Mellor v Liquor Administration Board - [2003] NSWSC 38

CITATION: Mellor v Liquor Administration Board [2003] NSWSC 38

HEARING DATE(S): 04/11/02; 21/11/02

JUDGMENT DATE:
14 February 2003

JUDGMENT OF: Whealy J at 1

DECISION: I make orders as follows: ; 1. Summons dismissed; 2. Plaintiff to pay defendant's costs; 3. Exhibits may be returned.

CATCHWORDS: Gaming Machines Act 2001 - Liquor Act 1982. Gaming Legislation freeze on poker machines in hotels and clubs. Power to impose conditions on dormant licences. Legislative intention of freeze regulation - prohibition on stockpiling gaming machines

LEGISLATION CITED: Liquor Act 1982
Liquor Amendment (Approved Gaming Devices) Regulation 2001
Liquor Regulation 1996
Liquor Further Amendment (Approved Gaming Devices) Regulation 2001
Gaming Machines Act 2001

CASES CITED: Ex parte Mullen re Hood (1935) 35 SR 289 at 302; 525 (High Court)
Washington Soul Pattinson v Ogilvy (1954) 55 SR 143 at 148
Ex Parte Walsh re Latham (1949) 66 NSW WN 145 at 147

PARTIES :
David Mellor v Liquor Administration Board

FILE NUMBER(S): SC 12429/02

COUNSEL: Mr S. Austin QC; Mr I Lawry - Plaintiff
Mr M. Leeming - Defendant

SOLICITORS: Slater & Elias - Plaintiff
I. V. Knight (Crown Solicitor) - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

FRIDAY 14 February 2003

12429/02 - David MELLOR v LIQUOR ADMINISTRATION BOARD

JUDGMENT

1 HIS HONOUR: The plaintiff is the licensee of a newly opened hotel in the heart of the central business district of Sydney. It is located at 60 Castlereagh Street just off Martin Place. By all accounts the hotel is an attractive establishment offering many facilities to the public. But it does not have any functioning gaming room and at the present time there are no poker machines or gambling devices operating at the establishment.

2 This state of affairs might be regarded by some patrons as something of a benefit rather than a disadvantage. That, however, is not the attitude of the owners and operators of the hotel. They wish to operate poker machines in the hotel. It is common ground in this litigation that the ability to operate 20 gaming machines in a hotel in the heart of Sydney is an extremely valuable financial commodity.

3 The hotel commenced trading at Castlereagh Street on the 21st September 2001. The hotel licence had originally attached to a site at 252 Sussex Street, Sydney. This parcel of land had an interesting history. The site at 252 Sussex Street was originally granted to the Wentworth family estate in the early 1800s. There were dwellings and small shops on the site until about 1882. A hotel known as the United States Hotel was constructed in 1882 on the southern portion of the land. In 1914 the northern portion of the site was used as a weighbridge. In 1922 the buildings were all demolished and a new hotel was established on the site opening in 1924. It was also called the United States Hotel. In 1987 the premises were renamed St Elmo’s Tavern but this building was demolished in…

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.

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Details

Case: [2003] NSWSC 38
Decision Date: 14 February 2003

CaseChat Overview and Summary

In the case of Mellor v Liquor Administration Board, the plaintiff sought to challenge the Liquor Administration Board's decision to freeze poker machines in hotels and clubs in accordance with the Gaming Machines Act 2001. The dispute centred on the interpretation and application of the freeze regulation, which was intended to prohibit the stockpiling of gaming machines. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the freeze regulation effectively prohibited the stockpiling of poker machines and, if so, whether the Board had the authority to impose conditions on dormant licences. The court needed to determine whether the legislative intention was to prevent the accumulation of poker machines during the freeze period and whether the Board's decision to impose conditions on dormant licences was in line with the statutory framework.

The court held that the freeze regulation did indeed prohibit the stockpiling of gaming machines, aligning with the legislative intention to prevent the accumulation of poker machines during the freeze period. The court found that the Board had the authority to impose conditions on dormant licences to ensure compliance with the freeze regulation. The court emphasised that the legislative framework allowed the Board to impose such conditions to maintain the integrity of the freeze and to prevent circumvention of the prohibition on stockpiling. The plaintiff's challenge to the Board's decision was dismissed.

As a result of the court's decision, the Board's decision to freeze poker machines and impose conditions on dormant licences was upheld. The plaintiff was not successful in his challenge, and the freeze regulation remained in effect. The court's ruling reinforced the authority of the Board to manage and enforce the freeze regulation in accordance with the legislative intent.

Orders