Martin v Kelly

The case of *Martin v Kelly* concerned an appeal from a decision of Johnson J regarding the approval of a transfer of poker machine entitlements by the Liquor Administration Board (now the Casino, Liquor and Gaming Control Authority). The appellants sought judicial review of the Board's decision to approve the transfer, arguing that the Board had failed to properly consider the financial interests of all relevant parties, specifically the lessors of the hotel from which the entitlements were being transferred.

The central legal issues before the court were whether the Liquor Administration Board had erred in law by failing to consider irrelevant considerations and by failing to be satisfied that the transfer was supported by each person who, in its opinion, had a financial interest in the hotelier's licence. This involved determining whether the lessors of the hotel had a financial interest in the hotelier's licence, particularly in light of a lease agreement that included an option to renew with rent based on poker machine turnover, and whether that option had been exercised or if the parties were otherwise bound by its terms.

The Court of Appeal found that the Board had indeed erred in law. It reasoned that the lessors, by virtue of the lease agreement and the option to renew which tied rent to poker machine turnover, possessed a financial interest in the hotelier's licence that the Board was obliged to consider. The court determined that the lessors' conduct, in relation to the option to renew, did not preclude them from having such an interest. Consequently, the Board's failure to adequately consider this interest constituted an error of law.

The appeal was allowed, the orders of Johnson J and the approval of the Liquor Administration Board were set aside, and the matter was remitted to the Casino, Liquor and Gaming Control Authority for reconsideration. The respondents were ordered to pay the appellants' costs.