Lejag Pty LTd v. State of Qld

[2007] QSC 136

SUPREME COURT OF QUEENSLAND

QSC 136

CIVIL JURISDICTION

FRYBERG J

No S11015 of 2006

LEJAG PTY LTD (ACN 081 793 268)	Plaintiff
and
STATE OF QUEENSLAND	Defendant

BRISBANE

..DATE 07/06/2007

ORDER

HIS HONOUR: This is an application for summary judgment by the defendant. The plaintiff has commenced proceedings for declarations that a gaming machine license held by a company called Munford Proprietary Ltd did not lapse by reason of section 80A of the Gaming Machine Act 1991. It may be that the declaration which, in reality, is sought is one that the license is still in force, but nothing turns upon that at the present time.

Munford Queensland Proprietary Limited is the proper name of the licensee company, but nothing turns upon the misnomer in the claim.  Munford Queensland Proprietary Limited has, in fact, been deregistered, but I am assured that nothing turns upon that fact either. 

The plaintiff is the owner of the Federal Palace Hotel in Richmond.  It leased the hotel to Munford for the period July 2002 until the beginning of July 2003.  During that time, in fact in March 2003, a gaming machine license was issued to Munford and Munford also held a liquor license in respect of the premises.  When the lease ended in the middle of 2003, the plaintiff again took possession of the hotel and, I assume, obtained appropriate authorisation to carry on business running the hotel.

It did not itself apply for or obtain a gaming machine license but, in November 2003, obtained a special authorisation under section 109 of the Gaming Machine Act 1991. Pursuant to that authorisation, it conducted the gaming machines in the premises for a month. It then applied for a gaming license, which was eventually refused in September of 2005.

Section 80A of the Gaming Machine Act provides,

"If the licensee, under a gaming machine license, has not started to conduct gaming on the licensed premises by the relevant date, the gaming machine license lapses."

It is common ground between the parties that, after the termination of the lease in the middle of 2003, Munford had no further involvement with the premises, apart from its possession of the license.  It follows that, unless the plaintiff can in some way demonstrate that Munford started to conduct gaming on the premises during the period of 12 months following the issue of its gaming license in March 2003, the license lapsed in March 2004. 

In fact, Munford, at no time either during the period of its lease or subsequently, conducted any gaming on the premises.  
The plaintiff, however, submits that the requirements of section 80A are satisfied because of the fact that it conducted gaming on the premises for a month between November and December 2003, pursuant to the special authorisation issued to it. It submits that its conduct is attributable to Munford by reason of subsection (4) of section 109, which provides,

"While an authorisation under this section remains in force, the substitute licensee:
(a) Is authorised to conduct gaming on the licensed premises if the substitute licensee were the licensee under the gaming machine license, and
(b) is subject to all of the liabilities of the licensee under the gaming machine license."

The plaintiff submits that this provision has the effect that Munford must be taken to have started to conduct gaming on the premises at the relevant time.  No case was cited, perhaps not surprisingly, in relation to the section and it was put before me as a matter of impression of the meaning of the words. 

The fact is that, in that period, Munford had no involvement with the conduct of gaming itself.  It took no share of the profit or loss, it took no responsibility for compliance with the relevant laws, it was under no vicarious liability for the conduct of the premises and it was not rendered subject to the liabilities of the plaintiff in any way in respect of the gaming conducted on the premises.

The purpose of subsection (4), it seems to me, is to protect the substitute licensee.  It provides the substitute with authority to conduct gaming on the licensed premises and thereby prevents it from breaching the law.  It does not attribute to the licensee anything in respect of what is done by the substitute licensee. 

It follows then that, in my judgment, that section does not have the effect for which the plaintiff contends. That being so, it is conceded that there is no evidence which can be brought forward to satisfy the requirements of section 80A of the Gaming Machine Act. Satisfaction of that section is an essential element of the plaintiff's claim for declarations. There is, therefore, no point in allowing the action to proceed any further and, in my judgment, the matter should be disposed of summarily.

I give judgment for the defendant with costs to be assessed.

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