The Northern Tavern P/L v Liquor and Gambling Commissioner and Anor No. Scciv-02-675
[2003] SASC 11
•29 January 2003
THE NORTHERN TAVERN PTY LTD v LIQUOR AND
GAMBLING COMMISSIONER and ANOR
[2002] SASC 365Civil
PERRY J. At the time these proceedings were instituted, the Roosters Club Inc (“the Roosters Club”), which holds a club licence under the Liquor Licensing Act 1997, conducted its operations, including the operation of the club licence, at the premises of the North Adelaide Football Club at 43 Menzies Crescent, Prospect. The Roosters Club also holds a gaming machine licence issued pursuant to the Gaming Machines Act 1992, which at that time applied to the same premises.
By an application dated 21 August 2001, the Roosters Club applied to the Liquor and Gambling Commissioner (“the Commissioner”) for the removal of the club licence to premises at 255 Main North Road, Sefton Park. At the same time it applied for the grant of a gaming machine licence with respect to the Sefton Park premises, subject to the removal of the club licence to the proposed premises. The application was made on the footing that the Roosters Club would surrender its existing gaming machine licence with respect to the Prospect premises if granted its application for such a licence at the Sefton Park premises.
The plaintiff in the proceedings in this Court, the Northern Tavern Pty Ltd (“the Northern Tavern”) is the holder of a hotel licence with respect to premises situated at 269 Main North Road, Enfield, known as the Northern Tavern. The Northern Tavern (and other parties) filed an objection both to the removal sought by the Roosters Club of its club licence and to the grant of a new gaming machine licence with respect to the Sefton Park premises.
Given that the Roosters Club did not wish to remove the club licence to the proposed new premises at Sefton Park unless its application for a gaming machine licence for those premises was granted, the Commissioner first dealt with the application for the grant of the gaming machine licence.
The Commissioner conducted a hearing on 11 December 2001, following which he reserved his decision.
The Commissioner delivered written reasons on 7 January 2002, in which, subject to the qualification to which I refer below, he indicated that he would grant a gaming machine licence in accordance with the application with respect to the premises at Sefton Park “on removal of the club licence to those premises”.
In the course of his reasons, the Commissioner intimated that on the plans which were then before him he was not satisfied as to one of the requirements for the grant of the gaming machine licence, namely that referred to in s 15(4)(e) of the Gaming Machines Act 1992. This requires the Commissioner, before granting a gaming machine licence, to be satisfied:
“(e)that the size of the proposed gaming operations on the premises would not be such that they would predominate over the undertaking ordinarily carried out on the premises;”
Subsequently, in February 2002, in order to address the Commissioner’s concern as to that requirement, the Roosters Club lodged a revised plan of the proposed premises.
On 26 March 2002, the Commissioner conducted a further hearing, at which the objectors were heard.
On 16 April 2002, the Commissioner delivered further reasons in which he held that he was satisfied as to the requirements of s 15(4)(e).
He went on to hold:
“...... as I indicated in my decision of 7 January 2002 I will grant a gaming machine licence with approval to operate forty gaming machines to the Roosters Club Inc in respect of premises situated at 225 Main North Road, Sefton Park, on removal of the club licence to those premise (sic).”
The Northern Tavern and another objector, No Pokies Campaign Inc, appealed to the Licensing Court against the decision of the Commissioner.[1] On 26 July 2002, the Licensing Court dismissed the appeal.
[1] See Gaming Machines Act 1992 s 69(1).
In the meantime, on 17 May 2002, the Northern Tavern issued a summons in this Court claiming, inter alia, a declaration that the decision of the Commissioner made on 16 April 2002 was “ultra vires and void”.
By an amended summons[2] filed on 22 August 2002, the Northern Tavern sought, in addition to the declaration to which I have just referred, a further declaration, namely:
“1A A declaration that the First Defendant [the Commissioner] is precluded from granting a Gaming Machine Licence to the Second Defendant because of s 14A of the Gaming Machines Act.”
[2] See SCR r 53.01.
On 26 August 2002, I dismissed an application brought by the Roosters Club to strike out the amendment to the summons, that is, paragraph 1A.
The summons in its amended form came on for hearing before me on the next day, that is, 27 August 2002.
Relevant Statutory Provisions
It is convenient at this stage to refer to the relevant provisions of the Gaming Machines Act 1992. They are to be found in Part 3, Division 2. That Division provides in part:
“DIVISION 2 - SPECIAL PROVISIONS RELATING TO
GAMING MACHINE LICENCESFreeze on gaming machines
14A(1) Despite any other provision of this Act, the Commissioner cannot grant an application for-
(a)a gaming machine licence; or
(b)approval to increase the number of gaming machines to be operated under a gaming machine licence,
if the application was made on or after 7 December 2000.
(2) However, subsection (1) does not apply to any of the following applications for a gaming machine licence:
(a)an application made by a person referred to in section 15(1)(d), if the premises in question are (or were, immediately prior to the surrender or revocation of the relevant liquor licence) the subject of a gaming machine licence;
(b)an application made by the holder of a gaming machine licence who surrenders that licence so that a new one may be granted to the applicant following-
(i)removal of his or her liquor licence to new premises [in the same locality as the premises from which the licence was removed]; or
(ii)the surrender of his or her liquor licence for the grant of another liquor licence of a different class,
pursuant to the Liquor Licensing Act 1997.
(3) ..........”
The words “in the same locality as the premises from which the licence was removed”, which I have indicated between square brackets in subsection (2)(b)(i), were inserted by the Gaming Machines (Limitation on Exception to Freeze) Amendment Act 2002 (No 5 of 2002) (“the amending Act”), which came into force on 25 July 2002, the day before the dismissal of the appeal by the Licensing Court.
The amending Act contained a transitional provision (s 3) which provided that the amendment pursuant to which the words which I have indicated in square brackets were inserted did not “apply in respect of applications for a gaming machine licence made on or after 8 May 2002 or made, but not determined, before that date”.
In this case, the question arose, upon which I heard argument, whether or not the application by the Roosters Club for a gaming machine licence with respect to the Sefton Park premises, which was made before 8 May 2002, had been “determined” before that date within the meaning of s 3 of the amending Act.
On 27 August 2002, I published interim findings in which I held, inter alia, that the application by the Roosters Club for a gaming machine licence for the Sefton Park premises was “determined” within the meaning of s 3 of the amending Act, before 8 May 2002.
I did not at that stage give reasons for reaching that conclusion.
My reasons for doing so may be shortly stated.
Although there is no equivalent in the Gaming Machines Act to s 59 of the Liquor Licensing Act 1997, pursuant to which the liquor licensing authority may grant a certificate of approval subject to conditions such as the completion of the proposed premises, it seems to me that the decision of the Commissioner published on 16 April 2002 in practical terms disposed of the application before him. In that sense it had been determined. At that stage he had heard and ruled upon the application and the objections to the grant, and he had determined the merits of the application in favour of the Roosters Club. The grant of the gaming machine licence as sought was thereafter a formality contingent upon the removal of the club licence to the subject premises.
The effect of my ruling that the application by the Roosters Club for a gaming machine licence for the subject premises was “determined” before 8 May 2002, was that the Roosters Club was entitled to make its application for a gaming machine licence for the Sefton Park premises when it did, unaffected by the freeze imposed by s 14A(1). This was so, as separately it satisfied s 14A(2)(b) in that its application was predicated upon the surrender of its gaming machine licence attaching to the Prospect premises, in order that a new gaming machine licence might be granted following removal of the liquor licence attaching to the Prospect premises to the proposed premises at Main North Road, Sefton Park.
However, in order to qualify for the grant of a gaming machine licence at the Sefton Park premises, the Roosters Club was nonetheless obliged to satisfy the Commissioner as to a number of requirements imposed by s 15(4), which is relevantly as follows:
“15........
(4)A gaming machine licence will not be granted unless the applicant for the licence satisfies the Commissioner, by such evidence as the Commissioner may require-
(a)that the proposed gaming area, or gaming areas, within the premises in respect of which the licence is sought is or are suitable for the purpose; and
(b)that the proposed layout of gaming machines in a gaming area is suitable for the proper conduct of gaming operations within the area; and
(c)that the arrangements proposed for the security of the premises, each gaming area and the gaming machines, and of the gaming operations generally, are adequate; and
(d)that the conduct of the proposed gaming operations on the premises would be unlikely to result in undue offence, annoyance, disturbance or inconvenience to those who reside, work or worship in the vicinity of the premises; and
(e)that the size of the proposed gaming operations on the premises would not be such that they would predominate over the undertaking ordinarily carried out on the premises; and
(f)that the conduct of the proposed gaming operations on the premises would not detract unduly from the character of the premises, the nature of the undertaking carried out on the premises or the enjoyment of persons ordinarily using the premises (apart for the purpose of gaming); and
(g)that no proposed gaming area is so designed or situated that it would be likely to be a special attraction to minors.”
The Commissioner was eventually satisfied as to all of those matters, and the present proceedings do not challenge his decision in that respect.
However, a further hurdle, which, for reasons which will appear, is of critical importance in disposing of this matter, is to be found in s 15A which provides:
“Gaming venues not to be located under same roof as shops or within shopping complexes
15A(1) Despite any other provision of this Act, the Commissioner cannot after the commencement of this section grant an application for a gaming machine licence in respect of licensed premises, or grant any other application under this Act in respect of licensed premises that are subject to a gaming machine licence, if to do so would result in the licensed premises, or the whole or part of a gaming area of the licensed premises, being located-
(a)under the same roof as a shop, whether or not on the same level or floor as the shop; or
(b)anywhere within the boundaries of a shopping complex.
(2) Subsection (1) applies only in respect of an application made after the commencement of this section (and any grant by the Commissioner of such an application will be taken to be void and of no effect).
(3) Subsection (1) does not apply where the shop-
(a)is a part of the licensed premises set aside for the purpose of selling liquor in bottles to the public; or
(b)is intended primarily for the use of guests staying on the licensed premises.
(4) For the purposes of subsection (1), licensed premises will be regarded as falling within the boundaries of a shopping complex if the land on which the premises are situated-
(a)formed part of the complex immediately prior to the granting of the development authorisation (or the first such authorisation if more than one) for the establishment of the licensed premises on the land; or
(b)shares a common boundary with the complex and the licensed premises are, in the opinion of the Commissioner, so linked to or integrated with the complex that they may properly be regarded as forming part of the complex.
(5) In this section-
“shop” means a shop at which goods are sold to the public by retail;
“shopping centre” means a cluster of premises where-
(a)at least one of the premises is a shop; and
(b)the premises are located in the one building or in 2 or more buildings that are adjoining or are separated only by the grounds of the centre; and
(c)the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade;
“shopping complex” means a shop, or shopping centre, together with all parking and other areas adjacent and ancillary to, and intended primarily for the use of persons attending, the shop or shopping centre.” (emphasis added)
The Role of the Supreme Court
At the outset of the hearing before me, I expressed some concern as to the power of this Court to grant declaratory relief, given that there is no right of appeal to this Court.
Mr Hayes QC of counsel for the Northern Tavern submitted that there was clear authority to support the view that this Court has jurisdiction to entertain a declaration of the kind sought. He referred in particular to the decision of the High Court in Corporation of the City of Enfield v Development Assessment Commission and Anor.[3]
[3] [2000] 199 CLR 135.
Before dealing with that decision, I should explain that the Northern Tavern puts its case in two different ways.
In the first place, the Northern Tavern relies upon the prohibition against the grant of an application for a gaming licence contained in s 15A(1)(b). That operates to preclude the grant of an application for a gaming licence where the proposed licensed premises are located “anywhere within the boundaries of a shopping complex”. The Northern Tavern contends that the premises in question are within the boundaries of a shopping complex within the meaning of s 15A(1)(b), having regard to the definition of “shopping complex” in s 15A(5).
The second argument is that if the premises are not within the boundaries of a shopping complex in that sense, they must nonetheless be regarded as “falling within the boundaries of a shopping complex” by reason of the application of s 15A(4)(b), in that the premises are on land that shares a common boundary with the complex and the Commissioner should have reached the opinion that the licensed premises are “so linked to or integrated with the complex that they may properly be regarded as forming part of” it within the meaning of that subsection.
Whether those two questions can be addressed in proceedings for a declaration in this Court, depends upon the answer to the further question whether or not, upon a proper construction of s 15A, the Commissioner lacks jurisdiction to grant an application where s 15A(1)(b) or s 15A(4)(b) apply.
In the Enfield City case (supra), this Court was asked to declare that Provisional Development Plan Consent which had been given by the Development Assessment Commission (“the DAC”) pursuant to the Development Act 1993 was ultra vires and void.
DAC had determined that proposed alterations and additions to an existing waste treatment plant was an activity which should be characterised as “general industry” rather than “special industry”, with the result that provisions in the Development Act which operated to prevent a proposed development as “non-complying development” where it constituted a “special industry” were not of application.
In effect, this Court was asked to declare, contrary to the view taken by DAC, that the proposed development was in fact in the nature of “special industry”, with the result that it was a “non-complying development” prohibited by the relevant Development Plan.
Debelle J at first instance concluded that the proposed development should properly be characterised as “special industry” and made the declaration sought. His decision was reversed on appeal to the Full Court.
On a further appeal to the High Court, the decision of Debelle J was restored.
In their joint judgment, Gleeson CJ, Gummow, Kirby and Hayne JJ addressed the question of the amplitude of the jurisdiction of the Supreme Court to entertain an action for a declaration. In doing so, they regarded the proceedings as invoking the jurisdiction of the Supreme Court “to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto”.[4] They contrasted an action of that kind with proceedings by way of judicial review: see SCR r 98.01.
[4] See the joint judgment, para 18, 199 CLR 144.
Their Honours made the following observations:
“21...... The substance of the matter is that Enfield asserts apprehended breach by Collex of the statutory provisions which forbid the proposed development without the approval of the relevant authority (the Commission) together with the concurrence of Enfield. Enfield seeks a declaration as to the invalidity of the approval upon which Collex relies as establishing the legality of its development. The cast of the litigation thus resembles that in authorities such as Thompson v Randwick Municipal Corporation,[5] Marsh v Shire of Serpentine-Jarrahdale,[6] City of Port Melbourne v Hamer,[7] Electronic Industries Ltd v City of Oakleigh,[8] and Wingecarribee Shire Council v Minister for Local Government.[9] In his oral submissions in this Court counsel for Collex did not dissent from this understanding of the nature of the proceedings. However, he rightly pointed out that Enfield itself had tended to confuse matters in its notice of appeal by categorising the Full Court as having dealt with the litigation as an application for ‘judicial review’.
22There will be differences between, on the one hand, the availability in public law of equitable remedies, and judicial review by mandamus, prohibition and certiorari on the other. At least under s 75(v) of the Constitution, rules as to standing may be more generous for prohibition[10] and certiorari.[11] However, an applicant with standing still may fail to obtain an order absolute for reasons which would not have precluded the availability of a declaration. This was the case in Ainsworth v Criminal Justice Commission.[12] FAI Insurances Ltd v Winneke[13] decided that, whilst certiorari and mandamus were not available against the Governor in Council, a declaration might be made against the Attorney-General of Victoria as representative of the Crown. Again, with certiorari, there are technicalities attending the requirement of an error of law on the face of the record; these are exemplified by Craig v South Australia.[14] However, where the question is whether the decision-maker has erred as to the jurisdictional facts, as in this case, that question has to be answered by the court in which it is litigated upon the evidence before that court. In this respect, where the issue requires determination of whether jurisdictional facts existed, the task of the court to determine that question is essentially the same whether the relief sought be equitable or, for example, prohibition.” (emphasis added)
[5] (1950) 81 CLR 87.
[6] (1966) 120 CLR 572. See also in this court Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; Twist v Randwick Municipal Council (1976) 136 CLR 106; Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614.
[7] [1971] VR 66.
[8] [1973] VR 177.
[9] [1975] 2 NSWLR 779.
[10] Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 263.
[11] Waterside Workers’ Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 at 516-518 per Isaacs and Rich JJ. The jurisdiction of this court [the High Court] had been attracted by the claim for prohibition; cf Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 630.
[12] (1992) 175 CLR 564.
[13] (1982) 151 CLR 341 at 351, 372, 386-387, 404, 419-421.
[14] (1995) 184 CLR 163 at 175-183.
Later in the judgment their Honours expatiated further on the meaning of the term “jurisdictional fact”:
“28The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a ‘non-complying’ development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a ‘non-complying” development, which turned upon the application of the criterion of ‘special industry’, was a condition upon the existence of which there operated the obligation that the Commission not grant consent.”[15]
[15] That the validity of an administrative act should turn on “debatable” questions involving imprecise criteria, as opposed to precisely “defined” legal criteria, was the subject of criticism by King CJ in R v City of Munno Para: Ex parte Weeks (1987) 46 SASR 400 at 403. The same criticism may also be levelled at the provisions of the Gaming Act now in question.
They went on to hold that in determining the application for a declaration, it was necessary for Debelle J to determine the issue as to the existence of the “jurisdictional fact” upon the evidence before the Supreme Court. In doing so, they held that the Full Court erred in holding that the court should defer “in grey areas of uncertainty to the practical judgment of the planning authority”,[16] and in holding that what had to be shown was “a serious departure (in planning terms) from requirements of the Act and regulations”.[17]
[16] Enfield City Corporation (1997) SASR 99 and 119 cited at 199 CLR 151.
[17] 69 SASR at 121.
However, the High Court made it plain that there is an important difference between cases where the jurisdiction of the relevant authority turns upon the existence of a jurisdictional fact on the one hand, and cases where the existence of the jurisdiction turns upon the “satisfaction or opinion” of the relevant authority as to a given state of affairs:
“34Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, as Collex submitted, further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker.[18]”
[18] Citing R v Connell; Ex parte Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 at 430, 432; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57-58; Buck v Bavone (1976) 135 CLR 110 at 118-119; Foley v Padley (1984) 154 CLR 349 at 369-377; Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259 at 274-276; Australian Heritage Commissioner v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303, 308; Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at 650-657.
Applying the reasoning of the High Court in the passages to which I have referred to the case at bar, it seems to me that it is for this Court on the evidence before it to determine the question whether, within the meaning of s 15A(1)(b), the premises in question are located “anywhere within the boundaries of a shopping complex”, as defined.
If that question is answered in the affirmative, this Court should declare that the Commissioner lacked jurisdiction and the grant of the application for a gaming machine licence was therefore void.
If the answer to that question was to be in the negative, the further question to be addressed is whether or not the opinion of the Commissioner referred to in s 15A(4)(b), on the facts of this case, was “formed reasonably upon the material before” him.[19]
[19] Enfield City (supra) 199 CLR 135 at 150.
The Evidence before the Supreme Court
A number of affidavits were filed in this Court which effectively put before the Court the material which was before the Commissioner, including a transcript of the evidence taken by him at the hearings to which I have referred, and various reports which had been tendered before the Commissioner.
I was asked to deal with the matter on the basis of that material, together with two exhibits which I received in evidence. They were a copy of the updated plan of the subject premises as considered by the Commissioner before his decision delivered on 16 April 2002, and a recent photograph which depicts both the advertising sign which has been placed in front of the proposed premises and a sign which is positioned in front of the Regency Plaza referring to some of the tenancies in the Plaza.
As well, in the presence of counsel and at their request, I conducted a view of the subject premises and its surrounds. In accordance with my usual practice, I prepared notes of the view which I settled in consultation with counsel, and which, with their agreement, I received as an exhibit.
Although the ordinary rule is that the use to be made of a view is limited to providing assistance in understanding the evidence tendered in court, some measurements and other observations made on the view were agreed to by counsel. They amplify slightly the evidence which was otherwise before me.
The affidavits which, together with exhibits, were tendered are the following:
Deponent File Document No Date Filed Peter Francis Hoban 3 17 May 2002 Milton Mackay 5 11 June 2002 Peter Francis Hoban 6 12 June 2002 Peter Francis Hoban 9 22 August 2002 Gregory Michael Griffin 11 26 August 2002 Glen Elliott 12 19 November 2002 Peter Francis Hoban 13 19 November 2002
Against that background, I make the following factual findings.
The subject building is located on the eastern side of Main North Road within a substantial area of land bounded by Main North Road, Regency Road (to the north), May Street (to the east) and Park Street (to the south). There are various developments on that parcel of land.
The principal development is a large building or complex of adjoining buildings towards the northern or Regency Road end of the land, which includes a Coles supermarket, the Northern Tavern and associated bottle shop, a branch of the National Australia Bank, businesses known as Amcal Chemist, La Plaza Snack Bar, Lesley Green & Associates, Regency Plaza Fish & Chicken and some vacant tenancies. That development is described in large signs attached to it as “Regency Plaza”. There is no doubt that the development constitutes what in common parlance is described as a shopping centre.
The main frontage of the Regency Plaza shopping centre is to the eastern side of Main North Road on the corner of Main North Road and Regency Road.
The subject premises are in a building located on the eastern side of Main North Road, slightly south of the main shopping centre building, and against the western boundary of the land. The northern end of the building, which was previously a Sizzlers restaurant, is now occupied by the Roosters Club. The other part of the building is an ANZ Bank branch.
Immediately to the south of the ANZ Bank branch, with a frontage to Main North Road, is a building occupied by a dentist. Further south from the dentist’s rooms is the Enfield Uniting Church, which occupies the south-western corner of the area of land, with frontages to Main North Road and Park Street.
On the other side of Park Street, that is on the south side of Park Street, between May Street and Main North Road, is another shopping centre known as the Sefton Plaza shopping centre.
A feature of the subject site is the extensive off-street parking. There is a large parking area fronting Main North Road, Regency Road and May Street, extending to the south on the eastern side of the subject premises, past the ANZ Bank leading up to Park Street behind the church.
Although the parking area is on several pieces of land which are separately owned, there are no fences, and vehicles may move freely over the whole area.
A few parking spaces behind the ANZ Bank are designated by a sign as reserved for ANZ Bank customers, but I doubt that that is significant. This is so in view of the fact that there was no obvious means of policing that requirement, and also given the very large extent of the parking areas overall.
The sole entrance or driveway from Main North Road is immediately adjacent to the northern side of the subject premises and gives access to the whole of the parking areas.
In his report dated 1 November 2001, Mr Graham Burns, a town planning consultant called by the Northern Tavern, described the car parking area in this way:
“An extensive off-street car park with access via shared driveways to Main North Road (one entrance), May Street (two entrances) and Park Street (five entrances). The car park is interconnected to provide convenient access into and out of the car park from these various entrance points to the various shopping, consulting room and community facilities distributed throughout the car park.”
Another witness called by the Northern Tavern, Mr Phil Weaver, a consulting traffic engineer, stated in his report dated 2 November 2001:
“My review on site has identified, inter alia:-
·the various car parking areas extend across the above block and the car parking areas are fully integrated. Direct traffic circulation is provided between all car parking areas without the need for drivers to use the external road network, with the exception of a small car park at the rear of the office on Main North Road.
·patrons of both the Regency Plaza Shopping Centre and the Sefton Plaza Shopping Centre, park within the above block, and
·there is considerable parking demand within the parking areas immediately to the east of the subject development.
I note that the capacity of the proposed licensed premises would be for 110 partons. Based on a car parking rate of 1 space / 3 patrons, this would require provision of 37 car parking spaces. Such a parking demand would need to be met by use of the on-site shopping centre car parking areas.”
Apart from the signage attached to the northern plaza shopping centre building, counsel pointed out on the view that on the north-east corner of the location, that is, on the corner of Regency Road and Main North Road, there is a sign which displays a Coles logo. Then on the eastern side of Main North Road on the western side of the car park, halfway between the subject premises and Regency Road, is a National Bank sign.
Immediately north of the subject premises, in a small nature strip between the subject premises and the driveway off Main North Road, is a large double-sided sign on which appears-
ROOSTERS ON
PLAZA
GAMING BAR & BISTROOn the other side of the driveway, that is, to the north of that sign and more or less level with it, abutting the driveway, is a sign which is capped by the Northern Plaza logo (a stylised crown) under which are listed the tenants of the shopping centre building, commencing with Coles supermarket, then referring to Northern Tavern and bottle shop, and then in smaller letters the other tenants to which I have referred.
Those two signs are depicted, together with the Regency Plaza shopping centre and the rear of the Coles supermarket, in the background in the photograph tendered during the hearing before me. That photograph follows:
PHOTO DISPLAYED IN HARD COPY OF JUDGMENT
Other observations which were made on the view which are relevant for present purposes include an inspection of the interior and exterior of the club premises which are depicted in the plan which was before the Commissioner as follows:
PHOTO DISPLAYED IN HARD COPY OF JUDGMENT
The al fresco tiled area is more or less immediately adjacent to the driveway from Main North Road.
On the view, a paced measurement between the edge of the veranda and the nearest corner of the Coles building was agreed at 16 metres.
It was pointed out that from the entrance to the club there are no public entrances into the shopping centre visible, the entrance to the shopping centre on its western side being somewhat recessed. Counsel agreed a further measurement of 73 metres between the entrance to the club and the entrance to the shopping centre.
It was noted that the long frontage of the ANZ Bank portion of the building which houses the subject premises has no public entrance from Main North Road, the entrance to the bank being on the eastern side of the bank premises.
Bus stop 17 is located a little way along the bank’s frontage to Main North Road and appears to be the only bus stop on Main North Road for southbound buses adjacent to the shopping centre.
There is a large ANZ Bank sign on a tall post outside the ANZ Bank a little north of the bus stop, similar to the NAB sign adjacent to the car park on the same alignment. It was also noted that the Northern Tavern and specialty shops are all on the northern side or the north-western corner of the area, that is, on the side adjacent to Regency Road.
I have of necessity based most of the findings of fact which I have so far expressed upon the evidence which was led before the Commissioner by the Northern Tavern. Apart from formal documents which were tendered on behalf of the Roosters Club, the only witness called by the club before the Commissioner was its then general manager, Mr Milton Mackay. His evidence does not touch on the issues which it is necessary for me to resolve for present purposes.[20]
[20] I drew the attention of counsel to the fact that the transcript does not contain all of the evidence of Mr Mackay, some of which was not recorded. Counsel indicated that they wished me to deal with the matter on the basis of the transcript as it stands.
As I have already indicated, the Northern Tavern called the consulting traffic engineer Mr Weaver, the town planning consultant Mr Burns and a property developer and valuer, Mr Walker .
Mr Weaver offered the following conclusion in his report:
“In summary, I consider that there is clearly a direct relationship, both in terms of vehicular and pedestrian access and potential for shared use of car parking areas, between the proposed development and the Regency Plaza Shopping Centre. I consider that the various car parking areas give a perception of a continuous shopping centre car park and that patrons of both the Regency Plaza Shopping Centre and the subject development will perceive a direct relationship between these facilities.
In conclusion, I consider that the proposed licensed premises would be clearly linked to or integrated with the complex, and that the proposed facility could be regarded as forming part of the shopping centre complex.”
Mr Walker offered the following opinion:
“In my opinion the northern portion of the Sizzler building forms part of the Regency Plaza Shopping Centre precinct. It shares car parking and shoppers are easily able to access both premises as there are no fences in the area. Indeed this is also the case between adjoining Sefton Plaza Shopping Centre and Regency Plaza Shopping Centre. The effect is to create a sub regional shopping precinct comprising Sefton Plaza, Regency Plaza (on the Eastern side of Main North Road) and North Park Shopping Centre (on the Western side of Main North Road).
In particular the Sizzler premises and the Regency Plaza premises share a common unfenced boundary and are so linked that the Sizzler premises in my opinion may be properly regarded as forming part of the Regency Plaza Complex.”
Mr Burns stated that the building in which the subject premises are situated forms part of larger district centre zone. He identified the plan of the zone, which was tendered in evidence.
It appears from this plan that the district centre zone is broken down into three sub-areas designated “shopping”, “office” and “community”. He did not regard the fact that the subject premises are within that part marked “community” whereas the Northern Tavern is in the part marked “shopping” as constituting a reason to qualify his opinion, which is expressed in the following passage from his report dated 1 November 2001:
“In my opinion the Sizzler building clearly forms part of the Regency Plaza Shopping Centre, even though it stands independently of that ‘anchor’ building. There are two reasons why I am of this opinion:
·all of the facilities described above are contained within a District Centre Zone, and in particular within the Sefton Park District Centre, which extends south to include the Sefton Plaza Shopping Centre;
·the centre is serviced by carparking, access, loading and unloading facilities that have been located so that they may be shared, to the greatest extent possible, by the various facilities established in this centre.”
In a further report dated 6 November 2001, Mr Burns makes the point that the “community” sub-area of the Sefton Park District Centre continues to form part of the district centre both in functional terms by reference to shared access and parking and its relationship with other land use components. He concludes in that report:
“To suggest that the Sizzler building is not part of the Regency Plaza Shopping Complex is not only inconsistent with the ‘integrated centres’ philosophy contained in the development plan, it is also at odds with the way in which the centre has been physically arranged and developed.”
In the first of his reasons for decision, namely those dated 7 January 2002, the Commissioner refers briefly to the evidence of Mr Burns and Mr Walker. I am unable to see any reference in those reasons to the evidence of Mr Weaver. Be that as it may, the Commissioner accepted criticism advanced by Mr Beazley for the Roosters Club of the evidence of Mr Burns and Mr Walker, and preferred Mr Beazley’s argument that there were three distinct shopping centres, namely Regency Plaza, Sefton Plaza and North Park shopping centre (located on the western side of Main North East Road, opposite the subject premises).
Of those three shopping centres the only relevant centre, in his view, was the Regency Plaza. In his opinion, the proposed premises, together with the Regency Plaza and the Sefton Plaza car park (the parking area behind the church adjacent to Park street and opposite the Sefton Plaza shopping centre) did not constitute a “cluster of premises” within the meaning of those words in the definition of shopping centre in s 15A(5) of the Act.
For the reasons which I have already indicated, it is for me to reassess the evidence for myself and to determine independently of the decision of the Commissioner whether the subject premises are within the boundaries of a shopping complex for the purposes of s 15A(1)(b).
The opinions expressed by the witnesses Mr Weaver, Mr Walker and Mr Burns, while they may be taken into account in addressing this issue, cannot pre-empt the Court’s determination of the question.
Evidence of the manner in which the area if zoned under planning legislation is, I suppose, relevant, but it does not take the matter very far. This is because the Gaming Machines Act contains its own definitions of “shopping complex” and “shopping centre”, and it is the application of those definitions to the facts which is critical for present purposes.
For the purposes of s 15A(1)(b), the phrase “shopping complex” is defined to mean “a shop, or shopping centre, together with all parking and other areas adjacent and ancillary to, and intended primarily for the use of persons attending, the shop or shopping centre”:
“Shopping centre” means a cluster of premises where-
(a)at least one of the premises is a shop; and
(b)the premises are located in the one building or in 2 or more buildings that are adjoining or are separated only by the grounds of the centre; and
(c)the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade”
Paragraphs (a) and (b) of the definition of “shopping centre” are satisfied by the evidence in this case. Clearly, many of the premises within the Regency Plaza shopping centre are shops from which the subject premises are separated only by parking areas. Although there may be a certain circularity of reasoning involved, I think that the parking areas which flow around and are contiguous to the Northern Plaza shopping centre and the subject premises may properly be regarded as part of the “grounds of the centre”.
However, in my view, there is an absence of evidence that the “cluster of premises” is “promoted as or generally regarded” as constituting a shopping centre. In reaching that view, I do not overlook the signage on the Regency Plaza building and in the grounds surrounding it, particularly along the frontage to Main North Road.
Perhaps the nearest approach to evidence of promotion of the subject premises as part of the Regency Plaza appears in the “Roosters on Plaza” sign. But not without some hesitation, I do not think that that is quite enough to satisfy this requirement. Individual premises may promote themselves as part of a shopping centre, whereas the cluster of premises said to comprise the shopping centre as a whole may not promote themselves in a way which includes those premises.
However, in my view, contrary to the conclusion reached by the Commissioner, the opinion which he formed that the subject premises were not so “linked or integrated with” the shopping complex that they might properly be regarded as forming part of the complex, cannot reasonably be formed on the material which was before him.
I stress that in reaching that conclusion, I have confined myself strictly to the material which was before the Commissioner. This means that on this aspect of the matter, I exclude from consideration the agreed measurements taken on the view, as although the Commissioner also took a view, there is no evidence that he took the same measurements, or that they were agreed for the purposes of his hearing. Neither have I had regard to any observations of the subject premises, or the sign in front of them, as opposed to the plan, as the premises had not been converted to their present use at the stage the matter was before the Commissioner. This, though, is a minor aspect of the matter; I would make the critical findings with or without the assistance of those matters.
The Commissioner dealt with the s 15A(4)(b) question in the following passage in the course of his reasons given on 7 January 2002:
“Are the proposed premises so linked or integrated with the Regency Plaza that they may be regarded as forming part of the complex? Mr Costello argues that the linkage and integration is inescapable because:
1)the two properties share common ingress and egress;
2)there are no dividing areas and there is nothing to prevent pedestrian flow from one to the other;
3)there will be common patrons;
4)Roosters Club patrons will park in either the Regency Plaza car park or the Sefton Plaza car park;
5)the visual appearance of the two properties is such that they appear to be one;
6)the expert evidence is that people will go to the district centre for a whole range of activities, including shopping and possibly attendance at the Roosters Club.
I agree with Mr Costello on (1), (2), (3), (4) and (6) above. In relation to (5), I have already said that in my opinion the two properties definitely do not appear to be one. Everything about them is different. I go so far as to say that the proposed premises and Regency Plaza are as similar as the two are to the dentist and the Enfield Uniting Church. They are in the same area but that is as far as it goes. They are four quite unique properties in so far as appearance is concerned.
While I accept that there will be some common patronage and that Roosters’ Club patrons will avail themselves of shopping centre car parking because of the club’s limited car parking I am not of the opinion that this constitutes linkage or integration with Regency Plaza such that the Roosters Club may properly be regarded as forming park (sic) of the complex.”
As for point (5) it is true that the two properties are quite different in character, but they are both commercial premises, and it seems to me that the differences in appearance are not such as to impact one way or the other on the question whether they are “so linked to or integrated” with the Regency Plaza shopping complex as properly to be regarded as forming part of it within the meaning of s 15A(4)(b).
As for the other points listed by the Commissioner, the Commissioner was correct in accepting them.
However, they stood to be considered in the context of the evidence as a whole, particularly the evidence of the three expert witnesses called by Northern Tavern. In my view, the Commissioner failed to deal adequately or properly with their evidence.
It seems to me that, properly understood, the evidence as a whole, including the evidence of those witnesses, clearly demonstrates such a degree of linkage or integration that the subject premises may “properly be regarded as forming part of” the shopping complex known as the Regency Plaza.
The principal matters which lead me to that view are the proximity of the premises, the fact that they stand on what might be described as a discrete area of land defined by the four roadways lying along its boundaries, and the other points accepted by the Commissioner. The sign immediately in front of the subject premises “Roosters on Plaza, Gaming Bar & Bistro” reflects what I consider is likely to be the common perception, even if (as was the case when the matter was before the Commissioner) the sign was not there, namely that the facility offered by the subject premises is an amenity which is situated on an area of land which is not only contiguous with the Regency Plaza, but is linked to it in the relevant sense.
The nature of the evidence which was before him, taken as a whole, is such that the conclusion which the Commissioner reached as to this aspect of the matter could not reasonably be formed on the material before him.
Before parting with the matter, I mention that reference is made in the Commissioner’s reasons dated 7 January 2002 to the second reading speech of the Minister given on 9 December 1997 relating to the Gaming Machines (Gaming Venues in Shopping Centres) Amendment Bill. The second reading speech was also referred to in the course of the argument before me. In the circumstances of this case, I do not think that the content of the second reading speech is of assistance in construing the relevant statutory provisions or in resolving the issues upon which the appeal falls to be determined.
In my view, the Northern Tavern is entitled to the declaration which it seeks, namely a declaration that the grant of a gaming machine licence with respect to the subject premises is void.
Given that the Roosters Club has commenced operating the gaming bar in the subject premises, I would be prepared to refrain from formally pronouncing the declaration until the club has had an opportunity to consider its position and the possibility of an appeal.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT1. See Gaming Machines Act 1992 s 69(1).
2. See SCR r 53.01.
3. [2000] 199 CLR 135.
4. See the joint judgment, para 18, 199 CLR 144.
5. (1950) 81 CLR 87.
6. (1966) 120 CLR 572. See also in this court Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; Twist v Randwick Municipal Council (1976) 136 CLR 106; Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614.
7. [1971] VR 66.
8. [1973] VR 177.
9. [1975] 2 NSWLR 779.
10. Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 263.
11. Waterside Workers’ Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 at 516-518 per Isaacs and Rich JJ. The jurisdiction of this court [the High Court] had been attracted by the claim for prohibition; cf Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 630.
12. (1992) 175 CLR 564.
13. (1982) 151 CLR 341 at 351, 372, 386-387, 404, 419-421.
14. (1995) 184 CLR 163 at 175-183.
15. That the validity of an administrative act should turn on “debatable” questions involving imprecise criteria, as opposed to precisely “defined” legal criteria, was the subject of criticism by King CJ in R v City of Munno Para: Ex parte Weeks (1987) 46 SASR 400 at 403. The same criticism may also be levelled at the provisions of the Gaming Act now in question.
16. Enfield City Corporation (1997) SASR 99 and 119 cited at 199 CLR 151.
17. 69 SASR at 121.
18. Citing R v Connell; Ex parte Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 at 430, 432; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57-58; Buck v Bavone (1976) 135 CLR 110 at 118-119; Foley v Padley (1984) 154 CLR 349 at 369-377; Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259 at 274-276; Australian Heritage Commissioner v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303, 308; Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at 650-657.
19. Enfield City (supra) 199 CLR 135 at 150.
20. I drew the attention of counsel to the fact that the transcript does not contain all of the evidence of Mr Mackay, some of which was not recorded. Counsel indicated that they wished me to deal with the matter on the basis of the transcript as it stands.
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