Rooty Hill RSL Club Limited v Liquor Administration Board of New South Wales

[2005] NSWSC 1140

CITATION:	Rooty Hill RSL Club Limited v Liquor Administration Board of New South Wales [2005] NSWSC 1140
HEARING DATE(S):	14 April 2005
JUDGMENT DATE :	10 November 2005
JUDGMENT OF:	Johnson J at 1
DECISION:	Summons dismissed with costs.

CATCHWORDS:	GAMING - possession and operation of gaming machines by registered club - conditional authority to possess and operate gaming machines under hardship provisions in s.88AF Registered Clubs Act 1976 - repeal of s.88AF and commencement of Gaming Machines Act 2001 - operation of savings and transitional provisions in Gaming Machines Act 2001 - whether Liquor Administration Board has power to review and reduce number of gaming machines allowed under original s.88AF conditional authority - Board has such power
LEGISLATION CITED:	Gaming Machines Act 2001 Registered Clubs Act 1976 Unlawful Gambling Act 1998 Gambling Legislation Amendment (Gaming Machine Restriction) Act 2000 Liquor Act 1982 Interpretation Act 1987 Gaming Machines Further Amendment Act No. 102 of 2002
CASES CITED:	Coco v The Queen (1994) 179 CLR 427 R v Young (1999) 46 NSWLR 681 Fisher v Hebburn Limited (1960) 105 CLR 188 Maxwell v Murphy (1957) 96 CLR 261 Mathieson v Burton (1971) 124 CLR 1 Parkes Rural Distributors v Glasson (1986) 7 NSWLR 332 Australian Capital Territory v Pinter (2002) 121 FCR 592 Wilkie v Attorney-General for NSW (Supreme Court of NSW, Foster J, 9 December 1986, unreported, BC8600484) Penna v Liquor Administration Board [2001] NSWSC 681 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355 Fortbacon Pty Limited v Dickie (1995) 127 FLR 69
PARTIES:	Rooty Hill RSL Club Limited (Plaintiff) Liquor Administration Board of New South Wales (Defendant)
FILE NUMBER(S):	SC 30103/04
COUNSEL:	Mr DJ Higgs SC; Mr RJ Bromwich (Plaintiff) Mr M Leeming (Defendant)
SOLICITORS:	Thomson Playford (Plaintiff) IV Knight - Crown Solicitor (Defendant)

LOWER COURT JURISDICTION:

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

Johnson J

10 November 2005

30103/04 Rooty Hill RSL Club Limited v Liquor Administration Board of New South Wales

JUDGMENT

1 JOHNSON J: The Plaintiff, Rooty Hill RSL Club Limited, seeks declarations that the Defendant, the Liquor Administration Board of New South Wales:

(a) has no power under the Gaming Machines Act 2001 (“GM Act”) to review the grant to the Plaintiff of 120 gaming machines previously authorised on 30 August 2000 under s.88AF Registered Clubs Act 1976 (“RC Act”) ; and/or

(b) has no power under the GM Act to reduce the number of gaming machines previously authorised in favour of the Plaintiff on 30 August 2000 under s.88AF RC Act.

In addition, the Plaintiff seeks an injunction restraining the Defendant from reviewing the grant to the Plaintiff of 120 gaming machines and reducing the number of machines as a result of such review.

2 The issues to be determined in these proceedings require consideration of the powers of the Defendant with respect to gaming machines in the context of a complex and changing legislative scheme governing that subject matter in this State since 2000.

Factual Background

3 The Plaintiff is a substantial club operating in the western suburbs of Sydney. Part of the facilities provided by the Plaintiff include access to gaming machines for use by patrons.

4 Keeping and operating gaming machines was and is unlawful in New South Wales save as permitted in accordance with applicable legislation: ss.6, 7, 15 Unlawful Gambling Act 1998. In 2000, the applicable legislation was the RC Act.

5 Prior to 28 March 2000, the Plaintiff had the benefit of an authority to keep and operate 656 gaming machines.

6 Part 10B of the RC Act was inserted by the Gambling Legislation Amendment (Gaming Machine Restriction) Act 2000 with effect from 9 May 2000. Part 10B introduced a “freeze” on the number of approved gaming devices kept by clubs as at 12.00 pm on 28 March 2000. It became unlawful for a club to keep more than the maximum number of approved gaming devices authorised as at 28 March 2000: s.88AE(1) RC Act.

7 Section 88AF RC Act provided a limited exception to the “freeze”. That provision allowed the Defendant to permit a club to keep more approved gaming devices than had been permitted on 28 March 2000. It was necessary, however, for a club to show that its financial viability would be seriously threatened if it were unable to keep additional devices during the “freeze”: s.88AF(1) and (2). Section 88AF(4) authorised the deferral of any hardship application until a report on financial viability had been prepared.

8 On 24 July 2000, the Plaintiff made an application for an additional 144 hardship gaming machines. By letter dated 15 August 2000, the Defendant wrote to the Plaintiff seeking “your response to imposing conditions to the effect that … any approval to be reviewed in say five years’ time”. By letter dated 23 August 2000, the Plaintiff’s solicitor replied and said with respect to this proposed condition:

“I have advised my client of the Board’s power to impose any conditions it considers necessary in granting the application to prevent the serious threat to the Club’s financial viability under section 88AF(5). As such I have been instructed to indicate the Club’s agreement to a review of the grant of the additional machines in five years’ time in light of the Club’s financial standing and needs in relation to its operations and the maintenance of its premises at that time.”

9 By letter dated 24 October 2000, the Defendant replied stating that the “Board is still not satisfied that your client requires 144 additional machines” and providing reasons for that opinion.

10 By letter dated 29 August 2000, the Plaintiff’s solicitor replied:

“The expert has advised me that in his view the absolute minimum number of machines that the Club could trade with to avoid a serious threat to financial viability, where financial viability is defined as solvent trading plus a margin for contingencies is 120 devices. In that situation, the Club’s position becomes marginal by year 2005 and the Club is trading at a loss by year 2007.”

That letter was accompanied by a report of Mr JR Hollington of KPMG, Chartered Accountants, which stated that the Plaintiff’s application was justified because, inter alia, “the club would fall into a loss position in Year 2003” .

11 By letter dated 30 August 2000, the Defendant informed the Plaintiff of its conditional approval for an additional 120 gaming machines. That letter stated:

“The Board has determined that the Club has established that its financial viability will be seriously threatened if it is unable to obtain additional gaming devices during the freeze.
The Board has determined to allow an increase of 120 additional gaming devices subject to the following conditions:

1. any subsequent redevelopment or refurbishment by the Club must be capable of being funded from the Club’s existing income stream (including the 120 new devices) and

2. any approval to be reviewed in three years’ time.”

12 The Plaintiff accepted this conditional approval.

13 On 2 April 2002, the GM Act commenced. Section 213 and Schedule 3 of the GM Act repealed s.88AF of the RC Act.

14 By letter dated 22 August 2003 to the Plaintiff, the Defendant referred to its grant of conditional approval on 30 August 2000 and said:

“I should also inform you that following the repeal of section 88AF of the Registered Clubs Act 1976 and by virtue of section 29(3) and (4) of the Gaming Machines Act 2001, the 58 [sic] hardship machines are now taken to have been approved under the Gaming Machines Act 2001.
Accordingly, to satisfy the Board that the Club should retain the 120 additional gaming machines, the Club will have to address the test in section 28(1) of the Gaming Machines Act 2001.”

Before me, the parties agreed that the reference to “58” in the first quoted paragraph should have been “120” .

15 The Plaintiff’s solicitor responded by letter dated 5 November 2003. That letter advanced a number of arguments in support of the proposition that the Defendant did not have power to review the grant of 120 gaming machines made on 30 August 2000 or, alternatively, had no power to reduce the number of machines. In short, the Plaintiff’s solicitor contended that the enactment of the GM Act had overtaken the conditional grant under the repealed s.88AF of the RC Act so as to remove the ability of the Defendant to undertake a review.

16 By letter dated 15 July 2004, the Defendant replied as follows:

“The Board has received and accepted its own independent legal advice to the effect that, an authority given under section 88AF of the Registered Clubs Act 1976 falls within the savings provision of clause 2(2) of Part 2 of Schedule 1 to the Gaming Machines Act 2001 and therefore, the Board may review the grant of an authority made pursuant to section 88AF of the Registered Clubs Act 1976 where a review of the grant was a condition of the authority.
Accordingly, I confirm my request in my letter dated 22 August 2003 to the Club’s Secretary that, to satisfy the Board that the Club should retain the 120 additional gaming machines, the Club will have to address the test in section 28(1) of the Gaming Machines Act 2001.”

17 The Plaintiff’s solicitor replied on 21 July 2004 in a letter including the following:

“The Club has commenced the preparation of a hardship application under section 28(1) of the Gaming Machines Act 2001 … as requested. The preparation of the hardship application does not mean that the Club necessarily accepts that the Liquor Administration Board of New South Wales … has power to review the original grant of the hardship application made under section 88AF of the Registered Clubs Act 1976.”

18 Further correspondence ensued between the Plaintiff and Defendant in August 2004 concerning the Plaintiff’s hardship application.

19 On 21 October 2004, the Plaintiff commenced the present proceedings in this Court seeking declaratory and injunctive relief.

The Legislative Scheme

20 In order to set the scene for the arguments of the parties, it is appropriate to refer to several provisions in the Liquor Act 1982, the RC Act and the GM Act.

21 The Defendant is constituted under s.72 Liquor Act 1982. The functions of the Defendant are provided for in s.74 of that Act which provides:

“74 Functions of the Board
(1) In addition to the functions otherwise conferred on it by this or any other Act, the Board:

(a) shall keep under constant review the operation of this Act and make such recommendations to the Minister in relation thereto as it thinks fit;

(b) shall, upon being directed by the Minister so to do, inquire into, and make a report and recommendations to the Minister upon, any matter connected with the administration of this Act;

(c) shall keep under constant review the standard of licensed premises;

(d) may receive submissions or reports from any person with respect to the operation of this Act; and

(e) may impose conditions with respect to any matter within its jurisdiction and revoke or vary any such condition.
(2) The Governor may, under the subject to the Public Service Act, 1979, appoint a secretary of the Board and such other officers as are necessary to enable the Board to carry out its functions.”

22 Section 88AF of the RC Act provided as follows:

“88AF Exceptions to the freeze

(1) This Part does not prevent an increase in the maximum number of approved gaming devices that a registered club is authorised to keep under this Act if the club establishes that its financial viability will be seriously threatened during the period of the freeze if it is unable to keep the additional devices.

(2) The applicant is required to establish such a serious threat to its financial viability to the satisfaction of the Licensing Court or the Board (whichever is dealing with the application under this Act for the additional devices).

(3) The Licensing Court or the Board may take into account any submission by the applicant for the purposes of this section, including with respect to the building works:

(a) that were commenced or recently completed, or for which contractual arrangements had been made, at the beginning of the period of the freeze, and

(b) that were only undertaken because of the expectation of funding to be provided by the keeping of additional approved gaming devices.
…

(5) An authority that is given under this Act for additional devices is to be limited to the extent necessary to prevent the serious threat to the club’s financial viability. Accordingly, the authority:

(a) may be given for a lesser number of devices than that applied for, or

(b) may be limited in its duration so that all or any of the additional devices concerned are required to be disposed of at a specified time during the period of the freeze, or

(c) may be subject to any other condition that the Licensing Court or the Board considers appropriate.

… “

23 The primary objects of the GM Act are gambling harm minimisation (the minimisation of harm associated with the misuse and abuse of gambling activities) and the fostering of responsible conduct in relation to gambling: s.3(1) GM Act. The Defendant, together with other bodies and persons exercising functions under the GM Act, are required to have due regard to the need for gambling harm minimisation and the fostering of responsible conduct in relation to gambling when exercising functions under the GM Act: s.3(2). In particular, due regard is to be had to the need for gambling harm minimisation when considering, for the purposes of the Act, what is or is not in the public interest: s.3(3).

24 Part 2 of the GM Act provides for limitations on gaming machine numbers. The maximum number of approved gaming machines that the Defendant may authorise to be kept in all hotels and registered clubs in the State is 104,000, of which a maximum number of 78,020 approved gaming machines are allocated in respect of registered clubs: s.10. Section 12 places a limit on the number of gaming machines in clubs.

25 Part 3 of the GM Act provides for poker machine entitlements and hardship gaming machines. The allocation of poker machine entitlements and the approval to keep hardship gaming machines under Part 3 are subject to the overall State cap provided for in s.10: s.14. Section 15 provides for the initial allocation of poker machine entitlements.

26 Section 15A, upon which the Plaintiff placed reliance during submissions, provides as follows:

“15A Large-scale clubs required to reduce their allocated number of poker machine entitlements

(1) A large-scale club must, before 2 April 2007 (the 5-year period), reduce the number of poker machine entitlements allocated under section 15 in respect of the large-scale club’s relevant premises:

(a) by 10%, or

(b) by such number as would result in the number of poker machine entitlements held in respect of those premises not exceeding 450.
(2) The following provisions apply in relation to the requirement under subsection (1):

(a) the large-scale club concerned must transfer, before the end of each year of the 5-year period, the number of poker machine entitlements (the relevant entitlements) that are required to be transferred in respect of that year as determined by the regulations,

(b) the transfer of any such relevant entitlements must be in accordance with this Division,

(c) if, at the end of the period of 3 months immediately following the end of each such year, any of the relevant entitlements have not been transferred, the remaining relevant entitlements are forfeited to the Board.
(2A) Despite any other provision of this section or the regulations, if a large-scale club has not, by 2 July 2007, reduced the number of poker machine entitlements allocated in respect of its relevant premises to the number required under subsection (1), the remaining number of entitlements that the club was required to transfer in order to reach that reduced number are forfeited to the Board.
(3) The regulations may:

(a) specify the relevant premises of the large-scale clubs to which this section applies, and

(b) authorise the Board to direct a large-scale club to transfer a specified number of poker machine entitlements by a specified date in order for the club to comply with the requirements of this section, and

(c) make provision for any other matter with respect to the requirements of this section.
(4) This section is taken to have commenced on 2 April 2002. The regulations may also provide that any regulation made for the purposes of this section is taken to have commenced on that date.”

27 For the purposes of s.15A, the number of poker machine entitlements which the Plaintiff was required to transfer from its premises before the end of the five-year period was 78: clause 8, Gaming Machines Regulation 2002.

28 Division 3 of the GM Act relates to hardship gaming machines. Section 26 provides for a hardship application to be made by a club within a period of three months following the commencement of the section, namely by 2 July 2002. Sections 28 and 29 of the GM Act were emphasised in submissions by both parties given the subject matter of the provisions and the reference within them to repealed s.88AF RC Act. Sections 28 and 29 GM Act provide as follows:

“28 Hardship applications by registered clubs

(1) In making a hardship application, a registered club must establish, to the satisfaction of the Board, that:
(a) the financial viability of the club will be seriously threatened if the club is not able to keep the additional approved gaming machines, and
(b) the club entered into a contract before noon on 28 March 2000 for the carrying out of significant building or refurbishment work in relation to the club, and
(c) the decision to enter into the contract was based on current cash flow estimates that relied on the additional approved gaming machines.
(2) Subject to the regulations, an existing hardship application made by a registered club is taken to be a hardship application under this Division.
(3) Subsection (1) does not apply in relation to an existing hardship application if it was made before 26 July 2001. Such an existing hardship application is to be determined by the Board in accordance with the provisions of section 88AF of the Registered Clubs Act 1976 as if that section was still in force.
(4) However, subsection (1) does apply in relation to an existing hardship application if it was made on or after 26 July 2001.
(5) Division 1 of Part 4 does not apply to a hardship application by a registered club unless the application is made in respect of a new club (including a club whose premises are removed under the Registered Clubs Act 1976 to other premises whether or not in the same neighbourhood as the previous premises).
(6) In this section:
existing hardship application means an application, made but not determined before the commencement of this section, under the Registered Clubs Act 1976 for the keeping of additional approved gaming machines in a registered club and which was made in connection with section 88AF of that Act (as in force immediately before its repeal by this Act).

29 Approval to keep hardship gaming machines

(1) The Board may refuse a hardship application, or it may approve of the hotelier or registered club keeping all or some of the number of approved gaming machines sought by the hotelier or club in the application. Any such machine is referred to as a hardship gaming machine .
(1AA) The Board’s approval under this section is subject to such conditions as may be imposed by the Board in relation to the keeping of hardship gaming machines by the hotelier or registered club concerned.

(1A) In the case of a hotelier, the Board may not approve of the hotelier keeping such number of hardship gaming machines as would, at the time the approval is given, result in the hotelier keeping more than 15 approved poker machines.
(1B) If a hardship application is made by a prospective hotelier, the Board may refuse the application or it may approve the keeping of hardship gaming machines subject to the prospective hotelier being granted a hotelier’s licence. If the hotelier’s licence is not granted within 3 years of the Board’s approval, the approval is revoked.
(2) The keeping of a hardship gaming machine is subject to any requirement under this Division in relation to the forfeiture of the approval to keep hardship gaming machines.
(3) For the purposes of this Act, a hardship gaming machine includes, in the case of a registered club, a section 88AF hardship machine that:

(a) is kept in the club as at the commencement of this section, or

(b) was, before the commencement of this section, authorised by the Board to be kept in the club at some later time.
(4) Any such section 88AF hardship machine is taken to have been approved to be kept in the registered club under this Act.

(5) In this section:
section 88AF hardship machine means an approved gaming machine authorised to be kept in a registered club as the result of an application that was dealt with under, and determined in accordance with, section 88AF of the Registered Clubs Act 1976 (as in force immediately before its repeal by this Act).” (emphasis added)

29 The savings and transitional provisions in the GM Act are of particular significance to this case. Those provisions are contained in Schedule 1 to the GM Act which has effect by operation of s.211.

30 Part 2 of Schedule 1 contains provisions consequent on enactment of the GM Act. Clause 2 provides as follows:

“2 Preservation of existing gaming machine approvals and authorisations

(1) In this clause:
existing gaming machine approval or authorisation means any approval or authorisation in respect of a poker machine or approved amusement device:
(a) granted under a provision of the Liquor Act 1982 or the Registered Clubs Act 1976 repealed by this Act, and
(b) in force immediately before the repeal of the provision.
(2) An existing gaming machine approval or authorisation is, subject to this Act and the regulations, taken to be an approval or authorisation in force under this Act.
(3) The conditions to which an existing gaming machine approval or authorisation is subject are, subject to the regulations, taken to be conditions imposed by or under this Act and may be revoked or varied in accordance with this Act.” (emphasis added)

31 Clause 10 of Schedule provides as follows:

“10 General saving

Anything done under a provision of the Liquor Act 1982 or the Registered Clubs Act 1976 (being a provision repealed by this Act) that had any force or effect immediately before its repeal is, to the extent that it could have been done under the corresponding provision of this Act, taken to have been done under this Act, subject to any express or implied provision to the contrary in this Act or the regulations made under this Act.”

Contentions of the Parties

32 In broad terms, the Plaintiff contends that the repeal of s.88AF and the commencement of the GM Act in 2002 provides for a new statutory scheme setting a State-wide maximum number of gaming machines with respect to clubs (including the Plaintiff) and with a statutory formula for reduction of the overall number of machines over a specified period of time. The Plaintiff contends that the review provided for in the s.88AF conditional approval of 30 August 2000 is not permissible under the GM Act, which has created a new and exhaustive statutory scheme to determine the permissible number of gaming machines and the rate of reduction of those machines in clubs.

33 In broad terms, the Defendant contends that the savings and transitional provisions in the GM Act keep alive the conditional approval providing for a review and that the review may be undertaken under the GM Act. The Defendant submits that the GM Act allows expressly for pre-existing approvals to continue and that the new scheme in the GM Act does not extinguish or otherwise exclude the Defendant’s power to review the conditional approval of 120 gaming machines in this case.

34 It is appropriate to set out in greater detail the arguments of the parties before moving to determination of the matters falling for decision.

The Plaintiff’s Submissions

35 Mr Higgs SC, who appeared with Mr Bromwich for the Plaintiff, noted that the Defendant had proceeded by way of conditional authority under s.88AF(5)(c) and not an authority of limited duration under s.88AF(5)(b) RC Act. It was submitted that the grant was not for a limited duration and there was no power to prevent the Plaintiff from keeping gaming machines once authority was granted without a requirement of surrender under s.88AF(5)(b).

36 With the commencement of the GM Act in 2002, the Plaintiff submits that ss.26-29 made significant provision for hardship applications. It was submitted that the Defendant’s letter to the Plaintiff of 22 August 2003 erroneously stated that ss.28 and 29 GM Act applied to the Plaintiff’s retention of the 120 gaming machines approved on 30 August 2000.

37 The Plaintiff submits that s.29 GM Act is the only section dealing with approval to retain hardship gaming machines and that the provision is directed to the determination of outstanding hardship gaming machine applications only. It was submitted that the legislature intended by s.28(3) that existing applications (made but not determined by 26 July 2001) would continue to be governed by s.88AF of the RC Act. As the Plaintiff’s application was determined on 30 August 2000, it was submitted that s.28(3) had no application, nor did s.88AF by operation of s.28(3) GM Act.

38 The Plaintiff submits that s.28 applies to hardship applications made on or after 26 July 2001 which had not been determined at the time of the commencement of the GM Act, and to applications made after the commencement of the GM Act. As the Plaintiff’s application fell outside these classes, it was submitted that s.28 had no application to the Plaintiff’s retention of the 120 gaming machines approved on 30 August 2000.

39 Section 29(1), according to the Plaintiff, empowers the Defendant to refuse or approve an application to keep hardship gaming machines, including an application for machines made under s.88AF but not determined before the commencement of the GM Act. Whilst s.29(4) deems approvals under s.88AF to be taken to have been approved under the GM Act, that does not have the effect, express or implied, of re-opening an application that had already been determined. Unless a club applies to keep hardship gaming machines, the Defendant has no pending application over which to exercise power.

40 The Plaintiff submits that it is incorrect to suggest that ss.28 and 29 GM Act can have application, both as a matter of statutory interpretation and because it would lead to the curious and improbable result that:

(a) applications made and determined prior to 26 July 2001 are open to be further determined under ss.28 and 29 GM Act;

(b) applications made but not determined prior to 26 July 2001 are to be determined under s.88AF RC Act;

(c) applications made from 26 July 2001 onwards are to be determined under ss.28 and 29 GM Act.

41 The Plaintiff submits that the effect of s.28(3) and (4) is that:

(a) s.88AF RC Act applied to applications made and determined prior to 26 July 2001, such as the Plaintiff’s application;

(b) s.88AF continued to apply to applications made but not determined prior to 26 July 2001; and

(c) ss.28 and 29 GM Act only apply to applications made on or after 26 July 2001: s.28(4).

42 It is submitted for the Plaintiff that the enactment of the GM Act has changed the system with respect to gaming machines from an individual approval system to a quota system. The individual approval system did not have any global limit on the number of machines and therefore relied on a case-by-case approval for individual clubs to keep certain numbers of machines. This was initially sought to be restricted by the introduction of a “freeze” in the grant of additional poker machines to clubs and hotels in March 2000, qualified by a system of hardship exceptions. A new quota system under the GM Act has an effective State-wide limit on the number of machines at any one time, distributed by way of tradable gaming machine entitlements (subject to conditions) with the entitlements initially allocated by a statutory formula.

43 In the case of 18 larger scale registered clubs, including the Plaintiff, with the commencement of the quota system, provision was made for the number of entitlements held to be reduced automatically by 10% over five years. The Plaintiff’s case is that this superseded the previous regime of reviewing the number of hardship machines granted under the previous legislation. The Plaintiff contends that its original number of authorised poker machines (656) and the number of its additional gaming machines (120) have been merged into a new poker machine entitlement (776) which has already been the subject of automatic reduction under the new legislation. Accordingly, the Plaintiff submits that the Defendant has no power to conduct the review that it now seeks to perform.

44 The Plaintiff submits that an intention to take away fundamental rights should not be imputed without the clearest language: Coco v The Queen (1994) 179 CLR 427 at 437. It is submitted that there are limits upon the capacity of a court to change the words used by Parliament in construing a statute: R v Young (1999) 46 NSWLR 681 at 686.

45 The Plaintiff contends that the gaming machines constitute a licensed and legal product for which valuable rights are given and which cannot be taken away without legislative authority. In circumstances in which express provision has been made for an automatic reduction in the number of poker machine entitlements of larger scale clubs, designed to reduce the overall number of entitlements across the 18 clubs concerned by 953 machines (clause 8 Gaming Machines Regulation 2002), the Plaintiff contends that the new statutory scheme does not accommodate the review foreshadowed by the Defendant.

46 Even if, contrary to its primary submission, the legislature intended to provide the Defendant with the power both to review the grant of gaming machines and to reduce the number approved on top of that provided for by Parliament, the Plaintiff contends that such an intention has not been manifested in the legislation. According to the Plaintiff, it is not part of the Court’s function to remedy such a deficiency. The words in the statute themselves are to be interpreted and, if the words do not give the power sought, then the power does not exist.

47 The Plaintiff submits that s.29(1AA) GM Act, which commenced on 1 January 2003, does not apply to prior approvals under the RC Act. It is submitted that, as an amending Act, it is prima facie to be construed as having a prospective operation only: Fisher v Hebburn Limited (1960) 105 CLR 188 at 194.

48 The Plaintiff submits that the general rule is that statutes changing the law do not apply to confer or impose rights or responsibilities unless there is reasonable certainty that such a result was intended – in this case a right in the Defendant possibly to stop the Plaintiff keeping the additional machines: Maxwell v Murphy (1957) 96 CLR 261 at 267. The Plaintiff submits that s.29(1AA) ought be construed as operating prospectively only. It relies upon the principle that if an enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as operating prospectively only: Mathieson v Burton (1971) 124 CLR 1 at 22. The Plaintiff submits that the transitional provision in clause 10 of Schedule 1 to the GM Act indicates the contrary by preserving the operation of provisions that have been moved from the Liquor Act 1982 and the RC Act. Clause 10 is inconsistent with s.29(1AA) operating retrospectively.

49 The Plaintiff submits that if s.29(1AA) is to be interpreted as having application to prior approvals under the RC Act, then that must be found under one of the transitional provisions or deeming provisions. The transitional provision in clause 10 of Schedule 1 does not achieve this because it is limited to things that could have been done under the RC Act. Nor does the transitional provision in clause 2(2) of Schedule 1 achieve this result because it does no more than preserve prior approvals and authorisations, not create new powers.

50 The Plaintiff submits that there was no power under the RC Act in relation to losing the right to keep hardship gaming machines already approved except in relation to grants given for a limited duration under s.88AF(5)(b) coupled with a requirement to dispose of them. This was not the condition applied to the Plaintiff and the power to impose “other conditions” in s.88AF(5)(c) did not otherwise extend to a power not to keep the machines, as opposed to conditions attaching to the granting of the application.

51 The Plaintiff submits that ss.28 and 29 GM Act do not empower the Defendant to compel the Plaintiff to make any further application or bestow any restriction on keeping a machine the subject of a previous approval. If the application was determined under s.88AF, then it was complete and the Defendant has no power to deal with it any further. If the application was not finally determined, it must be dealt with under s.88AF by reason of s.28(3) GM Act. Section 88AF gives no power to take away machines previously granted. At most, the Plaintiff submits, it empowers conditions to be imposed that cannot be more onerous than the express grant of power contained within s.88AF(5)(a) and (b).

52 In summary, the Plaintiff submits that there is no power to review the conditional grant to the Plaintiff of 120 gaming machines on 30 August 2000, nor to reduce the number of machines so authorised.

The Defendant’s Submissions

53 Mr Leeming, Counsel for the Defendant, submits that the original grant of authority on 30 August 2000 was subject to review, and the subsequent legislation, coupled with ordinary principles of statutory construction, confirm that the same condition continues to apply.

54 The opening words of s.88AF(5) imposed a duty upon the Defendant to determine what was necessary in order to prevent the serious threat to the Plaintiff’s financial viability and impose conditions commensurately. The power did not otherwise extend to relax the Plaintiff from the “freeze”. The correspondence prior to the Defendant’s determination on 30 August 2000 demonstrates that both the Plaintiff and the Defendant were conscious of this.

55 The second condition required a review to be conducted by the Defendant in three years’ time. The purpose of the condition was to determine whether, in the light of the financial viability of the Plaintiff at that time, it was necessary to reduce, maintain or increase the number of hardship machines.

56 The Defendant submits that, if the regime which was in place in August 2000 had continued, the question for the Defendant in conducting that review would have been whether the additional authority in respect of the 120 machines continued to be necessary to prevent the serious threat to the Plaintiff’s financial viability.

57 The Defendant submits that it is important to bear in mind the qualified nature of the authority conferred on 30 August 2000 when it comes to addressing the Plaintiff’s arguments asserting an invasion of a common law right. First, what was given was a purely statutory authority. Secondly, it was an authority which was itself conditioned by a review after three years. Thirdly, like any other authority conferred by the Defendant, it was subject to the future exercise of the Defendant’s power to “impose conditions with respect to any matter within its jurisdiction and revoke or vary any such condition”: s.74(1)(e) Liquor Act 1982. Even if the express provision in s.74(1)(e) was not present, the same result would obtain by operation of s.48(1) Interpretation Act 1987. Reliance is placed by the Defendant upon Parkes Rural Distributors v Glasson (1986) 7 NSWLR 332 at 335, 336 where Glass JA (Samuels and Priestley JJA agreeing) accepted that “a power exercisable from time to time may be so exercised as to add to, subtract from or reverse the result of the previous exercise”.

58 The Defendant submits that, with the enactment of the GM Act, provision was made in relation to approvals and authorisations granted under the repealed legislation. First, s.29(5) introduced as a defined term “section 88AF hardship machine”. As a result, the Defendant contends:

(a) the 120 machines the subject of the 30 August 2000 authority are “section 88AF hardship machines” as defined; and

(b) the effect of s.29(4) is that those machines are taken to have been approved under the GM Act.

59 The express incorporation within s.29 of the term “section 88AF hardship machine”, coupled with the fact that s.29 is directed to the same end as s.88AF of the RC Act (namely, hardship exceptions to the “freeze”) points to the conclusion that s.29 is a “corresponding provision” within the meaning of clause 10 of Schedule 1 to the GM Act. The Defendant submits that there is no express or implied provision to the contrary.

60 The Defendant places particular reliance upon clause 2 of Schedule 1 to the GM Act. It is submitted that the authority granted to the Plaintiff on 30 August 2000 pursuant to s.88AF is an “approval or authorisation in respect of a poker machine … granted under a provision of” the RC Act which was in force immediately before the repeal of s.88AF. It follows that the authorisation of 30 August 2000 was an “existing gaming machine approval or authorisation” within the meaning of clause 2(1), with the consequence that:

(a) it is taken to be an approval or authorisation in force under the GM Act; and

(b) the conditions to which it was subject are taken to be imposed by or under the GM Act and may be revoked or varied in accordance with the GM Act.

61 The Defendant submits that the following propositions are apt:

(a) the authority of 30 August 2000 must now be taken to have been an authority under the GM Act;

(b) the conditions attaching to the authority of 30 August 2000 are taken to be conditions imposed by the GM Act;

(c) the fact that the deeming provisions caused there to be an altered source of power for the authority does not alter the extent of the authority granted; what was conditional under the RC Act remains conditional under the GM Act; all of the provisions referred to in the GM Act make it clear that they are concerned with preservation not expansion of the authority to do that which otherwise would be unlawful;

(d) at all times, the authority was subject to the imposition of further conditions by the Defendant; this is not the case where a common law property right has been granted; instead, permission has been given which, inherently, is liable to the imposition from time to time of conditions; s.29(1AA) GM Act makes that clear and the same is confirmed by s.74(1)(e) Liquor Act 1982 .

62 In summary, the Defendant’s response to the Plaintiff’s claim is that the condition requiring a review after three years, which was a condition of the authority granted under the RC Act, continues to be an aspect of the authority now taken to be under the GM Act.

63 The Defendant submits that the declarations and injunctions sought by the Plaintiff proceed on the basis that what was once conditional has now, by the repeal of the RC Act and its replacement by the GM Act, become unconditional. That submission, which the Defendant contends would be an extraordinary result in a highly regulated industry, has no foundation in any of the legislative provisions and is inconsistent with the provisions upon which the Defendant relies.

64 The Defendant submits that the Plaintiff’s contention that the new regime of “poker machine entitlements” produces the result that the Defendant has no power to conduct the review does not identify the provisions which operate to produce that result and displace the operation of the express provisions relied upon by the Defendant. To the extent that it may be relevant to a case involving statutory construction, the Defendant submits that it is also contrary to the stance taken by the Plaintiff’s solicitor on 23 August 2000 when the Defendant was informed that the Plaintiff agreed to the future review of the grant.

65 The Defendant submits that the Plaintiff’s construction of s.88AF(5)(b) and (c) is not correct. The Plaintiff seeks to read a limitation into s.88AF(5)(c) and ignores the express powers given to the Defendant to impose new conditions.

66 The Defendant submits that the Plaintiff’s contention presupposes that the conditions imposed on 30 August 2000 have somehow lapsed and does not address the provisions that continue their existence. The Plaintiff’s submission is inconsistent also with the Defendant’s continuing power to impose new conditions and vary existing conditions (s.74(1)(e) Liquor Act 1982).

67 With respect to the Plaintiff’s submissions concerning s.29(1AA), the Defendant submits that the Plaintiff’s approach ignores the fact that s.88AF approvals were addressed expressly in s.29 GM Act.

68 With respect to the Plaintiff’s invocation of the need for clear language to abrogate fundamental rights, the Defendant submits that the rights which are the subject of that rule of construction do not include statutory dispensations from a prohibition which are themselves inherently susceptible to variation: Australian Capital Territory v Pinter (2002) 121 FCR 592 at paragraphs 26-42.

69 In summary, the Defendant submits that the conditional authority granted on 30 August 2000 is preserved by operation of the transitional provisions in the GM Act and the Defendant has the power to conduct such a review and, if it saw fit, reduce the number of machines below the 120 machines authorised in August 2000.

Consideration of Submissions

70 The resolution of the issues in this case involves a process of statutory construction. That process involves, in turn, consideration of the interrelationship between relevant provisions of the RC Act and the GM Act. It is helpful to approach the steps taken by the Defendant with respect to the Plaintiff between 2000 and 2004 sequentially.

71 The authority under s.88AF(5) granted by the Defendant on 30 August 2000 involved a decision, in the exercise of an administrative discretion, that additional machines ought be allowed to the Plaintiff, but limited to the extent necessary to prevent the serious threat to the Plaintiff’s financial viability. It would have been open to the Defendant to limit the duration of the authority for the 120 additional machines under s.88AF(5)(b). The Defendant did not opt for this approach, which would have been a less favourable outcome for the Plaintiff than that which was adopted.

72 Rather, the Defendant utilised the condition-making power under s.88AF(5)(c). This was a broad power. The authority granted by the Defendant “may be subject to any other condition that the … Board considers appropriate”. The imposition of a condition that the authority for 120 additional devices would be reviewed in three years was a valid condition. It was consistent with the statutory purpose to be achieved by s.88AF(5) RC Act. Moreover, it was favourable to the Plaintiff in that such a condition would allow the Plaintiff to retain the 120 additional machines subject to the review process. The authority was not limited in its duration. Further, the Plaintiff invited and accepted such a review condition in its dealings with the Defendant in 2000.

73 If the GM Act had not been enacted, then it was open to the Defendant to undertake a review in accordance with the condition. That review would have involved the Defendant considering whether, at the time of the review, the Plaintiff had demonstrated that retention of the 120 additional devices was still necessary to prevent a serious threat to its financial viability. It would have been open to the Defendant to reduce the number of authorised additional devices if it saw fit in the circumstances as they existed at the time of the review.

74 I do not accept the Plaintiff’s submission that the principle in Coco v The Queen has application to this case as an aid to statutory construction. Coco v The Queen relates to the construction of statutes which abrogate or curtail fundamental rights or immunities usually arising under common law. That is not this case. The Plaintiff was authorised in August 2000 to have 120 additional machines on a conditional basis with a review of that authority after three years. The legitimate expectation of the Plaintiff was that that authority would not be removed or reduced without an opportunity to be heard in the review process. This is consistent with the general principle that the Defendant should provide a licensee or affected person with an opportunity to be heard before making a decision which may affect adversely the interests of that licensee or person: Wilkie v Attorney-General for NSW (Supreme Court of NSW, Foster J, 9 December 1986, unreported, BC8600484 at page 10ff); Penna v Liquor Administration Board [2001] NSWSC 681 at paragraph 15. The Board’s correspondence in 2003 and 2004 provided the Plaintiff with an opportunity to furnish material as part of the process of review.

75 I accept the submissions of Mr Leeming that the authority to have 120 additional machines constituted a dispensation from a prohibition upon machines which would otherwise be unlawful and which dispensation was itself susceptible to variation by operation of the review condition. The principles in Coco v The Queen have no application in these circumstances.

76 I turn to the proper construction of relevant provisions of the GM Act.

77 The contemporary approach to statutory interpretation is literal but not literalistic and requires words to be construed in their total context: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 141 (paragraph 115). In Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at 384 (paragraph 78):

“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

78 In accordance with the principles in R v Young, I approach the question of construction upon the basis that it is no part of the function of the Court to amend legislation or to introduce words into an Act. The task of the Court is that identified in Project Blue Sky.

79 At the outset, it should be observed that there is nothing in the GM Act which extinguishes expressly the conditional authority granted by the Defendant to the Plaintiff on 30 August 2000 under s.88AF(5) RC Act.

80 Far from there being provisions in the GM Act which extinguish the conditional authority granted to the Plaintiff on 30 August 2000, there are savings provisions which keep that authority on foot after the commencement of the GM Act.

81 I am satisfied that authority under s.88AF(5) RC Act falls within clause 10 of Schedule 1 to the GM Act. The grant of the authority was made under a provision of the RC Act which had force or effect immediately before the repeal of that Act. Section 29 GM Act is a “corresponding provision” to s.88AF RC Act. The word “correspond” does not mean identical. The term “corresponding provision” includes a new section dealing with the same subject matter as the old one in a manner or with the result not so far different from the old as to strain the accepted meaning of the word “corresponding”, as given in the Shorter Oxford English Dictionary as “answering to in character and function; similar to”: Fortbacon Pty Limited v Dickie (1995) 127 FLR 69 at 74.

82 There is no express or implied provision to the contrary in the GM Act or regulations made under that Act. Accordingly, in accordance with clause 10 of Schedule 1 to the GM Act, the grant of a conditional authority for the 120 additional machines is “taken to have been done under” the GM Act.

83 This conclusion leads to the rejection of the Plaintiff’s argument that, in effect, the s.88AF(5)(c) grant of conditional authority passed into history and was extinguished upon the commencement of the GM Act.

84 Clause 2 of Schedule 1 to the GM Act provides an express foundation for the preservation of the conditional authority granted by the Defendant to the Plaintiff on 30 August 2000. The s.88AF(5) authority falls within the definition of “existing gaming machine approval or authorisation” in clause 2(1).

85 Accordingly, the s.88AF(5) conditional authority is, subject to the GM Act and regulations, taken to be an approval or authorisation in force under the GM Act: clause 2(2). The conditions to which the approval or authorisation is subject are, subject to the regulations under the GM Act, taken to be conditions imposed by or under the GM Act and may be revoked or varied in accordance with that Act: clause 2(3).

86 It is clear that the subject matter in ss.28 and 29 GM Act corresponds, in the relevant sense, with ss.88AF RC Act. Section 28(3) and (6) and s.29(3) and (5) refer expressly to s.88AF RC Act. The subject matter of the provisions is the same. The fact that s.28 is subject to temporal limitations does not mean that it is not a corresponding provision for the purpose of clause 10 of Schedule 1 to the GM Act.

87 The Defendant may grant approval for hardship gaming machines subject to conditions: s.29(1AA) GM Act. Section 29(1AA) was inserted by the Gaming Machines Further Amendment Act No. 102 of 2002 which commenced on 1 January 2003. The Plaintiff submits that s.29(1AA) should have a prospective operation only. I do not accept this submission.

88 Applying the ordinary language of clause 2 of Schedule 1 to the GM Act, I consider that the s.88AF(5) condition is taken to be a condition imposed under the GM Act and may be revoked or varied in accordance with the Act. This conclusion does not involve reading words into the legislation in contravention of the principle in R v Young. To the contrary, it involves a fair reading of the legislation and its application to the circumstances of this case.

89 I do not accept the Plaintiff’s argument that this analysis is undermined by the fact that s. 29(1AA) was introduced on 1 January 2003, that is after the GM Act itself had commenced. I am construing the legislation as it stood at the time of relevant events in 2003 and at the time of the hearing before me. I do not consider that this involves giving a type of retrospective application to s.29(1AA) GM Act. Rather, it involves the proper application of the savings and transitional provisions in Schedule 1 to the GM Act.

90 I do not accept the Plaintiff’s submission that the apparent inclusion of the 120 additional gaming machines within the Plaintiff’s 776 machines under s.15A GM Act transforms the Plaintiff’s possession of those 120 machines into a form of entitlement which attracts the principles in Coco v The Queen. The GM Act should not be construed as providing, in s.15A, the sole method whereby the Plaintiff’s number of gaming machines may be reduced. The statutory formula under s.15A and cl.8 Gaming Machine Regulation 2002 provides for a minimum number of machines to be disposed of by the Plaintiff over the five-year period. Where a conditional authority under s.88AF(5)(c) was on foot when the GM Act commenced, and the authority was kept on foot by operation of the transitional provisions of the GM Act, then it remains open to the Defendant to use that conditional authority as a basis for reduction of the 120 additional machines.

91 As a result, I am satisfied that the review condition imposed on the s.88AF(5) authority on 30 August 2000 continues to operate as a condition attaching to the Plaintiff’s holding of the 120 machines.

92 Accordingly, I am satisfied that the Board has power to undertake a review under that condition with respect to those 120 machines.

93 The Plaintiff submitted that there was no power in the GM Act for the Defendant to reduce the number of machines held by the Plaintiff in the absence of forfeiture (s.30) or an order as part of disciplinary proceedings (ss.56 and 64). According to the Plaintiff’s submission, even if the Plaintiff had power to review the condition, there was no power in the Defendant to reduce the number of machines as part of that review. I do not accept this submission.

94 For reasons stated above, it is open to the Defendant to consider further reduction of the 120 machines pursuant to a review of the conditional authority which remains on foot by operation of express provisions in the GM Act.

95 The terms of s.29(1AA) are sufficiently broad to allow the Defendant to impose a condition under that provision providing for a review of the approval after a period of time.

96 Even if the GM Act did not expressly allow the Defendant to revoke or vary the condition, I am satisfied that the Defendant has the power to revoke or vary the condition imposed on 30 August 2000 under s.74(1)(e) Liquor Act 1982. The power to consider and reconsider such a condition is also available under s.48 Interpretation Act 1987.

97 In undertaking a review, no doubt the Defendant would have regard to the objects of the statute in s.3 GM Act and factors relevant to the exercise of a discretionary authority of this type. No doubt, regard would be had to other provisions of the GM Act, including those in s.15A and cl.8 Gaming Machines Regulation 2002 which operate to reduce automatically by 2007 the number of machines held by the Plaintiff. Those provisions, however, provide for a minimum, and not a maximum, number of machines which must be disposed of by the Plaintiff.

98 It is neither necessary nor desirable to say more about factors which may bear upon the Defendant’s decision-making function pursuant to that review. It is clear that the Plaintiff must be afforded procedural fairness (Wilkie; Penna) including identification by the Defendant to the Plaintiff of factors which it will take into account in the review process.

Conclusion

99 I am satisfied that the Defendant has power to review the grant to the Plaintiff of 120 additional machines on 30 August 2000. I am also satisfied that the Defendant has power to reduce the number of gaming machines as part of that review.

100 I have reached these conclusions by application of the savings and transitional provisions which operated to keep on foot the conditional authority granted by the Defendant to the Plaintiff on 30 August 2000 after the commencement of the GM Act. Those provisions, taken with s.29 GM Act, s.74(1)(e) Liquor Act 1982 or s.48 Interpretation Act 1987, empower the Defendant to review the conditional authority and, in the exercise of that power, reduce the number of machines.

101 The issues determined in these proceedings relate only to the question of the power of the Defendant, and not whether that power should be exercised. That is a matter for the Defendant to consider in the exercise of its statutory functions and responsibilities. I am satisfied, however, that the Defendant possesses the power to act in the way in which I have found.

102 Accordingly, the Plaintiff is not entitled to the declaratory or injunctive relief sought in the summons. The summons is dismissed with costs.

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