Yeronga Services Club Inc v Office of Liquor and Gaming Regulation
[2012] QCAT 290
•9 July 2012
| CITATION: | Yeronga Services Club Inc v Office of Liquor and Gaming Regulation [2012] QCAT 290 |
| PARTIES: | Yeronga Services Club Inc (Applicant) |
| v | |
| Office of Liquor and Gaming Regulation (Respondent) |
| APPLICATION NUMBER: | GAR075-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | N Jarro, Member |
| DELIVERED ON: | 9 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | It is declared that the Tribunal does not have jurisdiction to review the application. |
| CATCHWORDS: | GAMING MACHINE LICENCE – surrender and/or cancellation – jurisdiction of the Tribunal Gaming Machine Act 1991, ss 29, 55, 78, 96, Schedule 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s.32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
REASONS FOR DECISION
This application emanates from a letter of the Office of Liquor and Gaming Regulation (“the respondent”) on 15 December 2011 which advised the Yeronga Sports Club Inc that by operation of s 78(5) of the Gaming Machine Act 1991 (“the Act”), the permanent entitlement transfer of entitlements to Sherwood Services Club Inc became invalid upon a licence approval in favour of the Yeronga Football Club Inc on 25 October 2011. The applicant seeks a review of the respondent’s decision which has been summarised by it in its application as the “transfer of gaming entitlements from Yeronga Sports Club without approval of the [Yeronga Sports Club]”.
A preliminary matter has been raised concerning the jurisdiction of this Tribunal. On 21 March 2012, Senior Member O’Callaghan made directions for the parties to provide submissions as to whether the Tribunal has jurisdiction to review the decision the applicant seeks to be reviewed.
Background
In order to determine this issue, it is necessary to briefly consider some of the factual circumstances surrounding this matter.
Yeronga Sports Club Inc was formed by a partnership between Yeronga Services Club Inc and Yeronga Football Club Inc to, inter alia, promote, encourage and further the game of Australian Rules Football and to assist and cooperate with Yeronga Services Club Inc and the Yeronga Football Club Inc in their endeavours to develop their club activities, operation and presence in the area.
Yeronga Sports Club Inc held the gaming machine licence from 13 June 2007 until 25 October 2011. Prior to this, the Yeronga Football Club Inc held the gaming machine licence from 17 August 1996 until 13 June 2007.
In December 2010, Yeronga Services Club Inc notified the respondent of its intention to wind up the operations of the Club and sell the assets.
In January 2011, the respondent advised Yeronga Services Club Inc that it may wish to surrender its gaming licence (which was the licence which entitled it in conjunction with its liquor licence to hold 23 gaming machine authorities).
Yeronga Services Club Inc had entered into an informal agreement with the Sherwood Services Club for the sale of 16 entitlements for $7,000 per entitlement, and Yeronga Services Club Inc proposed to purchase the other 7 entitlements.
By letter dated 12 July 2011, Yeronga Services Club Inc notified the respondent of its intention to surrender its gaming machine licence. That notification of surrender was requisitioned by the respondent and by letter which was emailed to the respondent on 26 July 2011. In the notification of surrender of the gaming machine licence (which was forwarded on 26 July 2011) Yeronga Services Club Inc nominated 29 June 2011 as the date for the surrender to take effect.
Whether this Tribunal has jurisdiction falls to be determined according to s 29 of the Act. It is to be acknowledged that pursuant to ss 9 and 10 of the QCAT Act, the Tribunal has original jurisdiction, including jurisdiction conferred upon it by an enabling Act. The Tribunal also has a review jurisdiction and may do all things necessary or convenient for exercising its jurisdiction. In accordance with s 17 of the QCAT Act, the Tribunal’s review jurisdiction is the jurisdiction conferred on it by an enabling Act to review a decision made or taken to have been made by another entity under that Act. In exercising its review jurisdiction, the Tribunal is required under s 19 to decide the review in accordance with the Act and the enabling Act under which the reviewable decision being reviewed was made.
In the present instance, the enabling Act is the Gaming Machine Act 1991. Specifically s 29 of the Act largely identifies schedule 1 as those decisions or determinations which may be reviewed by the Tribunal. For example, reviewable decisions include: decisions concerning the refusal of gaming licences; limiting the number of gaming machines; fixing hours of gaming for premises; the imposition of conditions on a gaming machine licence; suspending or cancelling licence; refusing to renew a gaming machine licence and so on.
Applicant’s submissions
The gravamen of the applicant’s complaint seems to be twofold albeit related to the same issue. The first is that the applicant is aggrieved by the respondent’s letter of 15 December 2011 which advised that the permanent transfer of gaming machine entitlements from Yeronga Sport Club Inc to Sherwood Services Club Inc became invalid upon the licence approval given to Yeronga Football Club Inc. Secondly, the applicant is aggrieved because the transfer of the gaming machine entitlements was given without the applicant’s approval.
The applicant submits that the Tribunal has jurisdiction to review the decision. The applicant submits that it is either directly or indirectly aggrieved by the decision because “in reality [it] is jointly Yeronga Services Club Inc and Yeronga Sports Club Inc” and:
a)the respondent has failed to successfully explain the reason an application to surrender a gaming machine licence made by Yeronga Sports Club Inc was not processed;
b)the respondent has failed to successfully explain why it denied receiving the surrender notification.
The applicant relevantly submits as follows:
a)In December 2010, it notified the respondent of its intention to wind up the Club and sell the assets, so that the respondent was entitled to believe that unless the licence was transferred, it would be cancelled and the benefit of that licence would be lost to that locality.
b)In January 2011, the respondent advised the applicant that it may wish to surrender its gaming licence (which was the licence which entitled it, in conjunction with its liquor licence, to hold the 23 gaming machine authorities).
c)The applicant had entered into an informal agreement with the Sherwood Services Club Inc for the sale of 16 entitlements for $7,000 per entitlement, and it proposed to purchase the other 7 entitlements.
d)By letter dated 12 July 2011, the applicant notified the respondent of its intention to surrender its gaming machine licence. The notification of surrender was requisitioned by the respondent and by letter which was emailed to the respondent on 26 July 2011. The applicant submits that the requirements of the Act were satisfied and a formal notification of surrender of the gaming machine licence was thereby lodged with the respondent on 26 July 2011 (ie the date of the email).
e)In the notification of surrender of the gaming machine licence, the applicant nominated the date of 29 June 2011 as the date for the surrender to take effect. The respondent did not accept an earlier surrender date.
f)Section 95(1) of the Act provides that a licensee may at any time surrender the licensee’s gaming machine licence by giving the Chief Executive a notice in the approved form and (by s 95(10)) further provides that the surrender of the gaming licence takes effect on the latter of:
i) the nominated day of the surrender of the licence; or,
ii) the day immediately following the ‘clearance’ date for the surrender of the licence.
g)It was submitted that by virtue of s 95(11) the surrender of the applicant’s gaming machine licence would therefore have taken effect on 26 October 2011.
h)The applicant was awaiting the surrender coming into effect before taking action to transfer the operating authorities. Prior to doing so, however, other events were said to have intervened, namely:
i) the respondent notified the intention on the part of the applicant to surrender its gaming licence and referred to an application by Yeronga Football Club Inc to itself obtain a gaming machine licence in respect of the same premises dated 28 July 2011;
ii) in the same letter, the respondent identified that the circumstances for the grant (transfer) of the liquor licence to Yeronga Football Club Inc appeared to exist and that Yeronga Football Club Inc had an extant application for a gaming machine licence which it had indicated it did not intend to withdraw.
i)The letter of 28 July 2011 concluded, amongst other things:
“As such, the Office of Liquor and Gaming Regulation proposes to give priority to the process of the liquor transfer and gaming machine licence application submitted by the [Yeronga Football Club] received in the OLGR on 30 July 2010. On completion of our investigations, the gaming machine licence application will be presented to the Queensland Liquor and Gaming Commission for determination.
j)The applicant submits that it therefore appears from this letter (which was sent after the notification of surrender) that the respondent was determined to progress the Yeronga Football Club Inc application and that the applicant would not have succeeded in its endeavours to have the date of surrender brought forward in any way that may have affected those actions.
k)The liquor licence was transferred to the Yeronga Football Club Inc on 26 October 2011.
l)According to the applicant, the critical issue is that it is asserted by the respondent that upon the happening of these events, the gaming machine licence held by the applicant was automatically cancelled under s 96(1) of the Act because of (and on the date of) the transfer of the liquor licence to Yeronga Football Club Inc. The only way that this consequence could be avoided is if the licence was surrendered before the transfer of the liquor licence to Yeronga Football Club Inc and could not therefore be cancelled under s 96(1).
Respondent’s submissions
The respondent placed emphasis on s 29(1) of the Act to support its submission that the applicant has not demonstrated that the decision sought be to reviewed falls within the scope of this subsection sufficient to enliven the Tribunal’s jurisdiction. It contends that it did not make a decision as disclosed by the applicant on 15 December 2011 but accepts that a decision on 25 October 2011 to grant a gaming machine licence to Yeronga Football Club Inc with gaming entitlements which had previously been held by Yeronga Sports Club Inc. Such a decision was made under s 55 of the Act.
The respondent asserts that the application for a gaming machine licence by Yeronga Football Club Inc co-existed with an associated application for a transfer of a liquor licence from Yeronga Sports Club Inc to Yeronga Football Club Inc. The respondent highlighted the application of s 78 of the Act which provides for the procedure where there is an application for a transfer of a liquor licence, and an associated application for a gaming machine licence at the same time.
Further, the respondent states that s 96 of the Act provides that if a liquor licence is cancelled, transferred or surrendered, any associated gaming machine licence is cancelled. The existing gaming machine licence held by Yeronga Sports Club Inc was cancelled when the transfer of liquor licence occurred, allowing for the grant of a new gaming machine licence to Yeronga Football Club Inc and transfer of gaming entitlements.
The decision was to grant a gaming machine licence. The circumstances of the matter included an associated transfer of a liquor licence under s 113 of the Liquor Act 1992. This fulfilled the requirements for the mechanism in s 78 of the Gaming Machine Act 1991 by which both the transfer of the liquor licence and the grant of the gaming machine licence occur at the same time. As part of this process, s 78(5) operates such that gaming entitlements are transferred to the new licensee, as the licence under which they were previously held is cancelled by s 96.
It further submitted that the mechanisms in the Act which operated in this matter, namely ss 78 and 96, were not reviewable by the Tribunal.
Discussion
Rightly so the applicant is disgruntled about the respondent’s decision to grant a gaming machine licence to Yeronga Football Club Inc. The decision was made pursuant to s 55 of the Act. In order to seek to review that decision, the applicant is required to demonstrate that it meets the requirements of s 29 of the Act.
I find that s 29(1) does not apply to the applicant in the present instance because whilst the applicant is able to demonstrate that it was a holder of a gaming machine licence (through Yeronga Sports Club Inc) and that it is aggrieved by the respondent’s decision to grant a licence to Yeronga Football Club Inc, it is unable to demonstrate how the decision falls within Schedule 1, Part 1 of the Act, namely the refusal to grant a gaming machine licence. The wording of the legislation is plain and unambiguous. Although s 55 of the Act permits the Queensland Liquor and Gaming Commission power to grant or refuse to grant gaming machine licences, Schedule 1, Part 1 of the Act makes it clear that an aggrieved party can only seek to review a decision concerning the refusal to grant a gaming machine licence.
Despite the applicant’s complaint, there is no requirement under the Act for the applicant’s approval to be given to transfer of the gaming machine entitlements.
Under s 77 of the Act, a gaming machine licence cannot be transferred to another person or to other premises. This does not give rise to a reviewable decision for the purposes of s 29 of the Act.
Further, decisions made under s 78 of the Act have not been deemed by the legislature to be a reviewable decision for the purposes of s 29 of the Act.
In addition any breach of s 95 of the Act gives rise to penalty provisions not reviewable decisions within the jurisdiction of this Tribunal.
I was not directed nor am I able to find the present application falling within the ambit of any of the remaining provisions in s 29 of the Act; including for instance the applicability of s 97(16)(d) as the applicant was not issued with a notice to show cause.
In those circumstances the Tribunal is unable to review the respondent’s decision.
Order
It is declared that the Tribunal does not have jurisdiction to review the application.
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