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Martin v Kelly

Martin v Kelly

Case [2008] NSWSC 577 12 June 2008

Judicial Review

Error of Law

Jurisdictional Error

Manifestly Unreasonable

Prerogative Relief

Administrative Law

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CITATION: Martin and Anor v Kelly and Ors [2008] NSWSC 577

HEARING DATE(S): 29 February 2008

JUDGMENT DATE :
12 June 2008

JUDGMENT OF: Johnson J at 1

DECISION: 1. Summons dismissed.
2. Plaintiffs to pay the costs of the First, Second, Fourth and Fifth Defendants.
3. No order as to costs of the Third Defendant.

CATCHWORDS: GAMING - claim for prerogative relief - decision of Liquor Administration Board approving transfer of poker machine entitlements - decision that Plaintiffs had not demonstrated "financial interest in the hotelier's licence" for purpose of s.19 Gaming Machines Act 2001 - claim that decision affected by error of law, jurisdictional error or manifestly unreasonable - no error demonstrated - relief refused

LEGISLATION CITED: Gaming Machines Act 2001
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Jabetin Pty Limited v Liquor Administration Board (2005) 63 NSWLR 602
Masters v Garcia (2005) 65 NSWLR 92
Boreland v Docker [2007] NSWCA 94
Roos v Director of Public Prosecutions (1994) 34 NSWLR 254
Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Cross v McHugh [1974] 1 NSWLR 500
Craig v South Australia (1994-1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296; [2005] NSWCA 86
Buck v Bavone (1976) 135 CLR 110
Bruce v Cole (1998) 45 NSWLR 163
Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1959) 59 SR(NSW) 122
Hope v Bathurst City Council (1980) 144 CLR 1
Chan v Cresdon Pty Limited (1989) 168 CLR 242
Penrith White Water Stadium Limited v Lesvos Pty Limited [2007] NSWCA 176
Wonnall Pty Limited v Clarence Property Corporation Limited (2003) 58 NSWLR 23

TEXTS CITED: Bradbrook and Croft, “Commercial Tenancy Law in Australia”, Butterworths, 2nd edn, 1997

PARTIES: George Owen Martin and Alison Martin (Plaintiffs)
Robert James Kelly (First Defendant)
Kenneth John Kelly (Second Defendant)
Liquor Administration Board (Third Defendant)
Reserve Hotels Pty Limited (Fourth Defendant)
Scott Patrick Lane (Fifth Defendant)

FILE NUMBER(S): SC 30070/2007

COUNSEL: Mr PT Russell (Plaintiffs)
Mr MJ Leeming SC; Ms JK Taylor (First and Second Defendants)
Mr WG Muddle SC (Fourth and Fifth Defendants)

SOLICITORS: Alister Somerville (Plaintiff)
Maxwell & Co (First and Second Defendants)
IV Knight, Crown Solicitor (Third Defendant)
Bruce Stewart Dimarco (Fourth and Fifth Defendant)

LOWER COURT DATE OF DECISION: ---

LOWER COURT MEDIUM NEUTRAL CITATION: ---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Johnson J

12 June 2008

30070/07 George Owen Martin and Anor v Robert…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Martin v Kelly

Details

AGLC: Martin v Kelly [2008] NSWSC 577
Case: [2008] NSWSC 577
Decision Date: 12 June 2008

CaseChat Overview and Summary

In the matter of Martin v Kelly, the case involved a dispute over a decision made by the Liquor Administration Board that approved the transfer of poker machine entitlements. The plaintiffs sought prerogative relief, arguing that the decision was flawed and should be overturned. The primary contention was that the Board had erred in its interpretation of the Gaming Machines Act 2001, specifically in its assessment that the plaintiffs did not possess a "financial interest in the hotelier's licence." The plaintiffs alleged that this interpretation led to an unjust outcome and sought judicial review on the grounds that the decision was affected by an error of law, a jurisdictional error, or was manifestly unreasonable.

The court considered whether the Liquor Administration Board's decision contained any legal errors, jurisdictional missteps, or was otherwise unreasonable. It examined the evidence presented by the plaintiffs and the Board's interpretation of the relevant sections of the Gaming Machines Act 2001. The court found that the Board's reasoning was sound, and there was no basis to conclude that the decision was tainted by the alleged errors. The plaintiffs had not demonstrated that the Board's conclusion that they lacked a financial interest in the hotelier's licence was incorrect or that the decision was otherwise unlawful.

Based on its findings, the court dismissed the plaintiffs' application for prerogative relief. It held that the Liquor Administration Board's decision was not affected by any legal errors or jurisdictional missteps, and it was not manifestly unreasonable. Consequently, the plaintiffs' claim for relief was denied, and the decision approving the transfer of poker machine entitlements remained in place. The court's judgment affirmed the Board's authority to interpret and apply the Gaming Machines Act 2001 in the manner it did, absent any demonstrated errors.

Orders