North Coast Property Holdings Pty Limited v Independent Liquor and Gaming Authority

[2024] NSWCATAD 98

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

North Coast Property Holdings Pty Limited v Independent Liquor and Gaming Authority [2024] NSWCATAD 98

Hearing dates:

13 – 14 December 2022, 12 May 2023

Date of orders:

15 April 2024

Decision date:

15 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

(1) The decision under review is affirmed.

(2) Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the public.

Catchwords:

LICENSING — Liquor licensing — Hotel licence — Extension of trading hours

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW), s 128

Gaming and Liquor Administration Act 2007

Gaming and Liquor Administration Regulation 2016, r 7(b)

Gaming Machine Regulation 2019, cl 8

Liquor Act 2007 (NSW), ss 48, 49

Cases Cited:

Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394

Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25

BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129

Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd [2017] NSWCATAP 185

Independent Liquor and Gaming Authority v Auld [2019] NSWCA 88

Kallin Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36

Macedon Ranges Shire Council v Romsey Hotel (2008) 19 VR 422

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

QX00/C and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 114

Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286

Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224

Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2022] NSWCATAD 255

Texts Cited:

Independent Liquor and Gaming Authority, GL4010 - Guideline 6, Consideration of Social Impact under s 48(5) of the Liquor Act 2007, 13 October 2021

Independent Liquor and Gaming Authority, GL4026 - Guideline 16, Late-night gaming applications, 12 May 2021

Independent Liquor and Gaming Authority, Fact Sheet FS3138 Local Impact Assessment scheme overview undated

Category:

Principal judgment

Parties:

North Coast Property Holdings Pty Ltd (Applicant)

Independent Liquor and Gaming Authority (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
A Cheshire SC and M Gaven (Respondent)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/00122301

Publication restriction:

Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the public.

REASONS FOR DECISION

Introduction

1. The applicant, North Coast Property Holdings Pty Ltd (NCPH), is the licensee of the Toormina Hotel, located in the local government area of Coffs Harbour on the mid-north coast of New South Wales.

2. NCPH seeks a review of a decision of the respondent, the Independent Liquor and Gaming Authority (Authority), to refuse its application for an extended trading authorisation (ETA) to its hotel licence, which, had it been granted, would have authorised the trading hours at the Toormina Hotel to be extended so that a defined area of the Toormina Hotel would close at 2 AM Monday to Saturday and at midnight on Sundays. The Authority notified NCPH of its decision on 16 February 2022.

3. For the reasons set out below, I have determined that the Authority’s decision should be affirmed.

4. The hearing occurred over an extended period to allow for the parties' availability. On the last day of the hearing, a question pertaining to the Tribunal’s jurisdiction to determine the application was ventilated, and I gave directions for the parties to make further submissions concerning that question in accordance with an agreed-upon timetable. As a result, the Tribunal received final submissions on 22 June 2023, after which time the Tribunal reserved the matter to consider its decision.

The Jurisdiction and Role of the Tribunal

5. NCPH made an application for an ETA in about July 2021. This was a prescribed application as defined under the Gaming and Liquor Administration Regulation 2016, r 7(b).

6. As such, the Authority’s decision determining the application is amenable to review by this Tribunal under the Gaming and Liquor Administration Act 2007 (NSW) (Administration Act), s 13A and the Administrative Decisions Review Act 1997 (NSW), ss 7 and 9.

7. The Authority's decision was made pursuant to the Liquor Act, s 51. On review, the Tribunal exercises the same powers. The Tribunal is to determine this application by deciding the correct and preferable decision with regard to the material before it, including any factual material and the applicable law; Administrative Decisions Review Act, s 63.

Role of the parties and onus

8. The Authority’s role in these proceedings is, as it submitted, to assist the Tribunal in reaching the correct and preferable decision on the material before it: Macedon Ranges Shire Council v Romsey Hotel (2008) 19 VR 422 at [31].

9. The Authority submitted that as part of the “material before the tribunal”, regard was to be had to the decision of the Authority, particularly where the decision involves specialised expertise and knowledge. The Authority cited the judgment of Kirby J in Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [37] as authority for that proposition. The passage, while forming part of the majority in Shi, does not go as far as the Authority’s submissions contend. The passage in Shi is an orthodox statement, in my respectful opinion, of the process the Tribunal must undertake in merits review proceedings. Specifically, at [37]-[38] Kirby J stated:

Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”, particular where it involves special expertise or knowledge. But ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.

There was no error in this analysis. On the contrary, it represents the correct and preferable view of the legislation establishing the functions and powers of the Tribunal. [footnotes omitted]

10. The Authority also submitted that the weight to be given to the findings and decisions of an administrative body whose decision is under consideration will depend on matters such as the nature of the body’s consideration and the legislative provisions regulating its review. The Authority relied on QX00/C and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 114 at [71] as authority for that proposition. I do not consider that the statement relied upon by the Authority from QX00/C goes as far as it contends. Indeed, the following paragraph, which proceeds that which the Authority cited, sets out, in my respectful opinion, the correct approach for the Tribunal to take when considering the decision under review:

… The Act does not vary the provisions of the AAT Act. Therefore in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence led before the Board. As part of that review process, we must make findings of fact based on the evidence and we must reach our decision in light of those findings and the relevant law. If we were to give weight to the decision of the Board simply because of our regard for the Board and because it is the highest level of peer review of an auditor’s conduct, we would be taking into account something other than the evidence and we would be in danger of adopting the Board’s decision rather than making our own. The Board’s decision can only be evidence of the fact that it made a decision based on certain findings of fact. It founds the Tribunal’s jurisdiction but it cannot itself be evidence of the matters upon which it has reached a decision and it cannot influence the decision in review that the Parliament has entrusted to this Tribunal.

11. In these proceedings, neither party bears a legal burden of proof; Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [25], but the applicant bears a practical or evidentiary burden to ensure there is sufficient evidence before the Tribunal to reach the requisite level of satisfaction required to be reached pursuant to particular provisions of the enabling statute; Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 at [50].

A further jurisdictional question

12. On the final day of the hearing, the Authority raised a jurisdictional point that was then the subject of further written submissions from both parties. Regrettably, the submission was made at such a late stage in the proceedings, after the application had been on foot for more than a year and after three full days of hearing time had been spent. This lateness is, in part, explained by changes to the application and evidence regarding further conditions being offered.

13. Regardless of how the issue arose, as both NCPH and the Authority acknowledged, since a point concerning jurisdiction has been raised in a considered fashion, the Tribunal must address it.

14. The Authority contended that the Tribunal has no jurisdiction to grant an ETA regarding trading on Monday to Saturday evenings but conceded that the Tribunal remains seized of jurisdiction regarding that part of the Application that concerns Sundays.

15. The basis of the Authority’s contention on jurisdiction is that NCPH has stated that, if granted an ETA, it will not serve alcohol during the extended trading hours, save for the period up to about midnight on Sundays. Further, NCPH offered that non-service of alcohol in the early hours of Monday – Saturday evenings would be a condition of the authorisation. The Authority couched its submissions in the following terms:

An ETA subject to a condition that liquor not be sold during the ETA period is a contradiction or an oxymoron. There is no jurisdiction to grant an ETA to sell liquor during a period, subject to a condition that liquor not be sold during that period.

16. The Authority concluded its written submissions that:

It is contrary to the regime for the sale and supply of liquor established under the Liquor Act to grant an ETA, which is by definition for the purpose of the sale and supply of liquor, but on condition that it cannot be used for that purpose, but only for other purposes, in particular here gaming. Put another way, it is not permissible to grant an ETA exclusively for purposes other than the sale and supply of alcohol, in particular gaming.

17. The Authority referred to reasons in Independent Liquor and Gaming Authority v Auld [2019] NSWCA 88 in particular [93] per Sackville JA with whom McFarlan and White JJA agreed. The statement of principle in the passage relied upon is uncontroversial; that is that a hotel licence must satisfy the test set out in the Liquor Act, s 15(1), which requires the primary purpose of the business carried out at the premises to be the retail sale of liquor.

18. Factually, Auld is a different case from the present application; it concerned an attempt to transfer or “remove” a hotel licence from a non-operation hotel to a supermarket for the purpose of selling packaged liquor. There was no controversy in this case that the primary purpose of NCPH’s hotel licence was the sale of liquor by retail at the Toormina Hotel. Had that fact been in contention, I would, on the evidence before the Tribunal, have determined the matter in the affirmative. In Auld, the Court of Appeal overturned the Tribunal’s decision in part on the basis that it was not permissible to ignore the primary purpose test under the Liquor Act, s 15; in short, the decision resolved the factual incongruity that a hotel’s primary purpose is not the same as, as a supermarket, and nor does a supermarket have the character of a hotel.

19. An exception to the primary purpose test under the Liquor Act s 15 is contained in s 15A, which allows a licensee to cease the sale of liquor and continue with other activities, including the service of food and gambling. With respect to an extended trading authorisation, the cessation of the sale of liquor may occur at any time. As the Authority correctly notes, the cessation of the sale of liquor under s 15A(1) is at the discretion of the licensee – not a matter of condition for a licence or an ETA. The Authority then submits that “an ETA must be tied to the sale or supply of liquor” and that the primary purpose test must be satisfied save for the discretion under s 15A.

20. The Authority then refers the Tribunal to the text of the Liquor Act, ss 49(2), 49(5) and 49(6). Each of those provisions refers to an extended trading authorisation as authorising the sale or supply of liquor on licenced premises. The Authority submits that these provisions give effect to the primary purpose test and make clear the integral connection between an ETA and the sale and supply of liquor. The ultimate submission of the Authority is that, save for the Sunday component, the application before the Tribunal is not for an ETA as described, for example, in the Liquor Act, s 49(2) and that the Tribunal is not seized of jurisdiction in respect of anything other than the Sunday application.

21. NCPH submits that its application for an ETA must be looked at as a whole; if any part of the application includes the service of liquor during the extended trading period, then the Tribunal’s jurisdiction is enlivened. There is force in NCPH’s submission on this point. NCPH’s application for an ETA seeks extended trading over each day of the week. NCPH’s application is not crafted in the alternative, or in cascading terms. At the hearing, neither the Authority nor the Tribunal put to NCPH that conditions might be imposed or variations made to its ETA application such that authorisation would be provided only for certain days of the week and not for others. Had such conditions or variations been proposed, these would have required the Tribunal to follow the process under the Liquor Act, s 51(13). This is different from the decision in Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394, where the licensee had been granted a partial ETA and then, at the hearing, the Authority contended for a removal of extended hours previously allowed. In that case, the licensee had the opportunity to address the Tribunal on the issue of whether the partial ETA should remain in place and contend that the full ETA as sought should be granted. Consequently, these proceedings have been conducted on the basis that the Tribunal is to consider whether to allow or refuse the ETA application in the form contended for by NCPH and not on some other, more limited, basis.

22. Accordingly, and for the above reasons, I have concluded that the Tribunal has jurisdiction to conduct the review of the Authority’s decision to refuse NCPH’s application for an ETA.

The Applicable Law

The Liquor Act 2007 (NSW)

23. The principal legislation is the Liquor Act 2007 (NSW), the objects of which, and the matters to which regard must be had when securing such objects, are set out in s 3. The objects that are relevant to determining the correct and preferable decision in this case are set out as follows:

(1) The objects of this Act are as follows—

(a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community,

(b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality,

(c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries.

(2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following —

(a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour),

(b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor,

(c) the need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, contributes to, and does not detract from, the amenity of community life,

(d) the need to support employment and other opportunities in the—

(i) live music industry, and

(ii) arts, tourism, community and cultural sectors.

24. In its reasons, the Authority stated that the gaming machine industry is a “related industry” for the purposes of the Liquor Act, s 3(1)(c).

25. The objects are reflected in the community impact provisions under the Liquor Act, s 48 and most particularly subsection 48(5), which is also the principal applicable statutory provision in this case. That section provides:

(5) The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to—

(a) the community impact statement provided with the application, and

(a1) any published cumulative impact assessment that applies to the area in which the premises the subject of the application are located, and

(b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions),

that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community

26. A “relevant application” includes, among other matters, an application for an ETA: Liquor Act, s 48(2)(c).

27. In addition to the requirements of satisfaction under the Liquor Act, s 48(5), there is a further restriction on granting and ETA under the Liquor Act, s 49(8), which provides:

(8) Restrictions on granting extended trading authorisation

The Authority must not grant an extended trading authorisation in respect of licenced premises unless the Authority is satisfied that —

(a) practices are in place, and will remain in place, at the licenced premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and

(b) the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises.

28. As the Authority submitted, even if the mandatory pre-conditions in the Liquor Act, ss 48(5) and 49(8) are met, the decision whether to grant an ETA is discretionary: Liquor Act, ss 45(1), 49(2).

29. NCPH submitted that there is no precautionary principle to the exercise of discretion under s 48(5) and that the Authority has to prove its case. NCPH relied on the Tribunal’s decision in Kallin Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36 as authority for that proposition. Kallin at [27]–[30] simply concludes that the relevant legislation is clear, and it is unnecessary to apply the so-called precautionary principle – a finding which I respectfully agree with. The Applicant’s submission goes further than Kallin by contending that the Authority must prove its case; I reject that aspect of the Applicant’s submission as it does not reflect the legislative test to be applied.

Additional material provided by the Authority

Guidelines

30. The Authority, pursuant to the Liquor Act, s 57, has issued various guidelines that are relevant to the subject matter of these proceedings. In particular, GL4010 - Guideline 6, Consideration of Social Impact under s 48(5) of the Liquor Act 2007 which is dated 13 October 2021 (Guideline 6) and GL4026 - Guideline 16, Late-night gaming applications, which is dated 12 May 2021 (Guideline 16). In submissions, the Authority contended that the Guidelines should be considered as policy applied by the administrator in relation to the matter concerned and to which the Tribunal may have regard in determining the application for review under the Administrative Decisions Review Act, s 64(4). The Authority further submitted that the Guidelines were “plainly relevant and ought to be applied by the Tribunal”.

31. While I agree that the Guidelines are relevant, the Tribunal is not, as the Authority contends, required to apply them; the Tribunal is merely to have regard to the policies and, indeed, should not have regard to them if the policies are contrary to Government policy (as defined), contrary to law, or where the policy produces an unjust decision in the circumstances of a case. Accordingly, the Tribunal will have regard to Guidelines 6 and 16 to the extent provided in the Administrative Decisions Review Act, s 64(4). The relevant parts of Guideline 6 are paragraphs 25 – 49 of Guideline 6 and the whole of Guideline 16, and, where relevant, the Tribunal will refer to some aspects of those Guidelines in its consideration below.

Local Impact Assessment Scheme Overview

32. The Authority provided, for information of the Tribunal, Fact Sheet FS3138 “Local Impact Assessment scheme overview”. This document sets out when a Local Impact Assessment is required to be prepared by a licensee, which is dependent on the classification of the Statistical Area 2 (SA2) where the licenced premises are located. The Local Impact Assessment is designed to assess the impact of introducing additional gaming machines into an SA2. Hence, it is not directly relevant to the matters to be determined in this case since the question here is whether the Toormina Hotel can allow its machines to be used for an extended period rather than increase the number of gaming machines. Accordingly, the relevance of the Fact Sheet is limited. The relevance of the Fact Sheet arises from its explanation concerning the classification of SA2 areas into three bands reflective of gaming machine impact: Band 1 – corresponds to low-risk areas, Band 2 – is areas of moderate risk, and Band 3 – is high-high-risk areas. The factors for classification depend on three factors, which are weighted as shown: the gaming machine density of the area per capita (15% weight), gaming machine expenditure of the area per capita (15 % weight) and the relative social disadvantage of the SA2 (70% weight). Those areas in the lowest 20% of the combined weighted classification, being those areas with the highest levels of socio-economic disadvantage, are categorised as being Band 3 areas. The Toormina Hotel is classified as being in a Band 2 area.

The Evidence

Section 58 Bundle, including NCPH’s application and supporting materials

33. At the hearing, the Tribunal had before it a bundle of documents filed by the Authority under the Administrative Decisions Review Act, s 58 (s 58 Bundle). That bundle, which extended to over 400 pages, comprised material which the Tribunal should have regard pursuant to the Liquor Act, s 48(5).

34. The s 58 Bundle included NCPH’s completed application form and associated documentation, including NCPH’s current licence, the current Alcohol Plan of Management and Security Management Plan dated 8 February 2021, a community impact statement, plans of management for the provision of gaming, alcohol, and security for the Toormina Hotel; an advertising certificate; a floor plan; and a notice of determination issued by the Coffs Harbour City Council. The application and the associated documentation provided by NCPH complied with the requirements for an ETA application, including, relevantly, Gaming and Liquor Administration Regulation, cl 28.

35. As part of its ETA application, NCPH submitted a petition with about 383 names and signatures in support of the extension of trading hours. This petition was tendered to demonstrate sincere community support for extended trading hours. There are some problems with the petition that reduce weight the Tribunal might otherwise attribute to evidence of this kind:

1. First, there is no evidence that the petition was circulated in the community. Instead, the evidence tended to suggest that the petition was only available for signing at the Toormina Hotel. The practical effect was that only those members of the community who were also customers of the Toormina Hotel expressed an interest in extended hours of trade. While most, if not all, petitioners identified themselves as residing in the Coffs Harbour LGA, this was a self-selecting group of patrons rather than a representation of broad-based community support. Further to this, the observations of patronage showed that, on its busiest times of trade, the Toormina Hotel had more than 200 patrons each evening; accordingly, the number of names and signatures on the petition is also relatively modest when compared to patronage numbers at the hotel.

2. Second, and relatedly, relative to the population of Toormina and the Coffs Harbour LGA, the number of petitioners is insignificant: Toormina has a population of more than 6,171 people, and according to 2021 census data provided in the updated statistical material provided by one of the witnesses for the Authority, the Coffs Harbour LGA had a population of about 72,944. Accordingly, the petitioners represent about 6% of Toormina residents and only .5% of the total Coffs Harbour population.

3. Third, the petition contains at least five petitioners who are also employees of the Tavern. These include (referring to last names only) Smyth, Alderton, Price, Hurley and Richardson. Of these, one person signed the petition twice. Each of these people can be identified as staff by having been referred to as such by Mr Mower in cross-examination, or their names can be recorded in the incident log tendered in the proceedings. While staff may also be residents, it is clearly not the intention that employees of the Toormina Hotel should be petitioners for extended hours at their place of work.

36. In addition to the petition, the s 58 Bundle contained submissions in support of NCPH’s application for an ETA from 12 members of the public. The Authority submitted that the letters from the public were not reliable since several of them were written in identical terms and appeared to have been prepared for signature by someone working at or for the Toormina Hotel. Under cross-examination, Mr Mower, the general manager of the Toormina Hotel, conceded it was “possible” a staff member at the hotel had prepared the letters but was not able to assist the Tribunal further regarding the preparation of that correspondence. The repetitive nature of the letters reduces the impact of their content, as does the fact that the names of people who then signed each letter appear to have been written in by another person. Nonetheless, it is reasonable to conclude that the people signing these letters agreed with their content and sentiment concerning extended hours. The number of patrons, 12 in all, who were sufficiently dedicated to the cause represents a minimal number of patrons. As the Authority’s inspectors observed, up to 215 patrons attended the Toormina Hotel on one night alone at the peak of Friday night trading. Further, the contents of the letters do not really explain why they are in need of entertainment after midnight every night of the week; several only refer to a proposed late-night trivia competition to be held on Thursdays, and others refer vaguely to sporting events that start after midnight but do not comment on when such events might conclude. None of the support letters countenanced the need, asserted by the NCPH in other submissions, for the ETA to operate to meet the needs of shift workers. Accordingly, while I give this material some weight in considering the matters in the Liquor Act, ss 48(5)(b) and 49(8)(b), I do not give it substantial weight.

37. Within the s 58 Bundle were the reasons for the Authority’s refusal of NCPH’s application for extended trading hours authorisation. The reasons for the decision identified, in particular, the potential for gambling-related harm to increase if the ETA were granted. As NCPH’s ETA application expressly excludes the service of alcohol during the sought-for extended hours, I consider the question of whether the ETA would give rise to, or increase, gambling-related harms should be a matter to which I give significant weight. Relevant to gaming, the Reasons stated that:

1. Under the Local Impact Assessment Scheme, the Toormina Hotel is located in a Band 2—medium-risk area but was adjacent to a Bank 3—high-risk area for gaming harms. The Toormina Hotel has 28 gaming machines and TAB betting facilities.

2. Gaming machine density in Toormina and the neighbouring suburb of Sawtell is almost twice that of the NSW average, which is significant given the community's high levels of socio-economic disadvantage.

3. [NOT FOR PUBLICATION]

4. The research evidence on gaming habits shows that higher-risk gamblers are more likely than any other group to gamble after midnight and to play for more extended periods overall and that the Authority, when considering which course of action best serves the responsible development of the gambling machine industry, is concerned with “at-risk” as well as “problem” gamblers; together those groups, according to the NSW Gambling Survey 2019, comprised 36% of NSW electronic gaming machine players and gambling expenditure generally. Accordingly, despite the mitigation measures contained in NCPH’s gaming plan of management and the consent to that plan of management being a licence condition, the Authority remained particularly concerned that an extension of trading hours would have an adverse social impact on problem or at-risk gamblers in the local and broader community, in particular those members of the community who were also socio-economically disadvantaged.

5. Referring to the objection written by Yvette Pacey as the Chairperson of the Galambirra Elders Group, to which the NCPH elected not to respond, the Authority noted that the Galambirra Elders Group submission included that granting an ETA would provide further opportunities for vulnerable community members to squander benefit payments during the extended trading hours and that could cause an increase in financially disadvantaged people missing payments, which would then put additional pressure on charitable and government organisations. The Galambirra Elders Group had also submitted to the Authority that extended trading hours might contribute to further gambling-related harms, including financial harm, relationship disruption, conflict or breakdown, emotional or psychological distress, cultural harm, reduced performance at work or study and increased criminal activity. In submissions, NCPH notes that the “official representative body of the local indigenous population” was the Coffs Harbour Local Aboriginal Land Council (CHLALC) and that it had not provided any submission – for or against – the ETA. I take nothing from the lack of a submission from the CHLALC; community bodies may have many reasons for not responding. The absence of a response from the CHLALC cannot be taken as being a gesture of support or an action of opposition to the application. NCPH was critical of the Authority preferring the submission of the Galambirra Elders Group; with respect, I consider that submission to be an unfair characterisation of how the Authority treated the submissions provided; the Authority was entitled, as the Tribunal is now entitled to take account of a thoughtful and considered submission such as that submitted by the Galambirra Elders Group with regard to the application at hand. I note too that, in an email dated 25 January 2022, Sergeant Saunders informed the Authority that the Aboriginal Liaison Officer attached to the relevant police district had ‘indicated there were some concerns within the Aboriginal community when the matter was raised …’.

6. The concerns raised by Ms Pacey on behalf of the Galambirra Elders Group were similar to the objections made by the Sawtell Uniting Church, Sawtell Catholic Care and LifeHouse Church. Each of those organisations gave written submissions objecting to the grant of an ETA, each specifically referring to gambling-related harms to individuals and the community that might arise from extended trading hours.

7. Referring to concerns raised by NSW Police in their objection to the ETA, the Toormina Hotel is in close proximity to a known clubhouse of an Outlaw Motorcycle Club (OMC); police have observed known OMC members entering the Toormina Hotel and are concerned about possible money laundering activities occurring with extended hours. In response, NCPH stated that people wearing “motorcycle colours” were not permitted entry and that its staff were “duly trained in anti-money laundering compliance measures”.

8. On the issue of gambling-related harms associated with the ETA application for the Toormina Hotel, the Reasons concluded that:

“Given the number of gambling risk factors, including the overall economic vulnerability and financially constrained local community, which reduced its ability to sustain gambling losses, the Authority is satisfied that maintaining the status quo is the more responsible approach to the development of the gaming machine industry. This will ensure a longer effective shutdown of machines across the course of the week in this local community, giving ‘at risk’ or ‘problem’ gamblers a meaningful opportunity to stop gambling for the night.”

38. Liquor & Gaming NSW LiveData report for Toormina was included in the s 58 Bundle. These statistics differed to a limited extent from the Australian Bureau of Statistics (ABS) QuickStats information provided by NCPH as part of its application, though both appear to have been drawn from the same data set. Where available, I have preferred the statistical material exhibited in Ms Corazza’s affidavit, which includes 2021 Census data over both the s 58 LiveData report and the ABS QuickStats information. However, the differences between all these sources are not substantial. In summary, the statistics show that:

1. Toormina is a suburb whose population, from the 2021 Census, was 6,171. The ABS classified Toormina as an inner regional area.

2. The population of Toormina includes 8.7% of people who identify as being Aboriginal or Torres Strait Islander.

3. According to the Socio-Economic Index for Areas, Index of Relative Economic Advantage and Disadvantage, produced by the ABS Toormina is disadvantaged. Its households are in the bottom 5% of households in terms of household income and residents in skilled occupations. The demographic data also showed that over the period from 2006, Toormina’s socio-economic disadvantage has increased; in 2006 it was in the bottom 14% of households and in 2011, it was in the bottom 7% of households. The Coffs Harbour LGA is also classified as disadvantaged, being in the lowest 46% of households. Like the suburb of Toormina, the Coffs Harbour LGA has also experienced further socio-economic decline between 2006 and 2016, but not to the same extent. Those statistics are contrary to the rather vague evidence of Mr Purcell and Mr Mower tendered by NCPH to suggest that the socio-economic status of Toormina and surrounding areas was rising. I have concluded that the statistical evidence is more reliable than the observations of those witnesses.

4. Outlet density for Toormina is significantly lower than the State average, though overall outlet density for the Coffs Harbour LGA is higher than the State average. The number of late-trading establishments in Toormina is significantly lower than that of the Coffs Harbour LGA, inner regional Australia, or the State. NCPH relied on this low outlet density to submit that Toormina needed more hotel hours to provide for the needs of the community. I disagree with that submission; it is not axiomatic that the needs of the community are going unmet simply because outlet density is lower or even significantly lower than the State average. Moreover, the number of late-trading establishments in the Coffs Harbour LGA is higher than that of both inner regional Australia and the State.

5. In terms of criminal offending, the statistics showed that for June 2021, incidents of alcohol-related domestic assault in Toormina were substantially higher than the rate for inner regional areas or the State as a whole. While alcohol-related non-domestic assaults for Toormina were lower for the same period, those assaults had increased from 2020. Half of those incidents were classified as serious (involving actual or grievous bodily harm), and all of those serious incidents occurred between midnight and 6 AM. This was higher than Coffs Harbour LGA, but the small number of incidents in Toormina (10 incidents) compared with Coffs Harbour LGA (163 incidents) may not properly depict the risk of these offences. The rate of incidents involving malicious damage to property was, in each statistical period, materially higher in Toormina than in Coffs Harbour and inner regional Australia.

39. The s 58 Bundle also included a gaming revenue statement for the premises concerning the contents of which the Tribunal. At the hearing of the application, an exhibit to Mr Mower’s affidavit was subject to non-publication orders pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64. In aid of those orders, I have considered that the gaming revenue statement for the premises should also be subject to non-publication orders in the same terms. That material showed:

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

40. In addition to the material contained in the s 58 Bundle, both NCPH and the Authority relied on further affidavit evidence and material exhibited or annexed to those affidavits. The content of which I set out in detail in the proceeding paragraphs.

Further evidence for the Applicant

41. The Applicant relied on the evidence of three witnesses in further support of its application.

Mr Mower

42. Carl Mower is the General Manager—Coffs Coast for NCHP, and in that role, he is responsible for the Toormina Hotel and two other establishments run by NCPH. Mr Mower made three affidavits in these proceedings, dated 12 August 2022, 10 November 2022 and 4 December 2022; each of these affidavits were read without objection. Senior Council for the Authority cross-examined Mr Mower at the hearing.

43. By his first affidavit, Mr Mower explains his role as the Approved Manager for NCPH’s liquor licence for the Toormina Hotel. He stated he had worked at the Toormina Hotel since October 2016 (when NCPH purchased the hotel) and has held the position of Approved Manager since December 2018. In cross-examination, Mr Mower explained that he was initially employed as the Operations Manager, the difference between that role and his current one being that the General Manager role has more over-arching responsibilities. He stated that his role as general manager involves oversight of all aspects of the Toormina Hotel’s operations. Mr Mower sets out a range of improvements, sponsorships of sporting and other groups and regular community services and attractions provided by the Toormina Hotel since its acquisition by NCPH in 2016. He stated in his affidavit that the Toormina Hotel employed 63 staff (but under cross-examination, explained that this number had increased to 72), all of whom live in the local community.

42. In cross-examination, Mr Mower explained that the Toormina Hotel currently has one operations manager compared with two such managers at NCPH’s other hotels, Moonee Beach and the Sawtell Hotel.

43. Under cross-examination, Mr Mower stated that he attends the Toormina Hotel once or twice a week and on his way home. It was his evidence that he was really providing guidance to the duty managers who reported to him. He stated that he attended the hotel most nights but was usually not in attendance up to midnight or past 10 PM. Aside from this evidence, Mr Mower did not account for the fact that he was not present at any of the inspections conducted by the police.

44. Mr Mower stated that it was his practice to sit in a booth in the middle of the hotel so he could have a good vantage point for supervision. He also said that he would clear plates, pick up glasses, and walk the floor, which he considered better than working behind the bar because he could see what was happening in the hotel when he was present.

Need for Late Night Trading

47. Mr Mower gave evidence that patrons had said to him that they wanted to have the Toormina Hotel stay open for longer for functions, watching sports, socialising, playing pool and gaming machines. He stated that many of the Toormina Hotel’s patrons are shift workers who would be serviced by being able to attend the hotel late at night after work. Mr Mower also stated that “a number” of patrons continue on to other venues after Toormina Hotel closes for the evening. It was only in cross-examination that Mr Mower identified one patron, who was also the president of the Sawtell Soccer Club, who had specifically asked about extended hours for sporting matches. Also in cross-examination, Mr Mower accepted that this person had written one of the twelve letters of support or signed their name to the petition. I am unable to give much weight to this evidence; it was vague and generalised and was not supported by other evidence.

Community consultation

48. Mr Mower was asked in cross-examination whether he had engaged in any community consultation regarding noise impacts of the ETA. He replied that he had not. Also, in cross-examination, Mr Mower said that he had not attempted to speak with anyone from Sawtell Catholic Care, which operates a residential aged care home near the Toormina Hotel and who had raised concerns about noise emanating from the hotel. Nor had Mr Mower spoken to or contacted representatives from the Sawtell Uniting Church, the LifeHouse, or the Galambirra Elders Group to discuss the concerns raised in their written objections to the ETA application. Though he conceded that these groups comprised members of the community in which the Toormina Hotel operated, he stated that he “did not see any point in discussing” matters with those groups unless or until the ETA was granted. This evidence was surprising in that it showed, in my opinion, a lack of willingness on the part of the NCPH to communicate and genuinely engage with significant groups within the Toormina and Coffs Harbour LGA who had taken the time to set out the basis of their concerns – in particular groups often left with responsibility for dealing with the damage caused by gambling and alcohol misuse. The failure to enter into discussions is contrary to the intention expressed in the Liquor Act, s 48(1)(b), and neither the Authority nor the Tribunal were therefore assisted in this regard. The Tribunal is unable to speculate on what those communications may have produced. Still, the impression formed by Mr Mowers's responses was that he was only willing to discuss the potential harms that he acknowledged arose from the ETA once NCPH had achieved its goal – at which point the community groups may also have seen no point in discussing the matter with him.

Alcohol and gambling harm minimisation

49. Mr Mower, in his first affidavit, set out the harm minimisation measures contained in the Toormina Hotel’s alcohol plan of management and also addressed a substantial number of measures in pursuit of gaming harm minimisation. Mr Mower acknowledged that there is always the potential for problem gamblers to attend the hotel. He stated that having considered the reasons for decision of the Authority, he was prepared to operate the Toormina Hotel in accordance with an enhanced Gaming Plan of Management, which would include a dedicated, Responsible Gaming Manager, creating a strong culture of gambling harm minimisation, providing additional staff training on identifying signs of problem gambling, promoting local support services, conducting responsible gambling awareness campaigns, increasing the minimum period of self-exclusion to six months, and keeping a responsible gaming incident register. These measures are in addition to the Toormina Hotel’s current participation in the Game Care Self-Exclusion Scheme operated by the peak body.

50. Under cross-examination, Mr Mower stated that he was aware that it was beneficial for problem gamblers to introduce a break in trading, and he agreed that it is considered to be helpful in the management of gambling problems. Mr Mower also agreed he was aware that there were additional risks for problem gambling where gaming was available after midnight. Mr Mower responded in a highly defensive manner when it was put to him in cross-examination that the reference to “eat, drink and recreate” in his first affidavit was really a reference to gaming. He stated in definite terms that he meant that phrase to convey the ability of patrons to come to the Toormina Hotel and socialise and watch big games on the large screen. Immediately after these answers, Mr Mower conceded that gaming was a significant part of the NCPH business at the Toormina Hotel and that part of his role was to increase profits across the board. He stated he had no control over the fact that an increase in profits would include an increase in gaming profits. He insisted that the extended trading hours were to provide patrons with “the ability to sit in the hotel and watch late-night sport”. That will depend, it would seem, on the starting time of fixtures; in cross-examination, it was put to Mr Mower that if a sports match involved, for example, a 90-minute football game that started promptly at midnight, then, with half-time breaks, plus (as often occurs) extra time and (as sometimes occurs) penalty shoot-outs, the broadcast match would not conclude within the extended trading period.

51. However, contrary to his affidavit evidence, when asked about whether he was aware of problem gamblers, he told the Tribunal that he was not personally aware of any but that NCPH receives documents from the local alliance so that if self-excluded a person comes from another venue, “we are advised” given Mr Mower’s role with regard to three venues within the Coffs Harbour LGA and his specific involvement with the Toormina Hotel. Mr Mower’s response runs counter to the image he portrayed in other parts of his evidence of being intimately aware of the patrons and operations of the Toormina Hotel; it also runs counter to the submissions of NCPH, which refer to Mr Mower being approached by two patrons to self-exclude.

52. Mr Mower conceded under cross-examination that the Toormina Hotel currently did not have a Gaming Plan of Management in place. Mr Mower explained that it was not required since there was no trade past midnight, “so we haven’t implemented one as such”. Mr Mower insisted that the Toormina Hotel implemented proper practices and had appropriate policies and procedures in place in any event, explaining that “we just don’t have a structured document”. Those policies and procedures were not exhibited or tendered into evidence.

53. Mr Mower was also asked about the extent of surveillance of patrons using the gaming machines. In their observations, the Authority’s inspectors had reported that staff regularly attended to patrons using the gaming machines, providing them with free food and free non-alcoholic drinks. There is some suggestion that the provision of free food and non-alcoholic beverages was a subtle means by which staff could monitor the condition of patrons using gaming machines and assess any risk indicators of problem or at-risk gamblers. However, Mr Mower’s evidence was that he considered surveillance of patrons in the gaming room, even where a single patron had been sitting for several hours at a gaming machine, was invasive of their privacy.

Gaming machines played after closing time

54. Among several other matters, Mr Mower, by his second affidavit, addresses the issue of gaming machines being played up to 15 minutes after the gaming room was meant to be closed. He states that the last patron to leave the gaming room from the CCTV footage exhibited to his affidavit was at 12:06 PM. He refers to game features, which are additional turns on the gaming machine for which no money is outlaid. He refers to inquiries he made with the gaming machine manufacturer about one of the machines, which, he says, supports the “features” explanation. The correspondence from the manufacturer does not support that explanation; it is equivocal but does suggest several reasons why the central monitoring system would detect further plays after midnight. I am not entirely satisfied with the explanations provided by Mr Mower in this regard. The gaming room should have been closed by midnight, not minutes later, and there is a real suggestion that gaming, albeit for a couple of minutes only, continued after midnight. The explanation and the CCTV footage Mr Mower provides do not sit comfortably with his further statement that the Toormina Hotel “starts a winding down procedure well prior to the closing hour, to ensure an orderly departure” of patrons.

Response to the COPS events

55. In his second affidavit, Mr Mower also addresses the numerous COPS events, which are detailed in Sergeant Saunder’s affidavit. Save for two incidents; I address Mr Mower’s responses to those matters below relative to consideration of the evidence of Sergeant Saunders.

Alcohol and Security Plan of Management and the Incidents

56. As noted above, Toormina Hotel had an Alcohol Plan of Management and Security Management Plan dated 8 February 2021 that was included in the s 58 Bundle. The Alcohol Plan of Management and Security Management Plan is a lengthy and comprehensive document that covers all aspects of the responsible management of the Toormina Hotel as licenced premises. The Tribunal has no criticism to make of the document; however, as will be seen below, the Tribunal heard evidence that raised significant concerns over whether the requirements set out in the Alcohol Plan of Management and Security Management Plan were, in fact, being adhered to by the management and staff of the Toormina Hotel.

57. In submissions, the Authority accepted that the two incidents described below are not determinative of the ETA application per se. However, the Authority submitted that the incidents demonstrated the Toormina Hotel's approach towards people approaching intoxication. That approach tells of significant problems with the enforcement and implementation of policies directed towards alcohol (and, by implication, gaming) harm management. I agree with that submission for the reasons set out in the following paragraphs.

14 May 2021 - intoxicated gambler incident

58. On 14 May 2021, police attended the Toormina Hotel and walked through the gaming area. At some point, one of the police noticed a patron at the gaming machines who appeared to be intoxicated. There was some controversy about whether the patron was showing signs of intoxication or whether he was suffering from another condition. The effect of illness, injury, disability or other conditions is a matter of judgment, as referred to by the Authority’s intoxication guideline.

59. The footage, however, is clear. The patron, who is described as “unfortunate” in submissions for NCPH, is manifestly unsteady and should not have been served liquor. When the police speak to the duty manager, they tell her that they believe the patron should not be at the premises. The duty manager replies to the police, “Definitely.”

60. In his affidavit, Mr Mower denied that the patron was intoxicated, but under cross-examination, having viewed the footage, Mr Mower conceded that recognised signs of intoxication were present. Mr Mower then stated that he could account for the duty manager’s response as being the result of his firm instruction to his staff that they were never to disagree with the police. I do not accept that evidence; the duty manager provided enthusiastic agreement with the assessment of the police; she was not merely seeking not to disagree. When asked whether he did not take intoxication seriously, Mr Mower answered, categorically, no. However, he also stated that he had not previously reviewed the footage at the hearing, had not asked his duty manager about the incident, and had not investigated the matter, including inquiring of his duty manager what she did.

61. It is open from reviewing the footage and from the concessions made, reasonably, by Mr Mower that the staff were not properly taking notice of a patron (moreover, a patron who may have special needs) who was reaching intoxication while gambling. I do not think the other possibility, that the managers of the Toormina Hotel considered this acceptable, is likely. However, the failure to properly monitor this patron is reflective of Mr Mower’s other evidence about wishing to respect the privacy of patrons while they attend the gaming room, both of which give the Tribunal significant cause for concern when considering the possible negative impacts of the ETA application.

18 June 2022 incidents in the Sports Bar and TAB Room

62. In cross-examination, Mr Mower was asked about clause 3.9 of that document, and in re-examination, he was taken to clause 4.7 and clause 3.9.

63. The relevant parts of clause 3.9 are extracted here:

“3.9 Crime Scene Preservation. Immediately after the Licensee (or delegate) become aware of, or reported to, any incident involving an act of violence causing any injury to a person on the premises, the following is adhered to:

a.    The Licensee (or delegate) will take all practical steps to preserve and keep intact the area where the act of violence occurred, retain all material and implements associated with the act of violence in accordance with the Crime Scene Prevention Guidelines issued by the NSW Police.

b.   The Licensee (or delegate) will make direct and personal contact with the Local Area Commander or his/her delegate and advise the Commander or delegate of the incident.

c.    The Licensee (or delegate) and / or staff will comply with any directions given by the Commander or delegate to preserve or keep in tact the area where the violence occurred.

…”

64. Clause 4.7 is extracted in full here:

“4.7 The Licensee (or delegate) will report all incidents of violence on or in the immediate vicinity of the Licenced Premises (50 metres) to Police.”

65. In re-examination, Mr Mower was asked about adherence to clause 3.9(b) of the Alcohol Plan of Management and Security Management Plan. He responded, “We make a judgment call”. That was a highly unsatisfactory answer; the clause is not a matter that requires any exercise of judgment. If a person is injured from an act of violence, in that case, the process must be followed as set out below, and manifestly with regard to an assault that occurred on 18 June 2022 while police were in attendance at the premises and dealing with another incident, that did not occur. In none of his three affidavits did Mr Mower explain why the scene of that incident was not preserved, nor still why the police were not alerted to that incident when they were, in fact, present at the time that it occurred.

66. Sergeant Saunders gives his account and exhibits a COPS record of his attendance with other police at the Toormina Hotel on the evening of Saturday, 18 June 2022. That evening, the Toormina Hotel was busy because of the day of the week, the fact that an NRL football game had been played at a nearby stadium and the attraction of live music on the premises. Neither Mr Mower nor the senior manager were on shift that evening. Mr Mower says, in his second affidavit, that he had attended the football match, went to the hotel for a couple of hours afterwards, and then handed it over to two duty managers. Sergeant Saunders says intoxicated behaviour was “allowed to continue unchecked”. Indeed, from observing the CCTV footage of the evening and the behaviour of particular patrons, that is an understatement.

67. Video footage of part of the evening of 18 June 2022 was played in the course of Mr Mower’s cross-examination. In his affidavit evidence, Mr Mower had asserted that he “disputed that the relevant person was intoxicated or that any offence was committed by the Hotel.” He also stated in his affidavit that he had elected to defend a criminal charge against him in the Local Court. It appeared for this reason that Mr Mower declined to answer questions put to him on the basis of self-incrimination, though a certificate under the Evidence Act, s 128 and the Civil and Administrative Tribunal Act, s 46 had been explained to him.

68. Mr Mower stated in his affidavit that Toormina Hotel staff had already cut off service to the most obviously affected patron by the time police attended the premises at 8:30 PM. The timing of when service was refused to the patron was a matter of some controversy; the incident register shows that service was refused to the patron at 8 PM; however, the video footage played at the hearing showed that at 8:06 PM, shortly after the patron was served with a mixed spirits drink and a beer – the footage showed at the hearing depicts this patron to be so severely intoxicated at this time that he lacked the physical coordination to handle payment for this drinks. Other footage revealed that just 15 minutes earlier, the same patron had been served two beers; the footage showed him to be clearly unsteady on his feet. It is clear from his behaviour (which may be described as uninhibited and exuberant) that the service of alcohol should have been refused to this patron before the 7:45 PM beer purchase and that arrangements should have been made for him to leave the premises safely. This did not occur.

69. Mr Mower was asked about his investigation of the incident. He stated that his investigation was set out in an incident report less than a page in length annexed to his second affidavit. That incident report, which Mr Mower says he prepared after watching the video footage, incorrectly stated that a bar attendant had radioed staff that service should be refused at 8 PM. This is a curious finding on any measure: service having been refused only after the patron had just paid for his drinks in circumstances where he was obviously intoxicated.

70. Meanwhile, the other patron, who was also clearly exhibiting signs of intoxication, purchased two mixed-spirited drinks at 7:59 PM and returned to the group where the first affected patron was. At 8:17 PM, another round of drinks arrives at the group table. At this time, a few children who seem related to the group come into the bar. By 8:19 PM, the manager has spoken to the first patron and his wife. However, by 8:20 PM, the other patron mounted a chair or bar stool as he tried to move his body to some live music. The duty manager speaks to him, and he sits down. Mr Mower agreed that the presence of children in this incident made it all the more important that proper practices were being followed. Further footage showed that at 8:21 PM, the first affected patron was still dancing in the bar – and then at 8:23 PM, Police arrived.

71. On the police body cam footage also played at the hearing, the duty manager tells Police of the first affected patron: “I thought he had left on the bus half an hour ago.” This cannot be a correct statement given that the duty manager is seen in the video footage speaking to the patron less than 10 minutes before the police arrive. Nor is her statement consistent with Mr Mower’s incident report.

65. The police bodycam footage also shows that the duty manager received a notification via a hand-held radio about another incident. According to the incident register, that incident involved a physical assault where a patron was punched by another patron and was knocked to the ground in the TAB or gaming room. Mr Mower’s responses under cross-examination about this incident were unsatisfactory: first, when he asked whether it was a violent incident, he replied, “It’s an incident in the register, it is, yes”; next, when he was asked why it was not reported to the police, he answered, “I don’t know how long they were there for”. I found these responses to be lacking in the candour expected, if not required, of a person who is the approved person for a liquor licensee.

66. Mr Mower’s responses concerning the application of clause 4.7 Alcohol Plan of Management and Security Management Plan were also unsatisfactory: he accepted that the matter should have been reported to the police. Still, he limited his response by stating that he accepted that the report to police should have occurred “based on that, yes”. Mr Mower then appeared to become confused about the requirements under clause 4.7 and the requirements with regard to crime scene preservation under clause 3.9. These matters were clarified on re-examination, but the overall effect of his evidence was that he did not have the level of knowledge of the Alcohol Plan of Management and Security Management Plan that would be expected of a person in a leadership position.

Mr Purcell

74. Adam Purcell provided three reports relevant to these proceedings;

1. Mr Purcell’s first report, dated 9 November 2021, contained his opinions and observations of the Toormina Hotel and nearby hospitality venues on Thursday, 4 November 2021, Friday, 5 November 2021 and Saturday, 6 November 2021. This report formed part of one of NCPH’s submissions to the Authority and formed part of the s 58 Bundle;

2. A second report, containing his observations of the Toormina Hotel and nearby hospitality venues on Friday, 29 July 2022, Saturday, 30 July 2022, and Sunday, 31 July 2022, was annexed to Mr Purcell's affidavit dated 9 August 2022.

3. Mr Purcell’s third report, dated 9 November 2022, is annexed to his affidavit made on the same date. Mr Purcell’s third report comments on the surveillance activities and findings of the Authority’s inspectors, including Mr Grewel, and the first affidavit of Sergeant Saunders.

75. At the hearing, senior counsel for the Authority cross-examined Mr Purcell.

76. Mr Purcell’s reports provide both observations and opinions. While not directly expressed as such, it is apparent throughout that Mr Purcell intended to give expert opinion evidence to the Tribunal. In Adamson at [13]-[15] on the question of admissibility and weight to be given to a report of similar ilk that had also been prepared by Mr Purcell, the Tribunal constituted by the same member as these proceedings observed that:

“The Tribunal is not bound by the rules of evidence; Civil and Administrative Tribunal Act 2013 (NSW), s 38(2) however, and despite Mr Purcell’s willingness to adhere to the expert witness code of conduct, there are several difficulties in accepting much of Mr Purcell’s opinions as expert evidence.

The rules of evidence are relevant to the operation of procedural fairness. Accepting as evidence the opinions of a person because they are said to possess particular skills, experience or qualifications requires specific matters to be addressed. Absent those specific matters, the weight which can be given to such material is small, particularly in matters, such as this, where all parties are legally represented, and the commercial impact of the decision may be significant; Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd [2017] NSWCATAP 185; BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129.

The evidence tendered must come from an agreed or demonstrated field of specialised knowledge and there must be an aspect of that field in which the witness can be said to be an expert by dint of his or her specialised training, study or experience which, when applied to the observations made (and any assumptions given) brings forth an opinion based on a proper foundation; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]”

77. The Authority submitted that the basis of any expertise of Mr Purcell was questionable. In Adamson at [17], having reviewed Mr Purcell’s curriculum vitae (which is relevantly the same as the document attached to his reports), I concluded, with regard to his evidence, that:

“It is unclear from his report and his curriculum vitae what expertise in a recognised area of specialised knowledge Mr Purcell was said to have. It was even more unclear what specialised area of knowledge was said to be the basis for the opinions contained in his report.”

78. Accordingly, in Adamson at [19]-[24], I accepted that Mr Purcell was an experienced former police officer with knowledge of and experience in enforcing licencing laws. The Tribunal was assisted by Mr Purcell’s observations of his attendance on the premises and of patrons leaving the premises and migrating to another venue. However, I gave limited weight to his opinions and no weight at all to opinions that did not appear to be related to his experience or specialised knowledge or where they strayed beyond any known area of expertise he professed to have. I have adopted the same approach to Mr Purcell’s evidence in these proceedings.

79. At each of his six attendances at the Toormina Hotel, Mr Purcell saw no evidence of intoxication, poor management of the hotel, breaches of responsible service of liquor, no one he would “connect with an outlaw motorcycle club”, no evidence of money laundering practices, no evidence of the indicators of problem gambling. Mr Purcell observed one attendance by Police on Saturday, 30 July 2022, at which there were no breaches detected. In a similar vein to the observations of the Authority’s inspectors, Mr Purcell noted that patrons of the Toormina Hotel appeared familiar with each other, and it was clear from his observations that the Toormina Hotel was an important social venue for members of the local community.

80. In cross-examination, Mr Purcell stated that he preferred to rely on COPS events and BOSCAR data since these were more factual than the subjective statements made by objectors to the ETA application.

81. Mr Purcell did concede that noise complaints made by local residents may have some validity, and the fact that he did not observe significant noise on the nights he was observing the Toormina Hotel did not mean these concerns were baseless. In fact, Mr Purcell observed at least a short public disturbance one night when a group of people were turned away from the venue. Mr Purcell’s observations that there are noise disturbances outside the Toromina Hotel from time to time are consistent with observations by the Authority’s inspectors, some of the video footage shown to Mr Mower, some of the COPS events and some of the incident register material. Accordingly, there was ample evidence before the Tribunal to demonstrate that there are noise disturbances from time to time as a result of the Toormina Hotel’s present operations. This, in turn, supports some of the grounds of complaint expressed by members of the community, and all of this is relevant to the considerations under the Liquor Act, s 49(8)(b).

82. In written submissions, Mr Purcell’s role as a former police commander was highlighted, presumably to impress upon the Tribunal that his observations should carry significant weight when compared to, for example, that of Sergeant Saunders and the Authority’s inspectors. As Mr Purcell fairly conceded in cross-examination, his attendance at the Toormina Hotel was a snapshot that cannot go to prove the breaches and harms do not arise at any time. The observations of Mr Purcell are more favourable to the Toormina Hotel, but not materially so, than the observations of Mr Grewel and the other inspectors, which may also be considered to be snapshots of the running of the Toormina Hotel. There is no question of credit concerning these witnesses, and I accept their evidence as far as it goes. However, Sergeant Saunders had demonstrably more contact with and had been able to observe over a more extended period the way in which the Toormina Hotel is run relevant to its community. His evidence showed a greater depth of experience in policing the local community than either Mr Purcell or the Authority’s inspectors. Accordingly, where the evidence diverges on those topics, I have preferred the evidence of Sergeant Saunders over Mr Purcell and the Authority.

83. The most pertinent observations provided by Mr Purcell concern the migration of patrons attending the gaming room of the Toormina Hotel before closing to other venues with later trading hours. There are two venues: the Sawtell Hotel, which closes at 1 AM, and the Moonee Beach Hotel, which closes at 4 AM. Mr Purcell stated in his report that the Sawtell Hotel was about a seven-minute drive from the Toormina Hotel, whereas the Moonee Beach Hotel was a 24-minute drive.

84. There are some limitations on the observations and analysis provided by Mr Purcell concerning patron migration. In cross-examination, Mr Purcell explained that he did not compare or analyse the proportion of patrons attending the gaming room by reference to the number of patrons attending the Toormina Hotel each evening, nor did he analyse a pattern of repeat attendance of patrons so the numbers he recorded do not show whether the patrons migrating each evening are the same people each night or completely different people or some combination of new and repeat patrons.

85. Further, on cross-examination concerning his tabulated observations, Mr Purcell conceded that it was not the case that the patrons recorded as having migrated to either the Sawtell Hotel or the Moonee Beach Hotel were drawn only from the group of patrons Mr Purcell had observed in the Toormina Hotel’s gaming room at around 11 PM each evening. His evidence was that he counted patrons in the gaming room of the other hotels who had, at some stage, migrated from the Toormina Hotel.

86. For his first report, Mr Purcell travelled to the Sawtell Hotel first and made observations at those premises between 12:15 and 12:30 AM. He then travelled to the Moonee Beach Hotel and made observations between about 12:45 and 1 AM:

1. At about 11 PM on Thursday, 4 November 2021, six patrons were in the Toormina Hotel's gaming room. When Mr Purcell travelled to the Sawtell Hotel, he saw no Toormina Hotel patrons. When he travelled to the Moonee Beach Hotel, he saw five former Toormina Hotel patrons in the gaming room there.

2. At about 11 PM on Friday, 5 November 2021, fourteen patrons were in the gaming room of the Toormina Hotel. When Mr Purcell travelled to the Sawtell Hotel, he saw two former Toormina Hotel patrons. When he travelled to the Moonee Beach Hotel, he saw one former Toormina Hotel patron in the gaming room there. As noted above, Mr Purcell was unable to say whether each of these patrons was part of the group of fourteen present in the Toormina Hotel gaming room at about 11 PM or whether they had migrated at some other time.

3. At about 11 PM on Saturday, 6 November 2021, Mr Purcell observed nine patrons in the gaming room of the Toormina Hotel. When he travelled to the Sawtell Hotel, he saw two former Toormina Hotel patrons. When he travelled to the Moonee Beach Hotel, he saw four former Toormina Hotel patrons in the gaming room there.

87. For his second report, Mr Purcell conducted a similar set of observations at for the evenings of 29 – 31 July 2022. Those observations were:

1. At about 11 PM on Friday, 29 July 2022, 26 patrons were in the gaming room of the Toormina Hotel. Mr Purcell then travelled to the Sawtell Hotel and observed one former patron of the Toormina Hotel in the gaming room. He then travelled to the Moonee Beach Hotel and observed two former Toormina Hotel patrons in the Moonee Beach Hotel gaming room.

2. At about 11 PM on Saturday, 30 July 2022, Mr Purcell observed eight patrons in the gaming room of the Toormina Hotel. Two patrons from the Toormina Hotel (though not necessarily any of the eight he observed at about 11 PM) were observed at the Sawtell Hotel, and Mr Purcell saw three at the gaming room of the Moonee Beach Hotel.

3. The gaming room of the Toormina Hotel closed at about 10 PM on Sunday, 31 July 2022; 7 patrons were observed there at 9 PM. Mr Purcell did not observe any patrons attending the Toormina Hotel that evening who then migrated to either the Sawtell Hotel or Moonee Beach Hotel.

4. Mr Purcell states that on Sunday evening, 31 July 2022, he observed five patrons in the Sawtell Hotel’s gaming room, whom he had observed attending the Toormina Hotel on “prior nights”. He concluded that these patrons “clearly only attended Sawtell in preference on the Sunday as it closes two hours later than Toormina”. I do not consider Mr Purcell’s conclusion on this point to be justified since he does not report that he actually approached and spoke to those people to determine what, in fact, were their reasons for attending the Sawtell Hotel that evening. Mr Purcell also concluded that “clearly, the low patron numbers on Sunday night reduced the likelihood of patrons venturing to either alternate hotel”.

88. Overall, Mr Purcell’s observations of patron migration showed that few patrons from the Toormina Hotel migrated to other venues after closing time. However, the absolute number of patrons cannot be determined due to the limitations of Mr Purcell’s data, as described above. On any account, the number of patrons he observed migrating to other venues was not significant. It did not support NCPH’s contentions that there was a demand for the Toormina Hotel to stay open late at night for gaming, nor that there was a significant protective effect in doing so.

Mr Barrett

89. NCPH read an affidavit of Leigh Barrett dated 12 August 2022, which annexed a report prepared by Mr Barrett. At the hearing, senior counsel for the Authority cross-examined Mr Barrett.

90. Mr Barrett was the President of the Australian National Association for Gambling Studies and the author of the inaugural Victorian Responsible Gambling Code of Conduct. Since 2009, Mr Barret has worked as an independent consultant on gambling care, among other matters. By his report, Mr Barrett seeks to provide expert opinion evidence to the Tribunal. I refer again to my observations in Adamson at [13]-[15] and [17] on the question of admissibility of expert evidence in the Tribunal set out above concerning Mr Purcell’s evidence. Like Mr Purcell, it is not apparent that Mr Barrett has expertise in a recognised area of specialised knowledge.

91. I accept, however, that Mr Barrett has a lengthy history of work experience in the gambling and regulatory sector, particularly in Victoria, and that he has some academic qualifications in the social sciences. Mr Barrett also clearly reviews applicable published research (though the Authority contends that the review is not complete, as I detail below). The Tribunal can take account of those aspects of his report that provide a survey of research.

92. The central opinion expressed in Mr Barrett’s report is in paragraph 33, which he expands upon further in his report. At paragraph 33, Mr Barrett opines that it would be “far preferable” for patrons who are likely to migrate to another venue to instead remain at the Toormina Hotel where they can be appropriately monitored and supervised. Mr Barrett referred specifically to Guideline 16 and other academic research in support of that opinion, as well as the findings of the Tribunal in Bun. I accept that monitoring or supervision of patrons playing gaming machines is desirable, but here, the evidence suggests that monitoring or supervision does not occur effectively, for example, the incident of 14 May 2021 and Mr Mower’s evidence that he would be reluctant to encroach on the privacy of patrons in the gaming room cause. This lack of supervision also undermines Mr Barrett’s opinion that problem and at-risk gamblers would prefer larger gaming areas that provide a measure of anonymity and privacy.

93. In cross-examination, Mr Barrett conceded that he was unable to determine the proportion of patrons who migrated from the Toormina Hotel to other venues and that the migration of patrons in this instance might have been less than the 75% figure found in Bun. Mr Barrett stated that he made a judgment that migration after 2 AM would be less likely.

94. Mr Barrett also agreed under cross-examination that the closure of a venue may, in some instances, allow for gamblers to take a break. He stated, however, that in other cases, it simply prompted migration to another venue. I accept that evidence; however, in this case, the observations on the migration of patrons from the Toormina Hotel are not conclusive, and the observed number of patrons appearing at another venue after the Toormina Hotel closed is insignificant.

95. Mr Barrett also commented on the sufficiency of the proposed gaming plan of management. I have no difficulty concluding that the gaming plan of management is adequate. The difficulty faced by the Tribunal is that it appears that the plans of management currently in place are not well adhered to, and it is reasonable to infer that the proposed plan may be regarded similarly.

96. The Authority submitted that Mr Barrett’s report was flawed in several respects and should be given no weight in the Tribunal’s consideration. In particular, it was submitted that he:

1. Made conclusions without information regarding the plans of management;

2. Did not personally attend the Toormina Hotel;

3. Did not observe or analyse the habits of customers;

4. Did not review the evidence concerning the incidents that took place on 14 May 2021 and 18 June 2022 and consequently did not review the Toormina Hotel’s response to those incidents;

5. Conceded that he had not weighed into his opinion the research that the hours after midnight are more problematic for at-risk and problem gamblers, though he accepted that research did exist;

6. Was an advocate for NCPH;

7. Did not include all facts and assumptions of fact on which he based his opinions; and

8. Had engaged in direct communications with Mr Mower without disclosing this in his report.

97. I accept that many of the criticisms of Mr Barrett’s report as enumerated by the Authority were established. I nonetheless considered that Mr Barrett, like Mr Purcell, was trying to assist the Tribunal and was not simply an advocate for NCPH. However, for the reasons stated above, Mr Barrett’s evidence has limited weight because the data on which he relies regarding migration is unreliable, and he was not instructed to consider the incidents that took place at the Toormina Hotel and the adherence to the current plans of management.

Further evidence relied on by the Authority

Affidavit of Ms Corazza

98. Monica Corazza is an in-house solicitor employed by the Authority. The Authority read an affidavit of Ms Corazza dated 7 October 2022 and tendered a bundle of materials exhibited to that affidavit.

99. In addition to the updated statistical information that I set out above, Ms Corazza exhibits correspondence received from Lifeline North Coast stating that it is “not in favour” of NCPH’s application for an ETA. That correspondence was tendered because, in a similar vein to its submission concerning the CHLALC, NCPH had suggested in its evidence that Lifeline’s lack of response to a consultation might be regarded as a support of the ETA or, at the very least, a lack of opposition to it. The correspondence explains that some administrative error occurred within Lifeline, which caused it not to object, and that it does not support the ETA on the basis of perceived gambling harm that might arise.

Affidavit of Ms Steiner

100. Emily Steiner's affidavit dated 20 October 2022. Ms Steiner is a solicitor seconded to the Authority from private practice. She annexes to her affidavit a harm minimisation and community impact data report for the suburb of Toormina as of 12 October 2022 from the Bureau of Crime Statistics and Research (BOSCAR), which affidavit showed that:

1. Crime rates in the Coffs Harbour LGA were consistent with the State generally and were stable; and

2. Hotspot maps for the suburb of Toormina, depicting incidents of domestic assault, non-domestic assault, alcohol-related assault and malicious damage, showed the location of the Toormina Hotel to be within, in the case of domestic assault only, immediately adjacent to, crime hotspots.

101. With regard to the evidence of the Hotspot maps, given the location of the Toormina Hotel, close to the town centre of Toormina, it cannot be that the Toormina Hotel is solely or even mostly responsible for the incidence of crime relative to its location. However, the fact that the Toormina Hotel is located in an area that is a hotspot for various kinds of criminal activity of the kind noted means that the Tribunal should take great care in arriving at the requisite level of satisfaction concerning the impact extended trading might have on the community.

Affidavit of Mr Grewel

102. Gurneet Grewel is a Senior Investigator in the Investigations and Enforcement Unit of the Authority. Prior to his role with the Authority, Mr Grewel was a police officer with the NSW Police Force. The Authority read an affidavit of Mr Grewel dated 13 October 2022 and tendered a bundle of materials exhibited to that affidavit.

103. The material exhibited to Mr Grewel’s affidavit included surveillance reports of two other inspectors from the ILGA, Mr Gomes and Mr Coombes. Those reports were created when Mr Grewel and the two other ILGA inspectors attended and conducted covert surveillance of the Toormina Hotel and its surroundings in the evenings of 9, 10, and 11 September 2022. The surveillance logs and reports depicted the Toormina Hotel as being busiest on Friday and Saturday evenings, with a peak of over 200 patrons over two hours around the time the bistro was serving evening meals.

104. During the cross-examination by NCPH's counsel, Mr Grewel acknowledged that his evidence was a collective reflection of his observations, as well as those of Mr Coombes and Mr Gomes. This collaborative approach, while not ideal, was further supported by the availability of the logs, statements, and instant messages exchanged between the three inspectors, all of which were accessible to the Tribunal.

105. Mr Grewel’s evidence, when combined with the surveillance logs, provides a comprehensive view of the Toormina Hotel. It highlights the common challenges found in many hotels across the State, such as escalating levels of intoxication, inconsistent security measures, noise disturbances, instances of aggression, and intense gambling sessions. However, this evidence does not substantiate the claim that the Toormina Hotel is being mismanaged or requires additional conditions. Mr Grewel’s evidence also depicted the Toormina Hotel as an integral place to its community, where the staff knew patrons by name and where groups of friends and families attended to socialise, dine and be entertained.

106. Two key aspects of Mr Grewel’s evidence are particularly relevant to the issues at hand and could significantly impact the Tribunal's decision.

1. The first was that the gaming management system for the premises had been found to have recorded the continuation of gaming machine use after trading hours had ceased. The source material for that evidence was not before the Tribunal. Under cross-examination, counsel for NCPH suggested to Mr Grewel that a player who started gaming before midnight might have been playing an electronic gaming machine with a features option that would automatically continue after midnight. Mr Grewel’s response was definite on this point: this was not a matter of an automatic feature; the gaming records produced by the Authority of the Central Monitoring System for the Toormina Hotel showed the number of times a player manually pressed the gaming machine button.

2. The second was the almost total absence of patrons of the Toormina Hotel who, after it had closed, then travelled to another licenced venue. This is despite the Authority’s inspectors following the vehicles of patrons leaving the gaming room of the Toormina Hotel by car in the hour before closing time. Mr Grewel’s evidence was that he and the other inspectors had observed only one couple, who appeared to be aged in their 60s, migrate from the Toormina Hotel to the Sawtell Hotel at around 12:30 AM to continue gambling after the Toormina Hotel closed on Sunday evening. The Authority’s inspectors observed those same patrons attending the Toormina Hotel on Friday and Saturday evenings, gambling at the Toormina Hotel until the close of business at midnight on each of those nights.

Affidavit of Sergeant Saunders

107. The Authority read two affidavits of Sergeant Saunders dated 19 October 2022 and 8 December 2022 and tendered a bundle of documents exhibited to each affidavit. At the hearing, Sergeant Saunders was cross-examined by counsel for the NCPH.

108. Sergeant Saunders has been a police officer with 33 years of service and has been the licensing sergeant for the Coffs Clarence Police District since 2020. It was Sergeant Saunder’s evidence that, in his role as licencing sergeant, he oversees 334 venues, including hotels, clubs, restaurants, packaged liquor outlets, small bars and producer outlets such as distilleries, breweries and wineries. He presented as a witness with extensive knowledge of the community in the Coffs Harbour LGA and the applicable licencing regime. As noted above, having regard to the depth of his knowledge and experience in the local community, I have preferred his evidence on topics including the way in which the Toormina Hotel is run relevant to its community, policing issues in the local community over that of Mr Purcell and the Authority’s inspectors.

109. Sergeant Saunders prepared the NSW Police Force submission, which opposed NCPH’s application for an ETA.

110. At the hearing, Sergeant Saunders' further evidence, including an affidavit in which he opposed the ETA application, was based not only on his own observations but also on records maintained by the Toormina Hotel and the reports maintained by the COPS system. Specifically, the materials exhibited in Sergeant Saunders’ first affidavit included various NSW Police Force COPS reports of incidents that have been reported to have occurred at the Toormina Hotel for the nearly 14-month period between 8 August 2021 and 1 October 2022. The materials exhibited in his second affidavit included various entries in the Toormina Hotel’s incident register, which recorded incidents of patron violence that should have been, but were not, reported to the police.

111. In his first affidavit, Sergeant Saunders addresses some of NCPH’s responses to the NSW Police Force submission. In particular, it was Sergeant Saunder’s evidence that the COPS records of incidents that involved assault, including domestic assault, were not consistent with NCPH’s assertion that it had introduced practices to ensure that the operation of the Toormina Hotel would not adversely affect the quiet and good order of the neighbourhood or increase rates of crime or anti-social behaviour. In fact, according to the COPS records, there were:

1. Seven incidents of assault, including domestic assault, which occurred at the Toormina Hotel, including one incident in the gaming room and three incidents either at or just outside the premises.

2. Five incidents of theft: in some cases, liquor and cash were stolen from the Toormina Hotel; in others, patrons attending the premises suffered from theft. Mr Mower states these are minor and that the Hotel’s bottle shop was the main target. In this regard, Mr Mower’s evidence fails to appreciate that the presence of thieves at the hotel is inherently dangerous to the public, and the number of incidents suggests that the Hotel is a regular target for such offences.

3. Three incidents of domestic assault occurred at residential premises after the accused person had been drinking at the Toormina Hotel.

4. Three incidents involving minors: one where young persons accessed the premises and caused damage; a second where minors were not supervised; and a third incident where a minor was allowed by an adult to consume alcohol. In this regard, I note that much of NCPH’s evidence and submissions tended to suggest that the patronage of the Toormina Hotel was older and that age, in some unsubstantiated way, was protective against drinking and gambling-related harms. These three incidents suggest that, to the contrary, there may have been a lack of proper attention to the treatment of minors and youth crime at the Toormina Hotel;

5. One incident where a group of patrons caused damage to a staff member’s car;

6. One incident where a group of intoxicated persons were denied entry and then engaged in a range of offensive behaviour.

7. One self-harm incident; however, from a review of the COPS report, it is not clear that the unfortunate facts of that incident had anything to do with the Toormina Hotel, which was closed at the time.

112. Mr Purcell comments on this material in his third report. He says he would consider only four events as being matters of concern without specifying why or which matters he is referring to.

113. Sergeant Saunders also stated that he was concerned about the absence of senior managers at the Toormina Hotel during peak or high-risk trading periods. It was Sergeant Saunders’ unchallenged evidence that the Police had inspected the Toormina Hotel over 75 times in the above period, of which at least 44 inspections took place at high-risk periods (Friday or Saturday nights and public holidays). In the course of those inspections, Mr Mower, the approved manager for the Toormina Hotel, appeared never to be present, and the senior manager, Mr Downe, was last identified in April 2022. Sergeant Saunder’s concern is reflected in the incidents that occurred on 18 June 2022 and the serious assault that took place on 14 September 2022, which are described below.

114. In his second affidavit dated 8 December 2022, Sergeant Saunders clarified some matters in his first affidavit and a further bundle of exhibited documents, which includes various entries from the incident log book kept by NCPH for the Toormina Hotel.

115. It was Sergeant Saunders' evidence that in reviewing the incident log book, he noticed sixteen incidents involving violence occurring at the Toormina Hotel in the period between 3 October 2021 and 14 September 2022 that had not been reported to NSW Police. The failure to report those incidents was, according to Sergeant Saunders, in breach of the Alcohol Plan of Management and Security Management Plan for the Toormina Hotel in place at the time, which requires the licensee to preserve the area where the incident occurred and to make “direct and personal contact with the Local Area Commander or his/her delegate and advice the Commander or delegate of the incident’. In reviewing that material, it is apparent that:

1. Four of those incidents occurred in the gaming room after 11 PM,

2. Several of the incidents involved assaults of, or aggression towards, staff by patrons.

3. One incident, where a man was punched to the ground by another patron in the gaming room, which also occurred on 18 June 2022, took place while Sergeant Saunders was in attendance at the premises but was not reported to him by the manager. In the police bodycam footage tendered as an exhibit by the Authority and played at the hearing, it is clear that the duty manager received notification of this incident via a hand-held radio but did not say anything about it to the attending police. With regard to the manner of her response, I have concluded it was improbable that the duty manager did not know that a violent incident had occurred or was occurring when she received that notification but that she elected not to inform the police who might have assisted her staff and who could have ensured the safety of patrons at the venue. In cross-examination, Sergeant Saunders said the duty manager never told him of the incident despite attending the premises for a further eight or nine minutes.

116. Mr Purcell did not give evidence that he had inspected the Toormina Hotel’s incident register, and his third report had been prepared before Sergeant Saunders’ second affidavit. However, tellingly, Mr Purcell does comment on the practice of reporting incidents to police in the following terms, which accord with the underlying concerns Sergeant Saunders raises about adherence to the Alcohol Plan of Management in his second affidavit:

“… There is a temptation within the industry to resist reporting these types of issues and minimise contact with Police. This is both irresponsible and detrimental to the community as often consequently other issues occur impacting on the neighbourhood if patrons are not brought to account for their actions.”

117. Sergeant Saunders also identified conduct that he said gave rise to a breach of the Gaming Machine Regulation 2019, cl 8, that occurred at the Toormina Hotel on 2 December 2022. The incident occurred when Sergeant Saunders attended the premises at 11 PM that night and found all exit and entry points to the Toormina Hotel locked except those requiring patrons to use the gaming room as a thoroughfare. Gaming Machine Regulation 2019, cl 8 provides that ‘patrons must not be compelled to pass through the gaming room in order to enter or leave the hotel or gain access to another part of the hotel’. In cross-examination, it was put to Sergeant Saunders that this single entry point may have been unintentional; Sergeant Saunders correctly stated that whether the Toormina Hotel intended this breach to breach was not relevant to whether it had, in fact, breached the regulations. When this issue was put to Mr Mower, his response was enigmatic and therefore unhelpful: “he’s raised that”.

Findings

Consideration of the overall social impact of the proposed extended trading authorisation

118. The Tribunal on review must not grant an application unless it is satisfied that the overall social impact of the ETA will not be detrimental to the well-being of the local or broader community; Liquor Act, s 48(5) having regard to the material set out in the subparagraphs to that section.

119. As the Tribunal in Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 at [73] observed:

“… the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental.” [emphasis added]

120. The term “overall social impact” was considered extensively in Kallin at [20], where the Tribunal, referring to Macedon Ranges Shire Council, stated:

“… the meaning of “overall social impact” will be influenced by the subject matter and purpose of the Liquor Act. Clearly, the Act is concerned with the minimisation of harm associated with misuse and abuse of liquor (including violence and other anti-social behaviour), as well as ensuring that the sale, supply and consumption of liquor contributes to, and does not detract from “the amenity of community life” (s 3(2)). Therefore in my view, these factors, where relevant, will inform the meaning of “overall social impact”. The Act also refers to other social impacts such as the balanced development of the liquor industry and of related industries such as the live music, entertainment, tourism and hospitality industries.”

121. When considering the overall social impact, the Tribunal must take into account both positive and negative aspects; Smith at [30]. A similar approach was taken by Kirby J in Ballesty at [149] in considering an appeal against an extension of gaming machine activity in a registered club:

“Where there was a significant number of machines in the local community, or a significant part of the local community, and where the incidence of problem gambling was already high, or the projected increase likely to be major, these matters would obviously be relevant. They would alter the character of the disbenefit, clearly making it worse. However, that disbenefit, with that character, would still have to be compared with the social and economic benefits to the local community. Did the disbenefit, in that aggravated form, so outweigh the benefits, that the application should be refused?”

122. The approach set out by Kirby J on Ballesty and by the Tribunal in Smith are aligned. I respectfully adopt that approach in considering whether the disbenefits outweigh the benefits identified as arising from the proposed ETA in this case.

123. In considering each of the above authorities, the Tribunal in Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2022] NSWCATAD 255 at [153] observed:

“Any extension of trading hours of a venue which serves alcohol and has EGMs [electronic gaming machines] will self-evidently lead to a greater number of people potentially consuming more alcohol and spending longer periods gambling. As such, any approved ETA will potentially lead to increased risk of social harms such as alcohol related crime and problem gambling and be detrimental to the well-being of the local or broader community. However, the Tribunal is not dealing with potential consequences. As this Tribunal has stated, it is necessary to identify objective facts and any available inferences so as to make factual findings as to the causation of social impacts …” [citations omitted]

124. In considering the overall social impact of the ETA application, I have also had some, though not extensive, regard to Guideline 6 and, to a lesser extent, Guideline 16.

Benefits of the ETA application

125. NCHP submitted that the benefits of the service provided to the community by the extension of trading hours were not in doubt. Specifically, the submission pointed to the following benefits:

1. To the local economy in terms of employment, service and “good supply” to the hotel;

2. Increased recreation benefits to patrons who chose to recreate by using gaming machines, the lounge facility and late-night sports telecasts;

3. To the local community by being able to have functions that lasted past midnight;

4. Providing gambling in a safe and supervised environment; and

5. To the local community by having access to a late trading venue, though the fact that the Sawtell Hotel was a mere seven minutes drive away was not recognised in this part of the submission.

126. I disagree with this submission based on the observations of patronage numbers provided, including the number of migrating patrons, the evidence that the Toormina Hotel has failed to follow its current Alcohol Plan of Management in not reporting all violence to the Police and, at least in one incident, by failing to secure a possible crime scene in the gaming area to allow Police to investigate. I do not consider there will be any material boost to the local economy aside from, possibly an increase in gaming revenue for NCPH from the Toormina Hotel.

127. I have stated above that the statistics which show that the number of licenced venues in the area of the Toormina Hotel is substantially less than the State average does not automatically lead to a finding that the needs of the community are not being met. Aside from the petition and the 12 letters, to which only some weight has been given for the reasons stated above, there was very little evidence of any community need and certainly no evidence of any benefit to the community in the Toormina Hotel trading up to 2 AM every night between Monday and Saturday and up to midnight on Sundays.

128. The assertions concerning late-night or international sporting fixtures were not supported by any evidence of substance. The assertions regarding late-night trivia rose, at their highest, to one evening per week. So, too, Mr Mower’s evidence that NCPH had lost business for holding particular events because of its standard closing time. Had NCPH intended that its application was only to meet a need for these particular events or instances, the ETA application could have been made in that limited manner as contemplated by the Liquor Act, s 49(b) and s 49(c). However, the ETA application was not for limited or one-off events; it sought later trading hours for every night of the week.

126. In its written submissions, it stated that there would be other public benefits, including:

1. A more progressive dispersal of patrons, further reducing any potential for disturbance on leaving. In the original submissions, this would be said to be facilitated by ceasing sales of all high-risk drinks after midnight, limiting drinks sold per patron and providing background music only after midnight. Later, NCPH contended it would not be serving alcohol at all during the extended trading hours. I agree with this submission and have concluded that this would further assist the progressive dispersal that NCPH submits would occur if it was granted an ETA.

2. Reducing the need for patrons to travel on “heavily trafficked local roads late at night” to access other venues. As I have noted above, Mr. Purcell's migration observations show that the number of patrons migrating to other venues is not, by any measure, significant. Further, there was no evidence of what constituted heavily trafficked local roads, and to that extent, accordingly, I reject that submission.

3. Significant additional employment for new and existing staff. However, NCHP did not attempt to reconcile this submission with its other submission that the net number of hours it would operate would actually reduce by 10 hours per week.

4. Enhancing the Toormina Hotel's capacity to provide sponsorship to the local community. There was no direct evidence as to how this might arise or what the extent of this enhancement was likely to be. I note that some of the 12 letters in support refer to sponsorship already being received by the Toormina Hotel.

5. Increasing the choice of venues for members of the local community. Had the migration of patrons been more significant, this would have been a more persuasive submission. However, the observations of the Authority’s inspectors and Mr Purcell are that the bulk of trade occurs on Friday and Saturday evenings and that the patronage of the Toormina Hotel drops off sharply after the bistro closes. Hence, the increased choice of venues only applies to those members of the community who wish to access gaming late into the night, which, from the observations of Mr Purcel, represents at most five people on any one evening.

6. Allowing the staff of the hotel to monitor patrons for signs of possible intoxication and problem gambling “instead of losing the benefit of those observations when the Hotel is presently required to shut at mid-night, and patrons move on to other venues”. Once again, the number of patrons who migrated to other venues was insignificant. The Authority’s inspectors followed several patrons who headed to residential areas. The conclusions in Bun are not controversial, but they cannot be said to apply to the facts of this case.

130. NCPH also submitted that the ETA reduced the Toormina Hotel's overall trading hours by ten hours per week because it would not be able to trade between 5 AM and 9 AM, Monday through Saturday. It may be appreciated that the hours of 5 AM and 9 AM are not considered popular times for liquor consumption or other hotel activities, and thus, I consider the impact of such a change, positive or negative, to be minimal.

131. The impression gained from the evidence was that the ETA was meant to facilitate better or more convenient access to gaming machines for patrons of the Toormina Hotel. In that regard, considering the benefits of the ETA application on that basis, the patron migration evidence was relevant. That evidence, tendered by both parties, shows that the number of patrons migrating to other venues after the Toormina Hotel was closed is minimal. At most, five patrons seen by Mr Purcell in the gaming room on Thursday, 4 November 2021, were later seen at the Moonee Beach Hotel (which is authorised to trade until 4 AM). Accordingly, the evidence to support a finding that the ETA would facilitate better or more convenient access to gaming machines by patrons of the Toormina Hotel was not persuasive.

Negative impacts of the ETA application

132. NCPH submitted that the evidence of positive effects far outweighs the evidence of negative impacts. Its submissions presented a table considering issues such as amenities, local crime statistics and demographics, patron characteristics, venue density, gambling intensity, gambling harms and problem gambling and effectiveness of gaming mitigation measures. Much of the material submitted in support of the ETA was based on opinion evidence from Mr Purcell, to which I have not given any substantial weight considering the matters set out in paragraphs 77 to 83 above.

133. NCPH also submitted that there was no evidence of problem gambling caused by the Toormina Hotel. While I accept that submission, it misses the point of the Tribunal’s task, which is to consider whether an extension of trading hours will facilitate access to gaming machines during the hours after midnight, a recognised risk period for the problem and at-risk gamblers, will have a negative impact on the local or broader community. In that regard, the socio-economic position of the community of Toormina, as well as evidence from the organisations operating in that community responsible for helping people experiencing the negative impacts of gambling, are of particular importance. That evidence, which I accept, is that increased access to gambling late at night is likely to see an increase in the number of problems and at-risk gamblers and a consequent increase in the common negative effects of gambling on individuals, families and the local community. In my view, this evidence directly counters NCPH’s submission that there is no evidence to support a reasonable inference that the additional hours will increase problem gambling in the area.

134. NCPH also submitted that there was no evidence of problem gambling at the Toormina Hotel. It points to Mr Mower's evidence that two patrons approached him to self-exclude. Mr Mower’s evidence is not clear on how many patrons have sought self-exclusion. My impression of Mr Mower’s evidence concerning problem gambling is that he was very unwilling to conduct effective surveillance of the gaming room, considering, according to his evidence under cross-examination, such surveillance to be an invasion of privacy and there were insufficient inquiries made into whether patrons at the Toormina Hotel were having problems with gambling or were at-risk gamblers. In the absence of a real intention to check on patrons, the service of free food and non-alcoholic drinks to patrons in the gaming room, an advertised feature of the gaming room, may be seen as a means by which patrons were encouraged to stay and gamble for more extended periods rather than the practice forming any part of a harm minimisation strategy.

135. NCPH submitted that, even if a problem gambler used the gaming machines at the Toormina Hotel, that did not necessarily equate to an adverse social impact on the local or broader community. I reject that submission; while problem gambling has serious personal and financial consequences for the gambler, it is an addiction that may be particularly consequential to a gambler’s family, children and, in some cases, their friends and employers because of the financial aspect of the addiction.

136. I have concluded that the following matters are factors that indicate that there may be negative impacts on the community by reason of the fact that, if permitted, the extended trading hours will necessarily allow more patrons to consume alcohol (on Sundays) and gamble for more prolonged periods across each day of the week:

1. The statistical data of the socio-economic indicators for the local area shows that households in Toormina are among the most socio-economically disadvantaged in New South Wales, and their position has declined over the last ten years.

2. The crime statistics showed that the rate of reported alcohol-related domestic assault and malicious damages offences in Toormina was materially higher than the rate for inner regional areas or the State as a whole and higher than the Coffs Harbour LGA.

3. The Authority's finding on this issue is soundly based on reports it collates concerning the intensity of gaming at the Toormina Hotel.

4. The Toormina Hotel is located in an area designated as being a Band 2 or modest risk for gambling harm. Further, it is adjacent to a Band 3 area – being an area at highest risk for gambling-related harms under the Gaming Machines Act, 2001 (NSW). The evidence, including the petition submitted by NCPH, showed that the Toormina Hotel’s patronage includes areas adjacent to Toormina. Accordingly, the designation of the adjacent area is a relevant consideration. NCPH submits that the Toormina Hotel is separated from the Band 3 area by Boambee Creek about 1.5 km to the north and that there are already late-night trading gambling venues in the Band 3 area. It is illogical in a material respect to argue that the existence of late-night gambling venues in a higher-risk area adjacent to the Toormina Hotel is to be considered a matter in favour of approving its ETA application.

5. The evidence of Sergeant Saunders concerning the failure to report all violent incidents to the Police and Mr Purcell’s comments about the need to do so support the submission of the Authority that, when tested, there was a demonstrated failure by the management at the Toormina Hotel to adhere to the current Alcohol Plan of Management and Security Management Plan. In submissions, the Authority, referring to the 18 June 2022 incidents and the current Alcohol Plan of Management and Security Management Plan, contended that “current harm minimisation policies in place at the venue are not systematically implemented”. I agree with that submission based on the evidence before the Tribunal. I am satisfied that the evidence before the Tribunal established showed that in some serious instances, the current alcohol plan of management was not followed having regard to Mr Mower’s evidence in particular. Accordingly, I am not satisfied that those plans will be satisfied if problems were to arise during the extended trading hours.

137. With regard to the particular circumstances of the community in which the Toormina Hotel operates, in particular the matters set out above, I am not satisfied that, on balance, the overall social impact of NCPH’s application for an ETA will not be detrimental to the local community. I am unable to say whether the overall social impact will not be detrimental to the broader community and, therefore, cannot be satisfied on this point either.

Decision

138. Accordingly, for the reasons set out above and having regard to the objects set out in the Liquor Act, s 3, I am not satisfied, as required under Liquor Act, s 48(5), that, on balance, the overall social impact of NCPH’s application for an ETA will not be detrimental to the local community. I do not consider that there was sufficient evidence before the Tribunal to form a concluded view on the same question as it relates to the broader community; however, I am not required to reach a state of satisfaction with regard to both the local and broader community – on a proper construction of the provision, either will suffice.

139. Having regard to the evidence and the findings set out above, I consider the correct and preferable decision in this case is to affirm the Authority’s decision to refuse the NCPH’s ETA application.

Order

140. Accordingly, I make the following orders:

1. The decision under review is affirmed.

2. Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the public.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 April 2024