the Tribunal has administrative review jurisdiction is an "administratively reviewable decision": s 7(1) ADR Act and s 30(3) CAT Act. For the purposes of this matter the “enabling legislation” is the Betting Act.

Factual background

5. There was no dispute as to the facts.

6. On 11 April 2020 the Applicant opened a betting account with Palmer Bookmaking Pty Ltd (Palmerbet). After losing over $70,000, the Applicant then closed the account. He had previously held another account with Palmerbet, which he had closed in March 2014. He had also self-excluded previously (in about 2014). The Applicant sought a refund of the lost money from Palmerbet, stating that Palmerbet should not have accepted his bets, as he had a previously closed an account.

7. Palmerbet informed the Applicant by email that it could not offer a refund, and referred to its terms and conditions which included:

Where a customer has elected to exclude themselves from our services, Palmerbet makes every reasonable effort to prevent the use of existing accounts or opening a new account by that customer. If you self-exclude you must not attempt to open an account or place any bets with us. If you do so you will be fully liable for all activity and bets placed on your account. Only once Palmerbet responds to an account closure of exclusion request and a client has logged out of Palmerbet account on all devices will a closure or self-exclusion take effect.

8. On 12 April 2020, following further contact by the Applicant, Palmerbet sent an email to the Applicant, advising that the matter was closed, and that he was welcome to escalate the matter to regulatory bodies.

9. The Applicant then lodged a complaint with the Respondent. One of the Respondent’s Senior Compliance Officers informed the Applicant on 1 June 2020, that a review had been undertaken which did not establish sufficient evidence for regulatory action to be taken against Palmerbet. On the same day the Applicant responded, expressing disapproval regarding the outcome and requesting a copy of all correspondence and evidence used by the Respondent in coming to its decision, so that he could pursue the matter through civil proceedings.

10. On 5 June 2020 the Respondent told the Applicant that there is no legislative requirement for betting service providers to comply with a self-exclusion request from a customer. The Applicant was told that in coming to its view the Respondent had also taken into account the Applicant’s complaint, and Palmerbet’s compliance history.

11. When the Applicant asked about the legislation considered in coming to the determination, the matter was escalated within the Respondent and on 11 June 2020, the Respondent’s Manager, Compliance sent an email to the Applicant, stating, among other things, that the Respondent had assessed the matter in accordance with its usual complaints handling approach, and that no further action would be taken against Palmerbet. The Applicant responded, contending that, in his view, Palmerbet had breached various provisions of the Betting Act. The following day the Applicant sent two further emails, providing further arguments for his position that Palmerbet had breached (unspecified) provisions of the Betting Act.

12. The Applicant submitted that the Betting Act has a clear intent that betting service providers meet legislative and regulatory requirements. The Respondent observed that, while there are a number of provisions concerning the conduct of betting service providers, there is no offence provision covering the circumstances where a person who has previously self-excluded being prevented from signing up again with the same betting service provider.

13. The Applicant provided a detailed account of his correspondence with Palmerbet and what he perceived as Palmerbet’s inappropriate conduct. He described himself as vulnerable to addictions, impulses and poor decision-making as a result of war-caused conditions.

Consideration

14. The only issue before the Tribunal is whether it has jurisdiction to conduct the administrative review of the Respondent’s decision not to take action against Palmerbet.

15. The jurisdiction of the Tribunal is not at large and its administrative review jurisdiction is dependent on the existence of enabling legislation that provides for applications to be made to the Tribunal for administrative review of decisions.

16. Accordingly, the Tribunal would only have jurisdiction in this matter if the enabling legislation provides that the decision which the Applicant seeks to have reviewed is an administratively reviewable decision which may be determined by the Tribunal.

17. As I observed in in White v Sutherland Shire Council [2019] NSWCATAD 100 (White) at [8]:

Section 30 of the CAT Act provides that, with respect to the Tribunal's administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation.

18. The Betting Act sets out the decisions which may be administratively reviewed by the Tribunal. Section 15D(1) provides for administrative review by the Tribunal of a decision to make an exclusion order against a person; and s 33E provides for administrative review by the Tribunal of the Minister's decision on appeal under s 33D of the Betting Act which relates to a limit type of decisions. A decision whether or not to take regulatory action against a betting service provider is not a decision made under s 15D(1) or s 33E.

19. The Respondent's decision is a decision not to take action against Palmerbet. Such decisions are not subject to administrative review by the Tribunal. I have been unable to identify anything in the Betting Act which provides that the Respondent's decision is an administratively reviewable decision. Further, I could find no other legislation relevant to the Applicant’s complaints that would confer jurisdiction on the Tribunal. Accordingly, this matter does not fall within the Tribunal's jurisdiction. Accordingly, the Application for Review is dismissed.

ORDER

1. The application for review is dismissed for lack of jurisdiction.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 November 2020