Ilt Foundation v Secretary for Internal Affairs

[2013] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-000339 [2013] NZHC 1330

UNDER  the Declaratory Judgments Act 1908

IN THE MATTER             of an Application relating to the consideration of ss 4, 92 and 94 of the Gambling Act 2003

BETWEEN  ILT FOUNDATION Plaintiff

ANDTHE SECRETARY FOR INTERNAL AFFAIRS

Defendant

Hearing:                   30 May 2013

Counsel:                  C W Ward for Plaintiff

J S Andrew for Defendant

Judgment:                6 June 2013 at 3.00 pm

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      The ILT Foundation has a “class 4 venue licence” (venue licence) granted under s 8 of the Gaming and Lotteries Act 1977 and continued by s 92 of the Gambling Act 2003 (the Act) which allows it to operate 18 gaming machines at the Waikiwi Tavern in Invercargill.

[2]      The tavern is owned by a Trust which wishes to construct a new tavern building on land that is currently separated by just one section from the land on which the tavern currently sits.   However, these plans  will only proceed if the

existing venue licence applies to the new tavern building.  The reason for this is that

ILT FOUNDATION v THE SECRETARY FOR INTERNAL AFFAIRS [2013] NZHC 1330 [6 June 2013]

the Act only permits nine gaming machines to be operated under a new venue licence.

[3]      The question I have to answer is whether the new tavern building will be the same venue as the existing tavern building for the purposes of the venue licence provisions of the Act.

Context

[4]      This question arises in the context of an application for a declaration which the Foundation seeks under the Declaratory Judgments Act 1908.

[5]      Currently the tavern is situated at 35 Gimblett Street, Waikiwi.  The tavern is the only tavern located in Waikiwi.  It is well established and has been trading as a tavern or hotel from 35 Gimblett Street for more than 50 years.  Importantly, and for reasons which I explain in paragraph [11] of this judgment, the Foundation held a venue licence for the tavern on 17 October 2001.

[6]      Next to 35 Gimblett Street is a property owned by Mr Petrie and Ms Jackson. Their address is 23 Gimblett Street.  Next to them is a property owned by D T King

& Co Ltd.  That property is located on the corner of Gimblett Street and North Road

(the corner site).

[7]      The Trust has a conditional arrangement with the owners of the corner site that will involve the demolition of the existing building on the corner site and the construction of a new tavern building on that site.  The current owners of the corner site would rebuild on 35 Gimblett Street.

[8]      If necessary, the Trust will acquire 23 Gimblett Street and amalgamate the titles of 35 and 23 Gimblett Street with the title to the corner site.   Once the new tavern building is constructed the Trust would recreate the title to 23 Gimblett Street and return it to its present owner while the title to 35 Gimblett Street would also be recreated and transferred to the current owners of the corner site.

[9]      None of these steps will be pursued unless the existing venue licence will apply to the tavern when it is rebuilt on the corner site.   Neither the Trust or the Foundation wish to risk losing the benefit of nine gaming machines, as a result of a new venue licence being issued in relation to the tavern once it is rebuilt on the corner site.

[10]     Applications for venue licences are regulated by ss 65 and 66 of the Act. Section 65(2) sets out 12 matters that an applicant must submit to the Secretary in support of a venue licence. Those matters include:

(a)       a description of the venue and its location ...”

[11]     Under s 92 of the Act, the holder of a venue licence must not operate more than 18 gaming machines at a venue, provided the holder has held the licence since

17 October 2001 and has not ceased to hold that licence for six months or more since that date.  Under ss 93(2) and 94(2) of the Act, the holder of a venue licence issued after 17 October 2001 must not operate more than nine gaming machines at a venue. A venue licence granted in respect of one venue cannot continue if there is a change of venue.   For present purposes, the crucial point is whether a new venue will be created if the tavern is relocated to the corner site necessitating a new venue licence under s 94 of the Act.

[12]     The term “class 4 venue” is defined in s 4 of the Act to mean “a place used to conduct class 4 gambling”.   Thus, the statutory interpretation exercise I have to undertake  includes  deciding  whether  the  corner  site  is  the  same  “place”  as

35 Gimblett Street, for the purposes of the existing venue licence.

[13]     The term “place” is also defined in s 4 of the Act.  It is defined to include:

(a)       a building, structure, or tent, whether fully or partly constructed;

and

(b)      a room in a building or structure;  and

(c)       a court or a mall;  and

(d)      land;  and

(e)       a vehicle, vessel, or aircraft;  and

(f)       a caravan or a trailer or other conveyance.

Appropriateness of declaratory relief

[14]     The Foundation needs to have its understanding of the scope of its existing venue licence confirmed before the Trust embarks on its extensive and expensive relocation plans.   The issue raised cannot be conveniently resolved by any other court proceedings and are very real for the parties.  For these reasons, I conclude that this case fits the perimeters for declaratory relief as explained by McCarthy P in New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd,[1]  and the Supreme

[1] New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at 85: “The Court will not answer purely abstract questions in anticipation of an actual controversy. It will not deal with mixed questions of fact and law. The procedure is designed to provide a speedy and inexpensive method of obtaining a judicial interpretation where the matter in dispute cannot conveniently be brought before the court in its ordinary jurisdiction and where a declaratory judgment would be appropriate relief. But the procedure should not be adopted where the party who institutes them can without real difficulty have the matter in dispute disposed of in an ordinary action”.

Court in Mandic v Cornwall Park Trust Board, when it said:[2]

[2] Mandic v Cornwall Park Trust Board [2011] NZSC 135, [2012] 2 NZLR 194 at [9].

The jurisdiction under the Declaratory Judgments Act enables anyone whose conduct  or  rights  depend  on  the  effect  or  meaning  of  an  instrument, including an agreement, to obtain an authoritative ruling.  In New Zealand, questions concerning the interpretation of rental review provisions of leases have  often  been  addressed  under  the  provisions  of  the  Declaratory Judgments Act, as is illustrated by The Drapery and General Importing Co of New Zealand (Ltd) v The Mayor of Wellington.[3]   Access to the jurisdiction does not depend on there being an existing dispute.  Nor is it necessary that there be a lis.

The meaning of “venue”

[3] The Drapery and General Importing Co of New Zealand (Ltd) v The Mayor of Wellington [1912] NZLR 598 (CA).

[15]     In interpreting the meaning of “venue” as that term is used in a “class 4 venue licence” in ss 92-94 of the Act, I shall first consider the textual meaning of the term “venue” in those sections of the Act.

[16]     The Secretary for Internal Affairs (the Secretary) submits that if the tavern is relocated to the corner site it will have changed its venue.   The essence of the

Secretary’s case is that “venue” equates to a site or an address.  On the other hand,

the Foundation submits that the “venue” in the context of the Act means a facility

that is not necessarily defined by a reference to its physical address.

Textual analysis

[17]     The word “venue” is used synonymously with “place” in ordinary English. Thus, the new Shorter Oxford Dictionary defines “venue” as including “an appointed meeting place ...;  a site or building... ;  a rendezvous”. The term “venue” also has an historical legal meaning as a Norman French term to describe a place where a jury assembled to try cases.[4]

[4] Lesley Brown (ed)  The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, Oxford, 1993) vol 2 at 3562 and Daniel Greenburg (ed) Stroud’s Judicial Dictionary of Words and Phrases (8th ed, Thomson Reuters, London 2012) vol 3 at 3161.

[18]     In this case, the text of the Act is not determinative of the term “venue” because, according to the Act, a “venue” means a “place” and a “place”, for present purposes, includes land and buildings.   It is important to note, however, that the definition of “place” does not specifically include an “address”, thereby indicating that Parliament did not necessarily intend that the term “venue” mean the land or buildings at a specific address.

[19]     Thus, it is possible to conclude that the term “venue” has a wide meaning and that when a building such as the tavern building is relocated to a different site in close proximity to its present address it is still the same venue because:

(1)       the new building will be in a site that is very close to the existing site; (2)     the tavern’s name will be the same;

(3)       the ownership and management of the tavern will be the same;  and

(4)       for all intents and purposes, the patrons of the tavern and the public of

Invercargill will regard the tavern as having retained its venue even if the building is relocated on a nearby site.

[20]     This approach is consistent with two decisions of the Gambling Commission which has dealt with similar issues to those presented in this case.

Isobar decision[5]

[5] Decision on an appeal by New Zealand Community Trust GC 10/05, 26 April 2005.

[21]     In this case, a bar called the Isobar, moved to a new location in the Hornby Mall in Christchurch.  The new location was 75 metres away from the original site and across a road.   It was also located on a different title.   However, the address stated on the licence was “Tuskers Hornby Mall, 416 Main South Road, Christchurch”.   That address remained the same even after the relocation of the

tavern.  In deciding that the venue of the Isobar did not change, the Commission:[6]

[6] At [7.15].

did not place much weight on the fact that the new location of the bar is situated on another certificate of title, or that the land is owned by a wholly owned subsidiary of the entity which owns the original mall complex. While the Commission took such facts into account, ultimately the question of whether the original and new locations of the bar are part of the mall is a question of fact.

Air Rescue Services Ltd[7]

[7] Decision on an appeal by Air Rescue Services Ltd GC 35/11, 11 November 2011.

[22]     In this case the Gambling Commission had to consider whether a relocation of a bar within a shopping mall constituted a change of venue.  Following the Isobar decision,  the  licence  issued  in  relation  to  the  tavern  described  the  venue  by specifying the shop number within the mall in which the bar was located.   The Commission concluded that the relocation of the bar in question within the mall did not constitute a change of venue, even though its location became a different shop number and it was at a different location from that described in the licence.

[23]     Because the text of ss 92 and 93 of the Act are not totally determinative of the question I am required to answer, I will analyse the purpose and statutory contexts of

ss 92-94 of the Act.

Purpose of ss 92-94 of the Act

[24]     The purposes of the Act are explained in s 3 as being to:

(a)       control the growth of gambling;  and

(b)      prevent  and  minimise  the  harm  caused  by  gambling,  including problem gambling;  and

(c)       authorise some gambling and prohibit the rest;  and

(d)      facilitate responsible gambling;  and

(e)       ensure the integrity and fairness of games;  and

(f)       limit opportunities for crime or dishonesty associated with gambling;

and

(g)       ensure that money from gambling benefits the community;  and

(h)      facilitate community involvement in decisions about the provision of gambling.

[25]     Of these purposes, that set out in s 3(a) is most relevant namely, that a primary purpose of ss 92-94 of the Act is to control the growth of gambling by limiting the number of gaming machines that a licence holder can operate at its venue.

[26]     It is possible to give full effect to the purposes of the Act by interpreting the term  “venue”  in  the  way  advanced  by  the  Foundation  in  this  case.     If  the Foundation’s  approach  to  the  meaning  of  “venue”  is  correct  there  will  be  no “growth” (ie increase) in the number of gaming machines operated at the tavern. The number of gaming machines will remain the same as currently exist in the building site at 35 Gimblett Street.

[27]     This approach is also consistent with interpreting ss 92-94 of the Act as meaning entities, such as the Foundation, will not lose the benefit of the number of gaming  machines  it  had  as  at  17  October  2001  in  the  absence  of  clear  and unequivocal statutory language to that effect.  The Cabinet Minute[8] which recorded

[8] Cabinet Minute of Decision “Review of Gaming:        Gaming Machine Transition Issues and

Announcement” (15 October 2001) CAB 32/10 at [12].

the Executive’s intentions in relation to what became ss 92-94 of the Act, clearly

shows a desire to ensure that existing gaming machine “sites” would not be subject

to the nine machine cap proposed for new “sites”.

[28]     Accordingly, I conclude that the purpose of ss 92-94 of the Act favour the interpretation  advanced  by  the  Foundation,  namely  that  a  comparatively  minor change in location of the gaming machines would not alter the venue at which those machines are housed.

Statutory context

[29]     The most helpful aid to interpretation in this case is the statutory context to ss

92 and 93 of the Act.

[30]     In particular, I have derived considerable guidance from s 65(2)(a) of the Act, which differentiates between a description of a venue and its location when applications are made for a venue licence (refer paragraph [10] above).  In referring to “a description of the venue and its location” in s 65(2)(a) of the Act, Parliament contemplated that “venue” and “location” were not necessarily synonymous.  This in turn leads to the conclusion that Parliament contemplated that changes in location would not necessarily constitute a change of venue.

[31]     I have also derived some assistance by considering that under the Gaming and Lotteries Act 1977 the predecessor of a class 4 venue licence was issued in respect of a “site”.   The use of “site” suggested a specific address or location. Parliament’s conscious decision not to continue to refer to a “site” indicates that Parliament intended the term “venue” to mean something different from “site”, and that the term “venue” in this context need not be defined by reference to a specific address.

Conclusion

[32]     I conclude that the relocation of the tavern building to the corner site will not constitute a change in its venue.

[33]     I have reached this conclusion because:

(1)       the change in location is minor;

(2)       the name of the tavern will remain the same;

(3)       the ownership and management of the tavern will not change;  and

(4)for all intents and purposes, patrons and the public of Invercargill will regard the tavern as being the same venue, even though its physical location will change in a relatively minor way.

[34]     In my assessment, the Foundation can achieve its objectives without going through the exercise of amalgamating the three titles referred to in paragraph [8] of this judgment.  It should not be necessary for the Foundation to engage in what is effectively a legal charade to achieve its objectives.

[35]     This has been a test case.  Both parties have co-operated fully with each other to have an issue of statutory interpretation resolved.  Both the Foundation and the Secretary serve the public interest, albeit the Foundation’s focus is upon the public of Invercargill.   Nevertheless, in my assessment, this is one of those rare situations where costs should not follow the event and that each party should bear its own

costs.

D B Collins J

Solicitors:

Ward Adams Bryan-Lamb, Invercargill for Plaintiff

Crown Law Office, Wellington for Defendant