The Roosters Club Inc v the Northern Tavern Pty Ltd & Anor No. Scciv-02-675

THE ROOSTERS CLUB INC
v THE LIQUOR AND GAMBLING COMMISSIONER & ANOR
[2003] SASC 103
Full Court: Doyle CJ, Nyland and BlebyJJ

DOYLE CJ:In 1997 Parliament amended the Gaming Machines Act 1992 (“the Act”) by inserting s 15A. That section is intended to prevent the grant of a gaming machine licence in respect of premises “under the same roof as a shop” or “anywhere within the boundaries of a shopping complex.”
The amendment was a response to significant concern in the community about the effects of gaming machines, and to a particular concern about a trend towards licensed premises (premises the subject of a gaming machine licence) being located in shopping centres.
The Liquor and Gambling Commissioner (“the Commissioner”) on 18 October 2002 granted a gaming machine licence to The Roosters Club Inc (“the Club”). The grant of the licence followed two hearings before the Commissioner (see sections 6-8, 19 and 24 of the Act). At each hearing The Northern Tavern Pty Ltd (“the Tavern”) was an objector (see s 30 of the Act). At the first of those hearings the Commissioner recorded that he would grant a gaming machine licence to the Club in respect of its proposed premises, subject to the Commissioner being satisfied of certain matters. At the conclusion of the second hearing the Commissioner indicated that he was satisfied of those matters. The Tavern and another objector appealed to the Licensing Court against each of those decisions (see s 69 of the Act). The Licensing Court dismissed the appeal. No appeal lies against the decision of that Court: s 60(7) of the Act.
Shortly thereafter the Tavern instituted proceedings in this Court claiming a declaration that the Commissioner’s decision that he would grant a licence in respect of the relevant premises was “ultra vires and void.” The Tavern also sought an injunction restraining the Commissioner from giving effect to his decision.
The Tavern claimed that the grant of the licence was prohibited by s 15A, that accordingly s 15A operated to deny the Commissioner any power to grant the licence, and that the grant was invalid and void, in the sense of being ineffective.
After the proceedings were instituted the Commissioner granted the licence and the Club began to trade at the premises. There was no submission to this Court that anything turned on that.
A Judge of this Court upheld the submissions of the Tavern and declared that the grant of the licence was void. The Club appeals against that decision.
Not all of the issues raised by the proceedings were argued on appeal. The issues argued on appeal are these. First, whether on its proper construction s 15A operated to deny to the Commissioner any power to grant the licence, if, on its proper construction and in the circumstances, the grant attracted the prohibition in s 15A. Second, whether in the circumstances the grant did attract the prohibition in s 15A. The Club attacked the Judge’s conclusion on each of these points.
The Legislation
Under the Act the Commissioner has administrative power and authority to grant or to refuse a licence. The Act specifies criteria by reference to which an application must be considered (see s 15 in particular). No issues arise on appeal in relation to those criteria. Section 24(1) of the Act provides:
"Subject to this Act, the Commissioner has an unqualified discretion to grant or refuse an application for a licence on any ground, or for any reason, that the Commissioner thinks fit."
It was not argued, correctly in my opinion, that the Commissioner’s discretion displaced the prohibition in s 15A.
To understand the issues that arise on appeal, it is necessary to set out the whole of s 15A. It provides as follows:
"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 purpose 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."
The proceedings before the Judge
Before the Judge the parties tendered the evidence taken before the Commissioner. The Judge also received an up to date plan of the Club premises. Nothing turns on that. The Judge also received a recent photograph showing a free-standing sign outside the Club premises, advertising the Club premises under the name “Roosters On Plaza” and also showing another free-standing sign close by advertising the Regency Plaza shopping centre (“the RPC”). That sign listed some of the shops in the RPC, in particular Coles (a supermarket) and the Tavern. The Judge also conducted a view of the Club premises and the surrounds.
The main issue before the Judge was whether the Club premises were within the boundaries of a shopping complex.
The Tavern’s first argument was that the RPC (undoubtedly itself a shopping centre) and the Club premises were parts of the same “shopping centre” as defined in s 15A(5) and that the Club premises were within the boundaries of the “shopping complex” founded on that shopping centre. The Judge did not accept the submission. By Notice of Contention the Tavern submitted that he should have done so, and that his ultimate decision can be supported on that basis.
The Tavern’s second argument was that the Club premises were to be regarded as falling within the boundaries of a shopping complex. For the purposes of this argument the RPC was treated as a “shopping centre”, a “shopping complex” then being founded on the RPC as a shopping centre. The facts were then said to come within s 15A(4)(b). The Judge accepted that submission. The Club attacked that conclusion on appeal, and the Tavern supported it.
The shopping complex and the Club premises
The outcome of the case, and of the appeal, turns on the relationship (I cannot think of a better word) between the Club premises and the RPC, including the parking and pedestrian areas surrounding the RPC. That makes it necessary to describe the RPC and the surrounding area. In what follows references to the RPC are references to the building comprising that shopping centre, although on occasions the reference will also be to the surrounding parking and pedestrian areas.
The Club premises and the RPC are on a large rectangular parcel of land in a suburb north of the City of Adelaide. The land is bounded on the west by Main North Road (a very busy main road), on the north by Regency Road (also a main road), on the east by May Street (a suburban street with houses on its eastern side) and on the south by Park Street. Park Street is a suburban street with houses either side, but where it forms the southern boundary of the parcel it separates a parking area from another large shopping centre on the southern side of Park Street, called Sefton Plaza.
Close to the frontage to Regency Road, and about equidistant from Main North Road and May Street, is a large building which is the RPC. This building faces Regency Road, and has pedestrian entrances on the northern frontage, on the western frontage (but close to the northern frontage) and on the eastern frontage (about mid-way along that frontage). A Coles supermarket is the largest occupant of the RPC. Other occupants, all under the one main roof, include a bank, a number of small businesses and the Tavern. The Tavern is the next largest occupant after Coles. As its name indicates, the Tavern is a tavern and bottle shop, and contains gaming machines.
The RPC building is surrounded by land used for car parking. On the northern frontage to Regency Road there is a single line of parking spaces. Along the eastern and western sides of the building are three and sometimes four lines of spaces for cars. The southern wall of the building is the back wall of the building. Between this wall and Park Street there is a large area available for parking cars. This southern wall is a blank wall. It does not give access to the RPC.
As I have mentioned, immediately across Park Street, and also facing north, is the Sefton Plaza shopping centre. That shopping centre is based around another major tenant, and incorporates a Foodland supermarket and a Target store.
Somewhat surprisingly, having regard to the issues that arise, the Judge was not given evidence showing who owned which parts of the large parcel of land just described by me. It was common ground that the parking and pedestrian areas on the northern, western and eastern sides of the RPC were owned by or leased to RPC. It was also common ground that much of the land south of the RPC building was leased to Sefton Plaza shopping centre. Indeed, a photograph before the Judge shows that a sign in this area was headed “Sefton Plaza” in a manner which tends to link the area with Sefton Plaza. A person who parked a motor car in this area would have to walk a fair way up the eastern or western side of the RPC to gain access to it, but some of the parking spaces south of the RPC would be closer to an entrance to the RPC than to Sefton Plaza.
There are no barriers of any kind, other than the building constituting the RPC, and some other buildings that I will mention in a moment, which prevent vehicles or people from moving across the whole parcel of land. There is one entry and exit point for vehicles in Regency Road, two from May Street, four or five from Park Street and one from Main North Road.
I come now to the Club premises. It is one of three buildings in the south‑western corner of the parcel of land. On the corner of Park Street and Main North Road is a Uniting church, the lessor of some of the land south of the RPC to Sefton Plaza. On the northern side of the church, and facing Main North Road, is a smaller building occupied by a dentist. The next building north, and again quite close to Main North Road, is the building occupied by the Club. The southern part of the building is occupied by ANZ Bank. The northern part is occupied by the Club. Immediately north of the northern wall of the Club premises are some low shrubs, then a footpath, then a paved area which continues around the RPC and south to Park Street. To a casual observer, the Club is bounded on its northern and eastern frontages by a typical shopping centre car park. The paved area adjacent to the northern wall of the Club premises is marked with an arrow indicating that it is to be used to drive from the land onto Main North Road. The paved area north of that is marked with an arrow indicating that it is to be used for vehicles entering the parcel of land from Main North Road. A motor car entering the land here can be turned left and driven up the side of the RPC, or can go ahead passing the Club premises with a slight dog-leg to the right, and then enter the space for parking cars on the southern side of the RPC.
The Club premises are close to the south-western corner of the RPC building, but there is plenty of space for motor vehicles to pass through the gap. The northern wall of the Club premises is very close to the east-west alignment of the southern or back wall of the RPC building.
There is no entrance to the ANZ Bank from the Main North Road frontage. Access is gained from the rear or eastern frontage. The Club has an entrance at its north-western corner facing Main North Road, and at its north-eastern corner.
Although there is no evidence about title boundaries, it was common ground that the portion of land marked for use by vehicles leaving the parcel of land and driving on to Main North Road is on the title for the land on which the Club premises are erected. The portion of the land marked for vehicles entering the parcel of land from Main North Road is on land owned by or leased to RPC. There are about ten parking spaces immediately east of the Club premises and the bank which are on the title of the land on which the Club premises and the bank are situated.
It follows, and I understood this to be common ground, that just north of the Club premises there is a common boundary between the land on which the premises are situated and “parking and other areas adjacent and ancillary to, and intended primarily for use of persons attending” the RPC. Likewise, immediately east of the Club premises is a common boundary between the land on which the Club premises are situated and parking areas, but whether these are “adjacent and ancillary to, and intended primarily for the use of persons attending” the RPC or Sefton Plaza is another matter, and no finding was made by the Judge as to that.
The Judge’s Reasons
The Judge held, applying the reasoning of the High Court in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135, that the prohibition in s 15A(1) of the Act was one which, if it arose in the circumstances, produced the result that a grant of a licence contrary to the prohibition was invalid, and not merely erroneous.
The Judge held that the Court must decide on the evidence before it, and not just the evidence before the Commissioner, whether for the purposes of s 15A(1)(b) the licensed premises were “anywhere within the boundaries of a shopping complex.” He held that in deciding whether s 15A(4)(b) applied so as to require the licensed premises to be “regarded as falling within the boundaries of a shopping complex”, the issue was whether the Commissioner’s opinion, that the licensed premises were not “so linked to or integrated with the complex that they may properly be regarded as forming part of the complex”, was formed reasonably upon the material before him.
As to the first of those questions, the Judge seems to have accepted that the Club premises and the RPC were a “cluster of premises” for the purposes of the definition of a “shopping centre.” He was satisfied also that the parking areas around and contiguous to the RPC and the Club premises were “grounds of the centre”, for the purposes of sub-par (b) of the same definition. He said there was insufficient evidence to satisfy him that that cluster of premises was “promoted as, or genuinely regarded as constituting, a shopping centre.” It is true that there seems to have been no evidence about how the “cluster” was promoted, although as the Club had only very recently established itself there, it might have been difficult to find such evidence. The Judge seems not to have taken the approach that it was for him to decide how the cluster would be “generally regarded”, drawing on his own observations and experience.
The result of this was that the Club premises and the RPC did not together constitute a “shopping centre” as defined. I gather that if the Judge had so concluded, he would have concluded that together they were a “shopping complex”, and that because the Club premises were part of the shopping centre they were necessarily “within the boundaries of a shopping complex” for the purposes of s 15A(1)(b).
The Judge then turned to the second question, arising under s 15A(4). For this purpose he confined himself to the material before the Commissioner.
I gather that he treated the RPC building as a “shopping centre” (which it clearly was) surrounded by “parking and other areas adjacent and ancillary to, and intended primarily for the use of persons attending ...” the RPC. Once again, I did not understand it to be disputed that the parking areas to the west, north and east of the RPC met this description. Accordingly, I do not understand it to be disputed that the RPC building together with these areas constituted a “shopping complex” as defined in s 15A(5).
It was also common ground that just north of the Club premises, there was a common boundary between the land on which the Club premises were situated and that complex.
It therefore became critical for the Judge to determine whether the Commissioner had properly formed the opinion that the Club premises were not “so linked to or integrated with the [RPC] complex that they may properly be regarded as forming part of the complex.”
The Judge agreed with the Commissioner’s findings that there was a “common ingress and egress” point for vehicles using the RPC and the Club premises; that there was nothing to prevent pedestrians moving from the Club to the RPC and vice versa; that there would be people who would use both premises; that patrons of the Club would park in either the RPC parking areas or the Sefton Plaza parking areas, and that people would go to the parcel of land for a range of activities. The Judge noted that the Commissioner had said that the RPC building and the Club premises “definitely do not appear to be one”, which as a statement of fact is clearly correct. However, the Judge said that while they were “quite different in character”, both were “commercial premises”, and he did not consider that the difference in appearance was of much significance.
Viewing the matter in the context of the evidence as a whole, the Judge said that that evidence clearly demonstrated “such a degree of linkage or integration” as to satisfy sub -par (b) of s 15A(4). The Commissioner’s contrary opinion “could not reasonably be formed on the material before him.” The Judge was particularly influenced by the proximity of the RPC and the Club premises; by the fact that both buildings were on the parcel of land described by me and surrounded by four roads, and by the other factors just mentioned in relation to which he agreed with the Commissioner. He also put some reliance on the sign headed “Roosters On Plaza”, which he said reflected a “common perception” that the Club premises were on land linked to the RPC.
Accordingly, the Judge held the grant of the licence void.
The Licensing Court Decision
Mr Beasley QC, counsel for the Club, submitted that the Tavern’s failure to seek relief in relation to the decision of the Licensing Court, dismissing the appeal from the Commissioner’s decision, was an obstacle to success before the Judge. It is convenient to deal with that point here.

I do not accept this submission. The licence was granted by the Commissioner. The prohibition in s 15A operates on the Commissioner’s decision. If the Commissioner lacked power to grant the licence, the dismissal of an appeal against that decision is neither here nor there.
There is no estoppel binding the Tavern as a result of the Licensing Court decision. That must be so, because otherwise the manner in which the parties have conducted the proceedings would prevent this Court from determining whether or not the Commissioner had power to grant the licence.
I would grant to the Club leave to amend the grounds of appeal to add proposed ground 10 raising this point, but would reject this ground of appeal.
Standing and discretion
No point was taken before us, or before the Judge as far as I can tell, as to the competence of the Tavern to bring these proceedings without the Attorney-General’s fiat. In the proceedings the Tavern invokes the equitable jurisdiction of the Court to restrain an apprehended breach of the law by the Commissioner, and to declare the Commissioner’s obligations under the Act. The Tavern does not try to enforce a private right: see Enfield at [17]-[23]; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (1999) 200 CLR 591 at [97]-[98], Gummow J.
As no point was taken, I am prepared to assume that the Tavern has a sufficient interest to support the grant of equitable relief: see Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49; (1998) 194 CLR 247 at [42]-[48] Gaudron, Gummow and Kirby JJ. Relevant matters are the participation of the Tavern in the proceedings before the Commissioner and on appeal in the Licensing Court, and the fact that it is a trading competitor. It is not necessary to decide if these matters suffice.
Nor was it argued that there were discretionary reasons why relief should be refused.
Jurisdictional Fact
Mr Beasley submitted that s 15A(4)(b) does not raise an issue going to the Commissioner’s jurisdiction or, as I prefer to put it, affecting the existence of the Commissioner’s power to grant a licence and the validity of a grant. He appeared to accept that s 15A(1) did raise an issue going to power and validity.
Mr Beasley’s submission rested on the unlikelihood of Parliament making power and validity depend on a matter of opinion, particularly an opinion on a matter as subjective and indefinite as an opinion of the kind identified in s 15A(4)(b).
The issue that arises is one of statutory interpretation, that task to be undertaken in the light of established authority.
Section 15A(1) is expressed in emphatic terms. The Commissioner “cannot” make a grant in the stated circumstances. If any emphasis is needed, it is found in s 15(2), which makes a grant contrary to the prohibition “void and of no effect.”
The relevant prohibition is found in s 15A(1). It would be a curious outcome if the prohibition went to power and validity when it arose on a direct application of subsection (1) and subsection (5), but not when it arose through the medium of subsection (4).
In my view the prohibition does go to power and validity, despite the potential inconvenience of conditioning the availability or existence of an administrative power on a state of facts. Parliament has made its intention clear. This has the consequence that in the event of a challenge to power, a superior court must later determine those facts for itself. Moreover, the court will not be limited to the evidence before the administrative authority.
Assuming for present purposes that subsection (4) extends the reach of s 15A(1), the fact remains that it provides but another route by which one reaches the conclusion that the prohibition applies. That being so, to my mind there can be no doubt that it raises an issue going to power and validity, even though it is an issue which involves the formation of an opinion on a matter on which minds and opinions might easily differ.
That being so, the Judge correctly held that he had to decide for himself whether the prohibition in s 15A(1) arose. To the extent that the answer to that question depended on whether subsection (4) brought the case within the prohibition, and to the extent that that in turn depended upon an opinion formed by the Commissioner, the issue became whether that opinion was validly formed. This is a matter on which the High Court has identified the approach to be taken.
In Foley v Padley (1984) 154 CLR 349 the Court was concerned with a power to make a by-law that depended on the Council being of the opinion that the activity effected was “likely to affect the use or enjoyment of” a shopping mall. The validity of a by-law was attacked when Mr Foley was charged with a breach of the by-law. Brennan J said (at 369 – 370):
“Where the power to make a by-law depends upon the formation of an opinion, the opinion must be reasonably formed if the power is to be validly exercised. As Latham CJ said in R v Connell; Ex parte Hetton Bellbird Collieries Ltd ((1944) 69 CLR 407, at p 430):
‘ … where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts.’
The question for the court is not whether the Court would have formed the opinion but whether the repository of the power could have formed the opinion reasonably. Although the area of judgment that a court must leave to a repository of power is not unlimited, as allegation of unreasonableness in the formation of an opinion may often prove to be no more than an attack upon the merits of the by-law made in purported exercise of the power.”
The need to distinguish the question of whether the opinion could have been formed reasonably, from the question of whether the Court itself would have formed the opinion (that is, from the merits) has been emphasised in a number of cases. In The Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297 the Commission had power to enter a place on the Register of the National Estate if the Commission considered that a place should be so recorded. The Court held (at 303) that the authority to enter the place on the Register:
“ … is one of that category of laws whose operation is made conditional upon the opinion or satisfaction as to certain matters of a designated authority or person, with the consequence that the merits of the matter are not examinable upon judicial review. There is no reviewable error simply in making a wrong finding of fact.” [Footnote omitted.]
Although the merits of the matter were not examinable, and the wrong finding of fact did not give rise to a reviewable error, as the Court went on to explain judicial review was available “at general law”. The grounds of such review included those identified by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118 – 119 where Gibbs J said:
“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”
In Enfield, Gleeson CJ, Gummow, Kirby and Hayne JJ considered a statutory provision that provided that a development consent “must not be granted” if the development was a “non complying development”, unless certain specified conditions were met. They concluded that the relevant criterion was whether the development was in fact “non complying”, and not whether the planning authority was of that opinion. Drawing on the cases just referred to, and other cases to like effect, they said at [34]:
“Had 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. But that is not what s 35(3) involves. It stipulates in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent.” [Footnote omitted.]
In the light of that line of authority the Judge was right to hold that he could interfere only if the Commission’s opinion was not formed reasonably upon the material before the Commissioner, or if it was shown that the Commissioner’s opinion was so unreasonable that no reasonable person could properly have arrived at it. The cases treat these formulations as equivalents. Alternatively, and perhaps more accurately, the issue for the Judge was whether, acting reasonably, on the material before him the Commissioner could properly have arrived only at the opinion that the premises were “so linked to or integrated with the complex that they may properly be regarded as forming part of the complex”. In this context, I do not mention the other grounds of review identified in the cases, because it was not suggested that any of them applied. That is subject to one point to which I will come in due course.
Did the Judge err?
I approach this issue on the basis that s 15A should be interpreted liberally. The purpose of the provision would not be advanced by a narrow interpretation. The intention to give the prohibition a wide reach is reinforced by the fact that in s 15A(4) Parliament has included licensed premises that are not strictly within the boundaries of a shopping complex, but share a common boundary with the complex and have a particular relationship with the complex. Anyone with some knowledge of shopping centres would understand the difficulty of defining what is a shopping centre, and of identifying the boundaries of one. Difficulty of definition is not an excuse for loose interpretation or application. However, the fundamental point is that the provision is not to be applied in a narrow fashion.
In this respect it appears to me, although nothing was made of it in argument, that the Commissioner possibly erred in law. He noted a submission to him that he should give the provision a liberal interpretation. He referred to the Second Reading Speech on the introduction of the amendment that added s 15A, and a statement by the Minister that it was unacceptable that “household money set aside for staples” should be diverted to gaming. He then said that would not happen in the case before him, because the Club patrons would not be customers of Regency Plaza, drawn to the Club. He referred to the fact that the Club premises were about 100 metres from the main entrance to the Regency Plaza. He noted that the Tavern, with its gaming machines, was already part of the RPC.
It was not for the Commissioner to decide whether or not shoppers attending RPC would be attracted to the Club premises. Parliament has created a prohibition based on the location of licensed premises, having made the judgment that that location was undesirable. To the extent that the Commissioner’s conclusion was based on reasoning that the undesirable social consequence would not occur in the present case, he erred as a matter of law. However, as this point was not argued or relied upon by the Judge, I leave it there, and do not found my own decision on it.
As the Judge based his decision on the application of s 15A(4) I turn to that provision. As I have indicated, I agree that the RPC Building is a “shopping centre”, and that on its western, northern and eastern side are “parking and other areas adjacent and ancillary to, and intended primarily for the use of persons attending …” the RPC. I agree that there is a common boundary between the land on which the licensed premises are situated and the “shopping complex” comprising the RPC and the parking areas.
There are matters that point quite strongly to the conclusion that the Club premises are “so linked to or integrated with the complex that they may properly be regarded as forming part of the complex” founded on the RPC. The Club and the RPC are on the one readily identifiable parcel of land. At the common boundary referred to is a shared entrance and exit point for people using the RPC and for people using the Club premises. There is no impediment to the movement of vehicles and people between the RPC and the Club premises. The distance from the Club premises to the nearest entrance to the RPC is of the order of 100 metres, but for patrons parking on the western side of the RPC the distance between the entrance to the RPC and an entrance to the Club premises is not significant. There is no visual barrier between the RPC and the Club premises. Each of them displays a frontage to Main North Road. The Club premises would appear convenient and readily accessible to persons entering the RPC from Main North Road, and particularly to persons parking on the western side of the RPC. I do not consider that anything much turns on the fact that the Club premises are physically separate from the RPC, and different in style. Nor does anything much turn on the fact that the shops in the RPC are all under the one roof. In expressing these views I have focussed on the shared common boundary, and have not relied on the possible argument that south of the RPC and to the east of the Club premises is another shared boundary with an area that could be regarded as part of the “shopping complex” constituted by the RPC.
Were it for me to form my own opinion, I would conclude that the present case fell within s 15A(4)(b). I consider that the Commissioner erred as a matter of fact in putting the weight that he did on the difference in appearance of the two buildings, and in putting the weight that he did on the limited common patronage of the RPC and the Club premises. The fact that the Tavern was established in the RPC, and that its gaming machines might attract the public, rather than those of the Club, is not significant. Parliament has based its prohibition on location and how the premises might be regarded, not on the likelihood of patrons being attracted to the Club.
I agree with the Judge that the three expert witnesses who were called by the Tavern did not add much. To some extent their evidence focussed on planning considerations, which in my view are not of much relevance here. To some extent, also, they appear to have given purported expert evidence on matters of fact that required and involved no expertise at all. But I agree with the Judge’s conclusion that, looking at the evidence as a whole, the linkage and integration of the licensed premises with the RPC “shopping complex” was such that the licensed premises could “properly be regarded as forming part of the complex”. I recognise that there is an element of impression in this, but I bear in mind that the Judge had the benefit of a view to enable him to understand the evidence tendered before him and tendered before the Commissioner.
I add that in my opinion, the word “so” when used in sub-paragraph (4)(b) is not used as a matter of emphasis, but rather in the sense of “in such a way”.
I also agree that the Judge was entitled to have regard to what he called the “common perception” of the situation. He was entitled to consider, in the light of everyday experience, whether people visiting the RPC and the “shopping complex” would regard the licensed premises as part of the complex, having regard to the link between them and such integration as there was. In this respect, Parliament was surely concerned with the question of whether, when there is a common boundary, the licensed premises are linked or integrated with the shopping complex in such a way as to facilitate and encourage movement of the public, and patrons in particular, between the complex and the premises by creating the impression that they are part of one complex. The matters to which I have referred indicate that members of the public visiting the RPC would regard the licensed premises as conveniently and readily accessible, and would regard them as part of the overall complex.
I also add that this is not a matter on which, in my opinion, the Commissioner had relevant expertise. It is a matter of applying the statutory provisions, which are not without their difficulty, to the facts. The issues that arise do not call for specialised knowledge. They do not involve the forming of an opinion which the Commissioner would often form and on which he would often hear, in evidence or otherwise, informed comment, such as an opinion on the suitability of certain types of premises for certain activities, or an opinion on the sufficiency of security measures. For that reason it is easier for a court to find that the Commissioner’s opinion was not formed reasonably. On the other hand, I recognise that the issue that the provision presents is one on which minds might differ: see Buck v Bavone at 118 – 119; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [137] Gummow J.
I agree with the Judge’s conclusion on the application of the provision. I come to the ultimate question of whether, acting reasonably, the Commissioner must have reached the same conclusion as the Judge did. I do not find this issue an easy one to decide.
This is what the Commissioner said:
“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.”
I consider that acting reasonably the Commissioner should have formed the relevant opinion because, to my mind, all of the material points towards the formation of that opinion. The matters relied upon by the Commissioner as reasons not to form the opinion are of no substance. I also consider that the Commissioner gave undue weight to the appearance of the two buildings and to the issue of common patronage, as distinct from the issue of how the Club premises would be regarded, Parliament having made the judgment that if they were to be regarded in a certain way the prohibition arose. It is not just a case in which the Commissioner erred. He came to a conclusion that was not reasonably open to him on the facts.

For those reasons, I consider that the Judge was correct. I would dismiss the appeal.
Alternative Contention
I have decided that the licensed premises share a common boundary with the shopping complex founded on the RPC, and that the other requirements of subs (4)(b) are met.
Can it be said as well that the licensed premises and the RPC together constitute a “shopping complex” and that the licensed premises are within the boundaries of that complex for the purposes of subs (1)(b)?
I begin with the definition of “shopping centre”, and consider its application to the licensed premises and to the RPC taken together. The requirements of subpar (a) are met. There is a difficulty with subpar (b). This provision refers to “the grounds of the centre”, yet the issue is whether the two premises taken together are a “shopping centre.” As the Judge observed, there appears to be an element of circularity here. It may be that the answer lies in considering the requirements of subpar (c) first. The Judge concluded that the requirements of this provision were not met. I agree that there was virtually no evidence as to how the “cluster of premises” was promoted. But there was evidence on which one could conclude that the premises were “generally regarded as constituting, a shopping centre …” I consider that the evidence before the Judge pointed to this conclusion, because of the shared access and exit points, because of the convenience of the parking area on the western side of the RPC to both premises, because of the ease of movement for pedestrians and motor vehicles in the area between the two premises and because, in my opinion, members of the public would tend to think of the buildings on the one parcel of land as part of the one Centre. However, the Judge has had the advantage of viewing the site. As well, while I see more force in this argument than did the Judge, I am not prepared to say that he was wrong in reaching the conclusion that he did. Accordingly, while I continue to have some doubts about an approach which treats “the grounds of the centre” as embracing the parking area on the western side of the RPC, it is not necessary to decide that point because I am not satisfied that the Judge erred in deciding that the requirements of subpar (c) were not met. The difficulty in relation to “the grounds of the centre”, lies in treating parking areas, separately referred to in the definition of “shopping complex”, as already covered by the expression “grounds of the centre”.
It was not argued that the Club premises and Sefton Plaza constituted a “shopping centre” and also a “shopping complex”, and accordingly it is not necessary to consider this argument.
For those reasons I would not disturb the Judge’s conclusion that the licensed premises were not “within the boundaries of a shopping complex” for the purposes of s 15A(1)(b).
Conclusions
For those reasons I would dismiss the appeal.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.
BLEBY J:I agree with the Chief Justice and with his reasons for holding that the trial Judge was correct in concluding that the conditions of s 15A(4)(b) of the Gaming Machines Act 1992 were met, and that for that reason the first respondent was entitled to the declaration it sought.
That was because, in the first place, the land on which the appellant’s premises are situated shares a common boundary with the shopping complex (as defined) based on the building known as the Regency Plaza Shopping Centre. There can be no doubt that that building, together with its northern, eastern and western car parks, comprise a shopping complex as defined, whether or not it also forms part of a larger shopping complex.
In the second place, it was not reasonably open to the Commissioner to form the opinion that the club premises were not so linked to or integrated with that shopping complex that they may properly be regarded as forming part of that complex. It follows that, for the purposes of s 15A(1), the premises were to be regarded as falling within the boundaries of that shopping complex, even if in fact they did not.
That is enough to dispose of the appeal. I incline to the view that the trial Judge was correct in holding that the appellant’s premises did not form part of a wider shopping complex which included the Regency Plaza Shopping Centre, but in the circumstances I think it is unnecessary to address that question, which was the subject of a notice of contention by the first respondent. Indeed, there is an assumption behind subsection (4) that premises which meet the criteria of that subsection are not in fact part of the same shopping complex, otherwise the subsection would be unnecessary.
At all events, if the premises meet the wider statutory test of being regarded as falling within the boundaries of the Regency Plaza shopping complex of which it is not part, it is not necessary to determine whether the boundaries of the shopping complex in fact extend to include the appellant’s premises.
I agree that the appeal should be dismissed.

[2003] SASC 103

11 April 2003