No Pokies Campaign Inc v Commissioner Pryor & Ors No. Scgrg-98-1052 Judgment No. S6949

[1998] SASC 6949

NO POKIES CAMPAIGN INC & ANOR V COMMISSIONER PRYOR & ORS

Civil

LANDER J This is an application for judicial review by two objectors, No Pokies Campaign Inc and Ronald Elleway, to an application by the third defendant, Scott Cove Pty Ltd, for a gaming machine licence.
The second defendant is the Licensing Court which is constituted under Division 2 of Part 2 of the Liquor Licensing Act (1997) (the Licensing Act).
The first defendant is the Liquor and Gaming Commissioner whose office is created under the Licensing Act and who also acts as Commissioner under the Gaming Machines Act 1992 (the Gaming Act). The Commissioner’s responsibility under the Licensing Act is to determine all non contested matters except those that the Act requires to be determined by the Court, and all contested applications for a limited license. The Commissioner has other duties in relation to contested matters which are not important for a determination of this matter.
Proceedings before the Commissioner under the Licensing Act proceed without undue formality. The Commissioner has certain powers under the Act with respect to witnesses and evidence which are not important.
The Commissioner also has the responsibility under the Gaming Act for the constant scrutiny of the operations under all licences (of all classes under that Act). An application for a licence pursuant to s14 of the Gaming Act is heard by the Commissioner who has the responsibility of granting or refusing that application.
It is the Commissioner therefore who would ordinarily determine the transfer of a Hotel License from a vendor to a purchaser and at the same time, if there was an application by the proposed purchaser for a Gaming Machine License, the Commissioner would also hear that application.
When an application is made for a Gaming Machine Licence, which is a licence which authorises the licensee to possess approved gaming machines designated in the licence and to conduct gaming on those machines, any person may object within the time prescribed under s30 of the Act to the application and the granting of that licence.
The grounds of objection are set out in s30(4) which reads:
“(4).. An objection may be made on the ground that the grant of the application would be contrary to this Act, in that any one or more of the matters as to which the Commissioner is required by this Act to be satisfied before granting the application would not, in the opinion of the objector, be satisfied.”
Section 15(1) provides for the only persons who are eligible to hold a Gaming Machine Licence. Section 15 provides:
“15.(1)... The following persons only are eligible to hold a gaming machine licence:
(a)the holder of a hotel licence (whether temporary or otherwise);
(b)the holder of a club licence, or two or more holders of separate club licences, jointly;
(c)the holder of a special circumstances licence (whether temporary or otherwise) if -
(i)-
·....... the special circumstances licence was granted on the surrender of a hotel licence or a club licence; and
·the nature of the undertaking carried out under the licence is substantially similar to that of a licensed hotel or club; or
(ii)... the premises to which the special circumstances licence relates constitute -
·....... a major sporting venue; or
·the headquarters in this State for any particular sporting code,
and the nature of the undertaking carried out under the licence is substantially similar to that of a licensed club;
(d)a person entitled to carry on business under such a licence pursuant to section 73 or 74 of the Liquor Licensing Act 1997.”

The only persons eligible to hold a Gaming Machine Licence are persons who hold a Hotel Licence or a Club Licence or a Special Circumstances Licence, in the particular circumstances mentioned in s15(1)(c)(i) or s15(1)(c) (ii) under the Licensing Act, or persons entitled to carry on business under s73 or s74 of the Licensing Act.
There is therefore a close relationship between the Gaming Act and Licensing Act inasmuch as a person is not entitled to hold a Gaming Machine Licence unless that person also holds a licence of the kind mentioned in s15 issued under the Licensing Act.
An application for a Gaming Licence must be made in the prescribed manner and form accompanied by the prescribed fee. It may be made by a person who does not at the time of the application hold the requisite liquor licence but who is an applicant for such a licence (s18(1)(c)).
Section 18(1)(c) provides:
“18.   (1)    An application for a licence -
(a)     ...
(b)     ...
(c).... may, in the case of an application for a gaming machine licence, be made by a person who does not yet hold the requisite liquor licence but is an applicant for such a licence.”
Therefore, whilst the only persons eligible to hold a Gaming Licence are those who actually hold the particular form of licence mentioned in s15, nevertheless a person may apply for a Gaming Machine Licence even though that person does not hold the requisite Liquor Licence, but only if that person is an applicant for the requisite Liquor Licence being one of the licences mentioned in s15(1) of the Gaming Act.
The Commissioner is not entitled to grant an application for a licence unless the applicant for the licence satisfies the Commissioner of the matters referred to in s15(4) of the Act which reads:
“(4).. A gaming machine licence will not be granted unless the applicant for the licence satisfies the Commissioner, by such evidence as the Commissioner may require -
(a)that the proposed gaming area, or gaming areas, within the premises in respect of which the licence is sought is or are suitable for the purpose; and
(b).... that the proposed layout of gaming machines in a gaming area is suitable for the proper conduct of gaming operations within the area; and
(c)that the arrangements proposed for the security of the premises, each gaming area and the gaming machines, and of the gaming operations generally, are adequate; and
(d).... that the conduct of the proposed gaming operations on the premises would be unlikely to result in undue offence, annoyance, disturbance or inconvenience to those who reside, work or worship in the vicinity of the premises; and
(e)that the size of the proposed gaming operations on the premises would not be such that they would predominate over the undertaking ordinarily carried out on the premises; and
(f).... that the conduct of the proposed gaming operations on the premises would not detract unduly from the character of the premises, the nature of the undertaking carried out on the premises or the enjoyment of persons ordinarily using the premises (apart for the purpose of gaming); and
(g)that no proposed gaming area is so designed or situated that it would be likely to be a special attraction to minors.”
The third defendant made an application for a Gaming Machine Licence on 5 February 1998. When the application was made the applicant was not the holder of any of the kinds of licences mentioned in s15(1) of the Gaming Act. It did, however, on the same day as it applied for a Gaming Machine Licence, apply to the Licensing Authority for a transfer of the Hotel Licence at Days Road, Regency Park for the premises known as Regency Tavern to itself. They were the same premises which were the subject of the application for the Gaming Licence. The application for the Liquor Licence under the Licensing Act, as I understand it has not yet been determined.
Two objections were lodged by the first and second plaintiff in these proceedings to the application by the third defendant for the Gaming Machine Licence.
The grounds of objection were identical and they were “that the application fails to satisfy the criteria set out in s15(4)(a)(2g) inclusive of the Gaming Machines Act”. The plaintiffs did not object to the grant of a Gaming Machine Licence to the third defendant on the ground that the third defendant did not hold the requisite licences.
The application and the objections were heard by the Commissioner. He gave two decisions, the first on 14 April 1998 and the second on 19 May 1998. He refused the application by the third defendant for the Gaming Machine Licence.
The third defendant appealed to the Licensing Court against the refusal of the Commissioner to grant the application for a Gaming Machine Licence. It cited the plaintiffs as respondents. The Court to which an appeal lies under s69 of the Gaming Act is the Licensing Court of South Australia which was constituted by Judge Kelly.
Section 69 of the Gaming Act provides:
“69.(1)... A person who is the subject of an order or decision (but not a direction) made or given by the Commissioner under this Act may appeal to the Court against that order or decision.
(2)A person who is the subject of a direction given by the Commissioner under this Act (except when acting as an authorised officer) may appeal to the Authority against that direction.
(3)An appeal under this section must be instituted within one month of the decision, order or direction being made or given or such longer period as the Court or the Authority, as the case may be, may allow.
(4)An appeal under this section is in the nature of a rehearing.
(5)The Court or Authority may, on an appeal under this section, do such of the following as the Court or Authority thinks appropriate:
(a)affirm, vary or quash the decision, order or direction subject to the appeal;
(b)substitute, or make in addition, any decision, order or direction that the Commissioner could make;
(c)remit the matter to the Commissioner for further consideration;
(d)make any incidental or ancillary order.
(6)For the purposes of this section, the transferor or a gaming machine licence is a party to any proceedings relating to the transfer of the licence.
(7)No right of appeal lies against a decision or order of the Court or Authority on an appeal under this section.”
The notice of appeal set out the following grounds of appeal and sought the following orders:
“1..... That the Commissioner erred in finding that the true basis of the objection was a concern about the impairment of the parkland views but rather the expressed underlying basis of the complaint by witnesses was an objection to poker machines on morality and/or social evil founded grounds.
2.That the Commissioner erred in finding that the proposed location and design of the gaming room would “effectively destroy” the character of the premises because contrary to his concluded view:
·...... the parkland views in part would be preserved;
·      the proposed refurbishment would more effectively exploit the parkland setting of the premises for the enjoyment of a greater number of patrons than presently patronise the premises by reason of the provision of “alfresco” dining for the verandah area of the premises and by reason also of the upgrade of the existing premises generally.
........
3...... In the alternative if the Commissioner is correct in his finding as to the effective destruction of parkland views constituting and undue detraction from the character of the premises and consequently from the enjoyment of people ordinarily using the premises, that a relocation of the gaming room to the north eastern corner of the premises would have redressed the said undue detraction and accordingly the Commissioner erred in not indicating either in his reasons for decision by way of a condition or formally in the course of the application that such a relocation of the proposed gaming room would address his concerns.
4.That the Commissioner erred in finding that the proposal detracted unduly from the character of the premises and also from the enjoyment of persons ordinarily using the premises as the degree to which the proposal impaired the operation of the current premises was on all the evidence, not “undue” taking into account inter alia:
·...... The findings as to the state of the premises being run down and badly in need of the proposed refurbishment;
·      The finding that the hotel was catering for the needs of a very small clientele;
·...... The finding that the hotel was barely viable;
·      The finding that the premises are “more like a social club” than a hotel.
AND the appellant seeks the following orders on appeal:
(a)     That the appeal be allowed.
(b).... That the decision or order of the Commissioner be quashed and that in lieu thereof the application be granted.
(c)That in the alternative the above orders be made subject to the relocation of the gaming room at the north eastern end of the existing premises.”
The plaintiffs to these proceedings were, as I say, cited as respondents in that appeal. They filed a document entitled ‘notice of alternative contentions’ which was in the following form:
“Upon the hearing of the appeal the respondents will contend that the decision of the Commissioner should be upheld for the reasons given by him, and in the alternative, and additionally also, upon the following grounds:
1...... That the appellant failed to show that the conduct of the proposed gaming operations on the premises would not detract unduly from the nature of the undertaking carried out on the premises. (Section 15(4)(f) of the Gaming Machines Act 1992).
2. That the appellant failed to show that the conduct of the proposed gaming operations on the premises would be unlikely to result in undue offence, annoyance, disturbance or inconvenience for those who reside, work or worship in the vicinity of the premises (Section 15(4)(d) of the Act) having regard, in particular, to the evidence of existing patrons of the Regency Park Tavern as to their attitude to the introduction of gaming machines.
3...... That the appellant failed to show that the size of the proposed gaming operations on the premises would not be such that they would predominate over the undertaking ordinarily carried out on the premises (Section 15(4)(e) of the Act) having regard, in particular, to the evidence of existing patrons of the Regency Park Tavern as to social events which are held at the Tavern.”
The matter came on before the Licensing Court Judge who gave reasons for decision which he delivered on Friday 26 June 1998.
An order of the Court was signed which was in the following form:

“ LIQUOR LICENSING ACT, 1985

ORDER OF THE LICENSING COURT OF SOUTH AUSTRALIA
Application No: 19044 Licence No: 50106181
Premises: Regency Tavern
Days Road
REGENCY PARK SA 5010

Licensee: Lewis, T. B., Grant, D & Hains, S.
J

Lodged by: Scott Cove Pty Ltd
Date or Order: 26 June 1998 Effective 26 June 1998
Date:

APPEAL AGAINST DECISION OF THE LIQUOR & GAMING COMMISSIONER
I uphold the appeal and refer the application back to the Commissioner for the grant of the licence subject to such conditions as he shall reasonably think fit.
REASONS FOR DECISION DELIVERED

[signed]
LICENSING COURT JUDGE”

It can be seen that the order merely recites that the Court upheld the appeal and referred the application back to the Commissioner for the grant of the licence, subject to such conditions as the Commissioner might impose.
The order discloses “Reasons For Decision Delivered”.
The plaintiffs thereafter made this application for judicial review seeking from the Court, the following orders:
“1..... An Order in the nature of prohibition to prevent the first defendant granting a Gaming Machine Licence to the third defendant pursuant to the Gaming Machines Act, 1992 as amended.
2.An Order in the nature of certiorari to quash the decision of the second defendant sitting as the Licensing Court of South Australia delivered on the 26th of June 1998.
3...... An Order that the defendants pay to the plaintiffs the costs of this Application.
4.Such further or other orders as the court deems just.”
The application for judicial review was accompanied by an affidavit of Mr Nicholas Xenophon, the principal of the firm of solicitors acting for the plaintiffs.
In that affidavit he recited the circumstances leading up to the decision by the Licensing Court to allow the appeal and remit the matter to the first defendant. Then he set out the grounds upon which his clients or client sought the orders to which I have referred. I set out par 11 to 14 of his affidavit:
“11... The first and second plaintiffs seek an Order in the nature of prohibition seeking to prevent the first defendant from now granting the Gaming Machine Licence to the third defendant on the basis that the third defendant does not satisfy the “eligibility criteria” in Section 15 of the Gaming Machines Act, 1992 as amended. In particular, whilst the third defendant has applied for a transfer of the Hotel Licence in respect of the premises known as “Regency Tavern”, it is not currently the holder of a Hotel Licence in respect of those premises. In the event, the first and second plaintiffs say that the third defendant does not satisfy the criteria in Section 15(1) of the Gaming Machines Act, 1992 as amended. Exhibited hereto and marked with the letters “NX9” is a true copy of the third defendant’s Application for Transfer of Licence dated the 5th of February 1998.
12.The first and second plaintiffs also seek an Order in the nature of certiorari to quash the decision of the second defendant as his reasons for decision (“the record”) discloses errors on the face of the record. In particular, the first and second plaintiffs say that the second defendant erred in failing to attach sufficient or any weight to the preponderance of evidence that:
(i)the size of the proposed gaming operations on the premises was such that they would predominate over the undertaking ordinarily carried out on the premises.
(ii)the outdoor veranda area would not be used by existing patrons for the consumption of food and alcohol after modifications proposed by the third defendant had been implemented.
(iii)the loss of approximately one-third of the indoor licensed area to gaming activities would significantly impact upon existing uses of the premises and in particular social functions involving the Regency Tavern Social Club and the Regency Park Golf Club.
(iv)The proposed gaming operations on the premises would detract unduly from the character of the premises, the nature of the undertaking carried out on the premises or the enjoyment of persons ordinarily using the premises (apart for the purpose of gaming).
13.... Further, the first and second plaintiffs say that the second defendant erred in interpreting “character of the premises” in Section 15(4)(f) of the Gaming Machines Act, 1992 as amended by reference not only to the existing character of the premises, but by reference to the character of the premises after the modifications proposed by the third defendant have been implemented (including the introduction of gaming machines).
14.Further, the first and second plaintiffs say that the second defendant erred in proceeding upon the basis that the first defendant based his decision of the 19th of May 1998 upon the effect the introduction of gaming machines would have upon patrons of the Regency Tavern who attended the premises with their children when, in fact, the first defendant based his decision upon a finding that the proposed gaming operations would attract unduly from the character of the premises and, to a lesser extent, would detract from the enjoyment of persons ordinarily using the premises (within the meaning of Section 15(4)(f) of the Gaming Machines Act,1992 as amended).”
It can be seen from Mr Xenophon’s affidavit and the application that judicial review was sought in respect of two matters. First, it was claimed that an order in the nature of prohibition ought to go to prevent Commissioner Prior granting a Gaming Machine Licence to the third defendant because the third defendant does not satisfy the “eligibility criteria” in s15 of the Gaming Machines Act. It is not currently the holder of a Hotel Licence in respect of the premises known as Regency Tavern. In those circumstances, it was submitted, the third defendant is not entitled to issue a Gaming Machine Licence to the third defendant.

Moreover, it was put that the plaintiffs are entitled to an order in the nature of certiorari quashing the decision of the Licensing Court on the grounds that the decision discloses errors on the face of the record. The particulars are set out in Mr Xenophon’s affidavit in par 12 and following.
The plaintiffs obtained leave to serve the proceedings from a Master of the Court. The third named defendant was given leave to file and deliver an answering affidavit to the affidavit accompanying the application. The third defendant did file an affidavit which disputed the plaintiff’s entitlement to the order sought for the reasons advanced by the plaintiffs.
The matter was directed to come to trial before me on affidavits as a matter of urgency and the trial was heard on the affidavits. The first and second defendants did not appear having advised the Court they would abide the order of the Court.
The third defendant argued that no order in the nature of prohibition ought to go directed to the first defendant because it was recognised by the third defendant and the first defendant that the first defendant would not, in any event, grant the third defendant’s application for a Gaming Machine Licence until such time as the third defendant became the holder of a Hotel Licence, which would occur as soon as these proceedings are dismissed. It was submitted that no order in the nature of prohibition need be made because there has not presently been any illegality and there is no suggestion that the Commissioner would issue the licence until such time as the third defendant became the holder of a Hotel Licence. In the exercise of my discretion, it was submitted, I should not grant an order in the nature of prohibition directed to the first defendant.
In respect of the claim for an order in the nature of certiorari it was put that the record in these proceedings only includes the initiating documents and the order of the Licensing Court. Specifically, the third defendant argued that the record could not include the transcript or the reasons for decision of the first defendant or the reasons for decision of the Licensing Court Judge.
It was submitted by the third defendant that the record, properly understood, does not disclose any error of law.
In the alternative, it was put that, if the record does include the reasons for decision of either or both of the first defendant or the Licensing Court Judge then the reasons of the Licensing Court Judge do not disclose any error of law on the face of them. There may be errors of fact, it was conceded, but no errors of law. In those circumstances certiorari cannot go.
The Gaming Act limits those who might obtain a Gaming Machine Licence to persons who are the holders of any one of the licences referred to in s15. Otherwise no person is eligible to hold a Gaming Machine Licence. The Gaming Act, however, recognises a person may wish to apply for a Gaming Machine Licence before that person becomes entitled to be the holder of any of the licences in s15(1). It is assumed that a person may apply for the requisite Liquor Licence under s15(1) at the same time as a person may apply for a Gaming Machine Licence.
Ordinarily a person who applies for a Gaming Machine Licence will, at that time, hold one of the requisite licences under s15. That is because that person will own either the freehold or the leasehold of licensed premises, licensed under the Licensing Act.
However, licensed premises change hands. When they do the purchaser must apply for a transfer of the licence to himself or herself. That application is simply made by application to the Licensing Authority under s63 of the Licensing Act and the applicant must satisfy the Court that the applicant is a fit and proper person to hold the licence.
Ordinarily the vendor and purchasers of freehold or leasehold licensed premises agree on the sale and purchase of those premises that it will be a condition precedent to the sale and purchase of those premises that the Licensing Authority approves the transfer of the licence. The purchaser then makes application to the Licensing Authority for the transfer and when the Authority indicates that it will transfer the licence then the parties complete the sale and purchase of the freehold or leasehold premises.
Section 18(1)(c) of the Gaming Act specifically contemplates that at the time the application for a Gaming Machine Licence is made the applicant will not in fact be the holder of the requisite licence under s15. The Act contemplates that a person may apply and the Commissioner may consider that application notwithstanding that the person is not eligible under s15(1) to hold a Gaming Machine Licence.
In my opinion the Act contemplates that the Commissioner will indicate that the Commissioner is prepared to approve the application for a Gaming Machine Licence in the event that the applicant, who is then a person who has applied for a Liquor Licence but does not yet hold one, obtains the requisite Liquor Licence. That understanding of the Act is the only way that parties to the sale and purchase of premises licensed under the Licensing Act and for which the vendor holds a Gaming Machine Licence can deal with the sale of the premises.
Both the Gaming Act and the Licensing Act contemplate that there will be simultaneous approvals and a settlement such that the purchaser will become the owner of the freehold or leasehold premises immediately after he or she is approved as a fit and proper person under the Licensing Act, and otherwise entitled under the Gaming Act, and the licence under the Gaming Act will issue after the purchasers becomes the licensee under the Licensing Act.
Mr Saies, who appeared for the plaintiffs, argued that the Commissioner was not entitled to grant this application until such time as the third defendant was granted the requisite licence, in this case a Hotel Licence, by the Licensing Authority. I agree with that submission. Indeed, no argument was put to the contrary by Mr Besanko QC who led for the third defendant. However, whilst the Commissioner is not presently entitled to approve the application for a Gaming Machine Licence the Commissioner is entitled to hear the application for that licence.
No doubt when the Commissioner intimates that a licence will be granted then the third defendant will immediately obtain the requisite licence from the Licensing Authority under the Licensing Act.
The application for the order in the nature of prohibition was to prevent the first defendant granting a Gaming Machine Licence to the third defendant pursuant to the Gaming Machine Act. As I have said, I agree that such a licence cannot presently be granted. However, I do not think there is any possibility that the Commissioner will grant such a licence at the present time. When the matter came before the Commissioner, the Commissioner recognised that it would be inappropriate to grant the application for the Gaming Machine Licence until such time as the third defendant had obtained the transfer of the Liquor Licence.
The transcript shows that immediately after the parties announced themselves before the Commissioner the Commissioner said:
“No Pokies campaign and Mr Elleway being, this is being accompanied by an application for transfer of the liquor licence but it was agreed at the callover that because the two, well the transfer of liquor was dependant on the grant of a gaming machine licence we would hear the application for either the gaming machine licence even though I couldn’t grant it until we then proceeded to deal with the transfer of the liquor licence.”
The Commissioner recognised and the parties must have understood that he did not intend to grant this licence until such time as the third defendant became eligible under s15.
Whilst, technically, the plaintiffs are right that the Commissioner cannot grant the licence at the present time, in my opinion, it would not be appropriate to grant an order in the nature of prohibition preventing him from so doing.
It is clear that the Commissioner has recognised that he is presently unable to grant the Gaming Machine Licence and has recognised that he will not do so until such time as the third defendant satisfies s15(1) of the Gaming Act. In the exercise of my discretion I refuse the application for prohibition.
In respect of the claim by the plaintiffs, for an order in the nature of certiorari to quash the order made by the second defendant, the first matter to be addressed, which is critical to the application, is to identify precisely what is the record.
As I have mentioned, Mr Besanko QC, for the third defendant argued that the record was limited to the initiating proceedings and the order of the Licensing Court Judge. I took his argument to be that even the notice of appeal to the Licensing Court Judge did not form part of the record. In any event he argued specifically that the record does not include the transcript before the Commissioner or before the Licensing Court Judges or of the reasons for decision of either the Commissioner or the Licensing Court Judge.
Mr Saies argued on behalf of the plaintiffs that the record includes the initiating proceedings, the notices of objection, the orders including the reasons of the Liquor and Gaming Commissioner, the notice of appeal, the notice of alternative contentions and reasons for decision of his Honour Judge Kelly. Mr Saies recognised that it would not be appropriate to include the transcript of the proceedings before either the Commissioner or the Licensing Court Judge.
I think in the end the only point of dispute between the plaintiff and the third defendant was whether or not the reasons of the Commissioner and the Licensing Court Judge formed part of the record.
The dispute, however, is important. Mr Saies conceded that if I was to determine that the record did not include the reasons of the Commissioner and the Licensing Court Judge then he could not point to any error on the face of the record. If that was the case then the application for an order in the nature of certiorari would have to be dismissed.
The question of certiorari and the determination of the particular documents which form part of the record was discussed in Craig v South Australia (1995) 184 CLR 163.
In that case a person was charged in the District Court of South Australia with a criminal offence. He applied to a judge of the District Court for the proceedings to be stayed until he could be provided with legal representation, at public expense. The learned Trial Judge, after hearing his application and submissions made specific findings of fact and concluded that in the light of those findings the accused was without legal representation through no fault of his own and that he “could not receive a fair trial unless he was properly represented by counsel”. In conformity with the decision of the majority in Dietrich v The Queen (1992) 177 CLR 292 he determined that the trial should be adjourned, postponed or stayed until legal representation was available. He did not immediately stay the proceedings but adjourned the trial and appointed a date for a further status conference. He asked the Attorney General to be informed of the orders and the reasons for making them and that if no provision was made for representation by counsel within a reasonable time that he proposed that the applicant be at liberty to apply for further appropriate orders including a stay. The matter was re-listed and counsel for the Crown announced that the Attorney General did not intend to provide funds for the accused’s offence and the accused would not be represented. Counsel for the Crown then applied for the matter to be re-listed. The Judge stated that for the reasons he had “already published and given in relation to this matter” the trial would be stayed until further order. No further order was taken out but the clerk of arraigns noted on the back of the information: “H/H orders a stay of proceeding until further order”. No appeal lay from his Honour’s order and the Crown applied to the Supreme Court for an order in the nature of certiorari quashing the order staying the proceedings. The Full Court by a majority made an order in the nature of certiorari quashing the order of the District Court Judge staying the information upon the basis that a jurisdictional error had been made out.
The issues before the High Court were whether the District Court Judge had committed a jurisdictional error or whether there was an error on the face of the record. In so far as this case is concerned I am concerned only with that part of the High Court’s reasons which touch upon error on the face of the record.
The High Court was faced with competing arguments as to the extent of the content of an inferior court’s record for the purpose of an application for certiorari.
The Court observed that the legislative reforms in the nineteenth century had the practical effect of confining the content of an inferior court’s record for the purpose of certiorari to the documents initiating and defining the matter in the inferior court and the impugned order or determination.
The Court specifically rejected the argument that there ought to be an expansive approach to certiorari so as to include in the record of the inferior court or tribunal both the reasons for decision and the transcript of that court or tribunal. That argument was rejected for a number of reasons. First, it was said to be against the weight of authority in the High Court itself. The Court said that absent a statutory provision to the contrary the transcript, exhibits and reasons for decision did not form part of the record. Secondly, the expansive approach ought to be rejected because if the transcript and the reasons for decision became part of the record it might transfer the remedy of certiorari into “a discretionary general appeal for error of law”. That might itself lead to an excessive reliance upon applications for judicial review and orders in the nature of certiorari in circumstances apart from non jurisdictional error of law. The Court said:
“It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non jurisdictional error of law. In particular, a situation in which any proceeding in an inferior court which involved a disputed question of law could be transformed into superior court proceedings notwithstanding immunity from ordinary appellate procedures would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed.”
The Court believed it was better left to the legislature to determine whether there should be an increase in the availability of certiorari.
It is clear that the High Court emphatically rejected the expansive approach which would allow the record to include the transcript and the reasons for decision of the inferior court or tribunal.
However, the Court did not exclude the possibility that both the transcript and the reasons for decision could be incorporated in the record. If the inferior court or tribunal chose to include the transcript and the reasons for decision as part of the record then the court hearing the application for judicial review would have to consider whether the material so included in the inferior court or tribunal should be included or should be discarded.
An inferior court or tribunal might include, for example, the reasons for decision in the record by a reference in the formal order to those reasons for decision. The reference, however, must not be incidental. It must be more than an introductory or incidental reference to the reasons. It must be clear that the formal order does incorporate the reasons for decision.
The reasons for decision will not be incorporated simply by the presiding judicial officer making reference at the time of the making of the order to the reasons for that order. In fact, in Craig v South Australia the District Court Judge said: “For the reasons I have already published and given in relation to this matter” immediately before he made the order staying the proceedings. That was not, the High Court said, sufficient to incorporate his reasons in the record.
If the order does make it clear that the reasons will form part of the record, only those reasons for judgment which identify, qualify or otherwise affect the content of the proposed orders will become part of the record.
Whether or not the reasons for decision have been incorporated in the record of the inferior court or tribunal is a question in due course for the court hearing the application for judicial review. Ordinarily that court will determine that the documents forming the record of the inferior court or tribunal are only those documents which initiate the proceedings, the pleadings and the adjudication of that court or tribunal.
In this case there is nothing, in my opinion, which suggests that the reasons of the District Court Judge have been incorporated into the record.
The order shows that reasons for decision were delivered. The order does not purport, however, to include those reasons in the record. Even if it did, in my opinion, it would only include those reasons which were necessary to identify the order which was made. No such incorporation is necessary in this case.
In my opinion if Craig v State of South Australia is indistinguishable from this matter then the record, in this case, is limited to the initiating proceedings, the objection, perhaps the notice of appeal and the order simpliciter.
Mr Saies, however, sought to distinguish Craig v State of South Australia on two grounds. The first was that Craig v State of South Australia involved criminal proceedings. He said that there were special rules governing the record in criminal proceedings which do not necessarily apply in civil proceedings or proceedings akin to civil proceedings.
Whilst the historical development of certiorari may have been different in the criminal and civil jurisdictions there is no doubt, in my opinion, that the High Court did not discriminate in their reasoning between criminal and civil proceedings in Craig v State of South Australia. It cannot be said, in my opinion, that Craig v State Of South Australia can be confined to criminal proceedings and that their Honour’s reasons are not applicable to civil proceedings. There is simply nothing in the judgment to support that. I note that in Kriticos v State of New South Wales (Unreported, NSW Court of Appeal delivered on 2 February 1996) a decision of the Court of Appeal in New South Wales in which the Court, or at least the President of the Court, Kirby P was critical of the decision in Craig v State of South Australia, no suggestion was made that the dicta in the High Court was not applicable to proceedings under the Industrial Relations Act.
Craig v State of South Australia cannot be distinguished on the basis that it involved criminal proceedings.
The alternative argument put by Mr Saies in an endeavour to distinguish Craig v State of South Australia was that s69 of the Gaming Act allows for an appeal from an ‘order or decision’. A decision must be something other than an order and therefore a decision must be the reasons for decision. In those circumstances he said the reasons should be incorporated in the record.
There are two answers to that argument. First, even if the argument was right that would not mean that the Licensing Court Judge’s reasons ought to be included. The order or decision referred to in s69(1) of the Gaming Act is the order or decision of the Commissioner. If Mr Saies’ argument was right that would only allow for the incorporation of the Commissioner’s reasons in the record. That would not allow for the incorporation into the record of the Licensing Court Judge’s decision.
I suppose it might be argued that because s69(7) precludes a right of appeal against a decision or order of the Licensing Court that the Act is again talking about reasons for decision and this time the reasons for decision of the Licensing Court Judge.

However, it would be a very unusual result if an Act precluded a right of appeal from a decision and thereby made the reasons for decision part of the record so as to allow certiorari to lie and thereby allow the decision from which an appeal does not lie to be subject to judicial review for error of law other than jurisdictional error.
Secondly s69(1) talks about an appeal to the Licensing Court against an ‘order or decision’ and s69(7) precludes an appeal against a ‘decision or order’ of the Licensing Court to any other Court.
A party does not appeal against reasons for decision but only appeals against the ultimate order. For example, a party would appeal against an order refusing to grant an application for a gaming licence. That is indeed what the third defendant did in this case. In appealing against that refusal the appeal is limited to an appeal against the order. The appeal will be argued upon the basis that the reasons of the Commissioner do not support the order but the appeal is still against the order.
In the common law courts appeals lie against judgments, orders or decisions, but an appeal does not lie against the Court’s reasons. A party only ever appeals against the ultimate decision.
I do not read the decision in s69 as meaning reasons for decision. I read decision as being something that is not an order or a direction but is the ultimate conclusion arrived at, in the case of s69(1) by the Commissioner or in the case of s69(7) by the Court or the Authority.
I do not agree that the word ‘decision’ in s69 allows it to be said that Craig v State of South Australia has no application to applications for certiorari from a decision of a Licensing Court Judge under the Gaming Act.
In my opinion, I am bound by Craig v State of South Australia to find that the reasons for decision of Judge Kelly do not form part of the record.
In those circumstances it cannot be said, as Mr Saies properly conceded, that there is any error of law on the face of the record.
Mr Besanko also argued that certiorari would not lie even if the Licensing Court Judge’s reasons did form part of the record. He said that on a proper examination of the matters complained of the plaintiffs were not addressing errors of law at all but only errors of fact. I am inclined to agree with that argument but I need not decide it.
In my opinion, the plaintiffs are not entitled to any discretionary order in the nature of prohibition and have no entitlement whatsoever to an order in the nature of certiorari.
The proceedings should be dismissed.

[1998] SASC 6949

16 November 1998