Liquor Administration Board v Williams

[2001] NSWCA 143

CITATION:	Liquor Administration Board v Williams & Ors [2001] NSWCA 143
FILE NUMBER(S):	CA 40054/01
HEARING DATE(S):	10 May 2001
JUDGMENT DATE:	18 May 2001
PARTIES :	Liquor Administration Board v Andrew Denzil Williams; Licensing Court of New South Wales; Peter Scanlon; Hurstville City Council
JUDGMENT OF:	Giles JA at 1; Ipp AJA at 5; Rolfe AJA at 6

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 2951/00
LOWER COURT JUDICIAL OFFICER :	Windeyer J

COUNSEL:	Appellant - J. Basten QC / T. M. Lynch Respondent (1) - M.L.D. Einfeld QC / F.P. Donohoe Respondent (4) - P. Riggs (Solicitor)
SOLICITORS:	Appellant - I.V. Knight, State Crown Solicitor Respondent (1) - Verekers Respondent (4) - Deacons
CATCHWORDS:	Statutory construction - meaning of 'authority' for the purposes of s161A(4) of the Liquor Act - meaning of 'final determination' in that section
LEGISLATION CITED:	Liquor Act 1982 Crown Proceedings Act 1988
DECISION:	Appeal allowed; Amended Summons dismissed; see paragraph 39

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40054/01

ED 2951/00

GILES JA

IPP AJA

ROLFE AJA

Friday, 18 May 2001

LIQUOR ADMINISTRATION BOARD v WILLIAMS & ORS

JUDGMENT

1    GILES JA: I have had the benefit of reading the reasons of Rolfe AJA in draft.

2    Drawing upon those reasons -

(a) neither s 182C of the Liquor Act 1982 (“the Act”) nor condition 31 in the conditional licence granted on 20 March 2000 authorised the keeping, use or operation of poker machines in the first respondent’s tavern; they imposed limits on the number of poker machines, and authority had to be obtained elsewhere;

(b) authority could be obtained pursuant to s 161 of the Act, by application to the appellant;

(c) section 161A(4) refers to authority given as a result of an application to the appellant pursuant to s 161;

(d) there were no such application and no such authority; and

(e) the prohibition in s 161A(2) therefore applied unalleviated by s 161A(4).

3    That is sufficient for disposal of the appeal, and it is not necessary to consider the meaning of final determination.

4    I agree with the orders proposed by Rolfe AJA.

5    IPP AJA: I agree with Rolfe AJA.

ROLFE AJA

Introduction.

6    On 20 March 2000, the plaintiff/first respondent, (“the respondent”), for whom Mr M.L.D. Einfeld of Queen’s Counsel and Mr F.P. Donohoe of Counsel appeared on the appeal, made two applications to the Licensing Court of New South Wales. The first was for the removal of the Birkenhead Point Tavern licence from the Birkenhead Point Shopping Centre to 277 Forest Road, Hurstville. The Licensing Court rejected this application and it plays no further part in the proceedings.

7 The second was a conditional application for permission to develop a tavern at the Hurstville premises on the ground floor of a shopping centre located generally in the centre of the Hurstville shopping centre precinct. It was not in issue that the tavern would be in a “retail shopping centre” as defined by s 161A of the Liquor Act 1982, (“the Act”). It was proposed that the tavern should have, inter alia, a gaming room and the Licensing Court held that the respondent had satisfied it that this was appropriate. It granted the application on 20 March 2000, subject to 36 conditions, condition 31 of which stated:-

“No more than 15 poker machines and 5 approved card devices shall be installed on the premises for a period of 5 years from the date of the grant of the final order.”

8    By an Amended Summons, the respondent sought various declarations against the Licensing Court, its Principal Registrar, the Liquor Administration Board, (“the appellant”), for which Mr J. Basten of Queen’s Counsel and Mr T.M. Lynch of Counsel appeared, and Hurstville City Council, for which Mr P.R. Rigg, solicitor, appeared. He adopted the appellant’s submissions. The Licensing Court and its Principal Registrar filed submitting appearances, save as to costs.

9    The Amended Summons sought declarations that:-

(a) the decision of the Licensing Court of 20 March 2000 was the final determination of the respondent’s application within the meaning of s 161A(4) of the Act;
(b) subject to compliance with s 60(2) of the Act and to the appeal against the Licensing Court’s decision being dismissed, the Principal Registrar was bound to finally grant to the respondent the licence referred to in that Court’s judgment upon the conditions imposed;
(c) notwithstanding that the Hurstville premises are in a “retail shopping centre”, s 161A of the Act did not operate to prevent the respondent’s entitlement to have upon those premises no more than 15 poker machines and 5 approved card devices upon the conditions to which I have referred; and
(d) the property at Hurstville is not “an adjoining building” and part of a retail shopping centre within the meaning of the Retail Leases Act.
Ultimately, this last point was not pursued.

10    The Amended Summons came before Windeyer J on 21 November 2000 and, on 20 December 2000, his Honour delivered judgment in which he held that the respondent was entitled to a declaration:-

“... in general accord with the claim in par 1 of the summons that the conditional grant was a final determination within s 161A(4) of the Liquor Act.”

11    His Honour said he did not understand that there was any entitlement to a declaration as sought in par 2, and I infer from his reasons that the other relief sought was not pursued.

His Honour’s Reasons .

12 After setting forth certain of the essential facts, his Honour quoted s 161A and, in par 4, said:-

“The question for determination in this action is whether the plaintiff is entitled to the benefit of s 161A(4) and thus, upon final grant of the application conditionally granted, retains the right to have amusement devices on the premises even though they would otherwise be subject to s 161A.”

13 He turned to the parts of the Act, which he considered to be applicable, and noted that the definition of “application” in s 4 included one for a conditional grant. He referred to s 18 and the various licences, which may be granted, including “a hotelier’s licence”, which is defined in the following terms:-

“... means a licence that, subject to this Act and the conditions for the licence, authorises the licensee to sell liquor by retail on the licensed premises, whether or not for consumption on those premises, being a licence that is granted as a hotelier’s licence.”

14    “Hotelier” is defined as meaning “the holder of a hotelier’s licence”.

15    His Honour referred to ss 20 and 40 and set out s 60, which provides:-

“60. Final grant of application
(1) The registrar may, on application, make a final grant of an application conditionally granted under section 40.
(2) The registrar is not to make a final grant of an application to erect, add to, or alter, premises unless the applicant for the final grant produces evidence by which the registrar is satisfied that the work of erection, addition or alteration has been completed substantially in accordance with the approved plan on the basis of which the conditional application was granted.
(3) Section 55 applies where an application is finally granted by the registrar under subsection (1) in the same way as it applies where an application is granted by the court.
(4) An application for a final grant of a conditional application may not be made:
(a) before the expiration of the period within which an appeal against the conditional grant of the application may be lodged,
(b) where such an appeal is lodged:
(i) before the appeal is heard or determined or otherwise disposed of, or
(ii) if the appeal is upheld, or
(c) if the person making the request has any knowledge of proceedings instituted in any court as a result of which, if determined at the time of the making of the request, the registrar or the Licensing Court might be precluded from finally granting the application.”

16 His Honour referred to s 146 and s 160 and then quoted from s 161, subsections 1 to 4 of which provide:

“ 161 Authority to keep approved gaming devices
(1) On the application of a hotelier, the Board may impose a condition of the hotelier’s licence authorising the licensee to acquire and keep in the hotel, and to permit the use and operation of, not more than 30 approved gaming devices.
(2) A condition in force under this section may be varied or revoked by the Board as provided by section 20 (Conditions of licences) but such a variation may not authorise the keeping, use or operation of more than 30 approved gaming devices.
(3) In the instrument by which it imposes, varies or revokes a condition, the Board is to identify the device or devices to which the condition, variation or revocation relates.
(4) An application to the Board:
(a) for the imposition of a condition authorising the acquisition and keeping of an approved gaming device, or
(b) for a variation, or the revocation, of an existing condition authorising the keeping of an approved gaming device,
is to be in a form approved by the Board and is to be accompanied by such documents as comply with the requirements of the form.”

17    This section makes it clear that authorisation for approved gaming devices is to be obtained from the appellant Board, and not the Licensing Court, by a person who is an hotelier.

18 His Honour had already quoted s 161A, and it is useful if I set it out at this point:-

“ 161A Approved gaming devices not permitted in retail shopping centres
(1) In this section:
retail shopping centre means a retail shopping centre within the meaning of the Retail Leases Act 1994 , and includes:
(a) any adjoining building, or
(b) anything declared to be a retail shopping centre by the regulations,
but does not include anything excluded from this definition by the regulations.
(2) An approved gaming device cannot be authorised under this Act to be kept (or used and operated) in a hotel:
(a) that is part of a retail shopping centre or proposed retail shopping centre, or
(b) that was part of a retail shopping centre within the previous 12 months.
(3) If an application is granted under this Act for the removal of a hotelier’s licence to premises that are part of a retail shopping centre or proposed retail shopping centre:
(a) any entitlement under this Act to keep approved gaming devices in the hotel ceases, and
(b) the entitlement revives if:
(i) the licence is removed to premises that are not within a retail shopping centre or proposed retail shopping centre, or
(ii) the premises cease to be part of a retail shopping centre for at least 12 months.
(4) Subsection (2) does not apply to any authority given as a result of an application that was finally determined before 12 pm on 28 March 2000 (whether or not the hotel is or becomes part of a retail shopping centre).
(5) Subsection (2) does not apply to any authority that does not result in any increase in the total number of approved gaming devices authorised to be kept in the hotel.
(6) An authority given after 12 pm on 28 March 2000 (whether in respect of an application pending at or made after that time) has no effect if it contravenes this section.
(7) This section extends to a device kept in a hotel on a trial basis as provided by section 167 or by section 79A of the Registered Clubs Act 1976 (as applied by Division 2A or Part 11).
(8) Damages or compensation are not payable by or on behalf of the Crown because of:
(a) the enactment or operation of this section, or for the consequences of that enactment or operation, or
(b) a representation or conduct of any kind about any limitation on the keeping of approved gaming devices in retail shopping centres.
In this subsection, the Crown means the Crown within the meaning of the Crown Proceedings Act 1988 , and includes the Board or any officer, employee or agent of the Crown or the Board.
(9) This section has effect despite anything to the contrary in this Act.”

19 Section 182C provides:-

“ 182C Limitation on number of poker machines in hotels
(1) It is a condition of a hotelier’s licence that not more than 15 poker machines may be kept, used and operated on the premises to which a hotelier’s licence relates, unless the licensee holds a permit issued by the Minister for each poker machine in excess of that number that is kept, used and operated on those premises.
(2) A permit referred to in subsection (1);
(a) may be acquired by a licensee in accordance with arrangements approved by the Treasurer from time to time, or
(b) in the case of a permit that has been issued in accordance with arrangements referred to in paragraph (a) - may be acquired by a licensee, in accordance with arrangements approved by the Treasurer, from another licensee who is in possession of it.
(3) Arrangements referred to in subsection (2)(a) may include a provision for determining an amount that is payable by a licensee as consideration for the issue to the licensee of a permit under this section.
(4) Nothing in this section affects the overall limit, imposed by section 161, of 30 approved gaming devices per hotelier’s licence.”

20 The issues raised before his Honour concerned whether the prohibition in s 161A(2) was overcome by the provisions of s 161A(4) on the basis that the “authority” to which reference was made was the grant of the conditional application, which constituted the “application” of which there had been a final determination by the decision of the Licensing Court before the time specified. Inherent in the respondent’s position was that that application would become the subject of a final grant pursuant to s 60 upon the tavern being built in accordance with the approved plan, and that that approval would carry the authority for the gaming devices identified in condition 31.

21    His Honour was of the view that s 60 is one empowering the Registrar to make a final grant of an application conditionally granted, which is essentially correct, and that subject to satisfying the procedural requirements of s 60 “the formal grant would normally follow as a matter of course”, which is not obviously correct. He added:-

“That grant would be the grant of an hotelier’s licence carrying the rights to apply for the authority for poker machines and approved card devices.”

22    I have set out the definitions of “hotelier” and “hotelier’s licence”. Without such a licence, a person cannot sell liquor by retail from licensed premises, which are defined, relevantly for present purposes, as the premises from which one is authorised to sell liquor.

23 Windeyer J was, in my respectful opinion, correct to say that the grant of the hotelier’s licence would entitle the holder to apply for the authority to have poker machines and approved card devices. But before any such application could be made the applicant had to be a “hotelier”, and the application had to be made to the appellant pursuant to s 161.

24    However, the general approach, followed by his Honour was that notwithstanding the requirement that the hotelier should make an application to the appellant when he had become an hotelier by dint of the grant of the hotelier’s licence, which had not occurred, it was not necessary for that to be done because the “authority” was the “authority” granted by the Licensing Court by way of the conditional application, and the latter was the “application”.

The Submissions .

25 The appellant’s first submission was that his Honour had misconstrued the provisions of the Act. Section 161A(2) prohibits the authorisation under the Act of the keeping of an approved gaming device in an hotel that is part of a retail shopping centre or a proposed retail shopping centre: i.e. it prohibits the Board from granting the authorisation under the powers conferred on it by s 161.

26   

27    The only exemption from that prohibition is contained in subsection (4). It provides for “authority” given as a result of an “application”. In the context in which that appears it must, in my opinion, be referring to an “authority” given by the appellant pursuant to an application made to it by an hotelier. The Licensing Court has no power to authorise the use of approved gaming devices, although it may impose conditions that they may be used. Whether or not they are depends on the conditional application becoming final with the result that the hotelier obtains an hotelier’s licence, at which stage the hotelier can apply to the appellant for the imposition on that licence of the authorisation to acquire and keep in the hotel not more than 30 approved gaming devices.

28 In this case the respondent did not have a relevant hotelier’s licence and had made no application to the appellant for the right to use the approved gaming devices before 12 pm on 28 March 2000. Therefore, obviously enough, no such application had been considered - let alone “finally determined”. In my opinion, this precluded compliance with s 161A(4).

29 Mr Einfeld submitted that this construction of the Act was incorrect. He relied on the grant of the conditional application as the grant of an application within the meaning of s 161A(4) and, further, that that grant meant that the application, to which that subsection was pointing, had been finally determined. Even if the application to which s 161A(4) was referring was the application for a conditional licence, which, in my opinion it is not for the reasons given, it was not finally determined before the specified time and date.

30 The final determination of a conditional application, or, as s 60, which deals with it, is headed, the final grant of such an application, is made by the Registrar pursuant to that section. The Registrar has decisions to make before making the grant and, by virtue of s 17, may exercise the jurisdiction of the Licensing Court conformably with the Act and, pursuant to s 17(1), he may impose any conditions that the Licensing Court could impose “in the circumstances, except as otherwise provided by” the Act. An appeal lies from his decision: s 148.

31 Even if otherwise Mr Einfeld’s submissions were correct, s 161A(4) does not do the work he demands of it because, within the terms of his submission, the Registrar had not and could not have made a final determination before the appointed time.

32    Mr Einfeld referred to s 18. It provides for various licences the Licensing Court may grant. That section is concerned with licences to sell liquor. It says nothing about authorising approved gaming devices.

33 Nextly, he turned to s 20(2)(c1). Section 20 deals with conditions of licences and provides, as one might expect, in the subsection on which he relied, that a licence is subject to any conditions imposed in relation to an approved gaming device. Subsection (d), relevantly for present purposes, puts this into context by reference to any other conditions “the court or the Board” is authorised by the Act to impose. Consistently, in subsection (5) the Board, as well as the Licensing Court, is authorised to vary or revoke a condition it has imposed. These sections do not, in my opinion, advance Mr Einfeld’s submissions.

34 Mr Einfeld stressed what he submitted to be the significance of s 182C. That imposes a condition on an hotelier’s licence that not more than 15 poker machines may be kept, used or operated on premises to which that licence relates unless the Minister has authorised a number in excess of that, although the maximum number or “overall limit” is 30 gaming devices for each hotelier’s licence as provided by s 161.

35 The submission continued that condition 31 had provided for the number of gaming devices and, accordingly, no further consent or authorisation was required. I disagree. I do so because the section is not concerned with the obtaining of authorisation. That is dealt with in s 161.

36 Section 182B provides that a hotelier’s licence may deal with any matters relating to poker machines with which a certificate under the Registered Clubs Act 1976 may deal, so that any conditions which can be imposed under that Act can be imposed in relation to hotels. Consistently with that provision, s 182C provides for the number of poker machines in an hotel which the Licensing Court may recommend. However, the Licensing Court is not the body which may authorise the keeping etc of approved gaming devices. That responsibility has been reposed in the appellant and, in respect of the tavern here in question, the Board, in the events which have happened, cannot authorise the use of such gaming devices.

Conclusions .

37    For these reasons I consider that Windeyer J was in error in finding that there was a final determination. I am also of the opinion that the appellant was not able to authorise the respondent to have approved gaming devices in the tavern at 277 Forest Road, Hurstville.

38    As I have said Hurstville City Council adopted the appellant’s submissions. As it took no further part in the proceedings, I consider that the proper costs order, in relation to it, is that it should pay its own costs of the appeal.

39    I propose the following orders:-

(a) The appeal be allowed.
(b) The orders made by Windeyer J on 20 December 2000 be set aside.
(c) The Amended Summons be dismissed.
(d) The respondent pay the appellant’s costs.
(e) The respondent pay the appellant’s costs of the Amended Summons and of the appeal and have a certificate under the Suitor’s Fund Act if otherwise entitled.
(f) Otherwise no order as to costs.
**********