First Sovereign Trust Limited v Secretary of Internal Affairs

[2014] NZHC 1689

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-5861 [2014] NZHC 1689

UNDER

the Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER

of an application for judicial review

BETWEEN

FIRST SOVEREIGN TRUST LIMITED Applicant

AND

SECRETARY OF INTERNAL AFFAIRS First Respondent

THE GAMBLING COMMISSION Second Respondent

Hearing:	17 July 2014
Counsel:	F M R Cooke QC and S Cottrell for Applicant S V McKechnie for First Respondent C P Browne for Second Respondent
Judgment:	18 July 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 18 July 2014

at 11.00 am, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

GCA Lawyers, Christchurch for Applicant

Crown Law, Wellington for First Respondent

FIRST SOVEREIGN TRUST LIMITED v SECRETARY OF INTERNAL AFFAIRS [2014] NZHC 1689 [18 July 2014]

[1]      The applicant is licensed under the Gambling Act 2003 (the Act) to conduct Class 4 gambling in accordance with the Act.  Briefly, the activities for which the applicant  is  licensed  involve  the  operation  of  gaming  machines  or  “pokies”  at licensed venues.   The applicant’s predecessor, First Sovereign Trust (FST) commenced operations in  this regard in 2003.   The applicant was  subsequently formed to  take over the activities  of FST,  and  was  first  issued  with  a  Class  4 gambling  licence  on  1  March  2011.     Following  this,  FST’s  operations  were transferred to the applicant.

[2]      The  applicant   says   the  licensed  activities   it  carries   on   have   grown significantly since FST was first licensed in August 2003.  It now has 22 venues at which  it  conducts  Class  4  gambling  in  accordance  with  its  licences;  its  gross proceeds from this Class 4 gambling approximate $17 million; and the net proceeds, which are distributed to the community in accordance with the Act, approximate

$6.8 million.  The applicant employs six persons, among them personnel described as  “key  persons”.    The  Chief  Executive  Officer,  Mr Kerry  Bird,  has  sworn  an affidavit in support of the application before the Court.

[3]      Class 4 operators’ licences are issued by the Secretary for a period of up to

18 months under s 53 of the Act.  Under s 56(6) of the Act a licence continues in full force and effect until a decision by the Secretary on a renewal application.   On

25 September 2012, the applicant applied for a renewal of the Operator’s Licence,

granted to it on 1 March 2011.

[4]      On 23 January 2014, the applicant was advised the Secretary had decided not

to renew its Class 4 Operator’s Licence.

[5]      The  applicant  then  lodged  an  appeal  to  the  second  respondent  (the Commission) against the decision of the Secretary.  By operation of s 62(2) of the Act, the applicant’s licence remains in force and effect until the outcome of that appeal.

[6]      The applicant has also filed an application for judicial review of the decision of the Secretary on a number of grounds: failure to decide in accordance with law;

failure to take into account mandatory relevant considerations; abuse of process;

failing to find consistently with s 52(4) of the Act; and errors of law.

[7]      The applicant will need to exhaust its right of appeal before proceeding with its application for judicial review.  On a preliminary view, both the application for judicial review and the associated application for interim relief appear somewhat anticipatory in nature.   However, any consideration of whether that is so has now been superseded by a pragmatic and responsible solution in relation to interim relief, reached   after   discussion   between   the   applicant   and   the   Commission.   The Commission has undertaken to notify the parties of the date of delivery and outcome of its decision at least 15 working days prior to delivery.

[8]      I record here that the possible outcomes of the Commission’s decision under the Act are confirmation, variation or referral back to the Secretary.

[9]       In  the  event  that  the  Commission’s  decision  will  be  to  confirm  the Secretary’s decision, the 15 day prior notification period will allow the applicant sufficient  time  to  consider  whether  or  not  to  proceed  with  a  judicial  review application without the necessity of first having to seek urgent interim relief from this Court to preserve its position pending a decision being taken on that.  It will also avoid the possibility of disruption to the operation of the Class 4 gambling activities conducted by the applicant which would occur if it immediately had to cease operation on no notice.

[10]     In the meantime, both the application for interim relief currently before the

Court and the application for judicial review of the Secretary’s decision (CIV-2014-

485-5861) are adjourned sine die.

[11]     I record Ms McKechnie’s advice that the first respondent was obliged to instruct counsel for the interim relief hearing today and to prepare accordingly, including the filing of full submissions. At Ms McKechnie’s request on behalf of the Secretary, the question of costs on this application is reserved.

Goddard J