Tourist Accommodation Pty Ltd v Independent Liquor and Gaming Authority

Tourist Accommodation Pty Ltd (the Applicant) sought judicial review of a decision by the Independent Liquor and Gaming Authority (the Authority) to refuse its application for an increase in the number of gaming machines at its premises. The Authority’s refusal was based on its finding that the proposed increase was not associated with a "positive contribution to the local community" as required by s 36(3)(c)(i) of the *Gaming Machines Act 2001* (NSW). The Applicant also challenged the Authority’s decision on other grounds, including the consideration of irrelevant factors under s 36(3)(e) of the Act.

The primary legal issues before the Court of Appeal were whether the Authority had denied the Applicant procedural fairness by failing to inform it of the specific quantum of a community benefit payment that would satisfy the statutory requirement, and whether the Authority was obliged to approve the local impact assessment subject to the payment of such a sum. Additionally, the court considered whether the Authority had impermissibly treated the Applicant’s Class 1 local impact assessment as a Class 2 assessment and had improperly considered the potential "funnelling effect" of gaming machines across adjacent venues with extended opening hours.

The Court of Appeal held that the Authority was not obliged to inform the Applicant of the precise amount of a community benefit payment required, particularly as the relevant guidelines provided a formula for its calculation. The Authority had, in fact, informed the Applicant that its proposed payment was insufficient, which was considered adequate notice. The court found no denial of procedural fairness. Furthermore, the court determined that the Authority had not erred in its statutory construction or in its consideration of relevant and irrelevant factors, concluding that the Authority had acted within its powers and had not treated the assessment as a Class 2 assessment.

Leave to appeal was granted in relation to most grounds, but the appeal was ultimately dismissed with costs.