Riverside Casino v Moxon

IN THE COURT OF APPEAL OF NEW ZEALAND

CA113/00

BETWEEN	RIVERSIDE CASINO LIMITED
Appellant

BETWEEN	CASINO CONTROL AUTHORITY
Second Appellant

AND	THE RIGHT REVEREND BISHOP OF WAIKATO, DAVID JOHN MOXON AND OTHERS
Respondents

Hearing:	9 and 10 October 2000
Coram:	Gault J Thomas J Keith J Blanchard J McGrath J
Appearances:	A R Galbraith QC, C M Grice and M A MacLennan for First Appellant J O Upton QC and B R Latimour for Casino Control Authority R Harrison QC and D M Wilson QC for Respondents
Judgment:	19 December 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

On judicial review Fisher J, in a judgment delivered in the High Court at Auckland on 24 May 2000, set aside interim and final decisions of the Casino Control Authority granting to Riverside Casino Ltd a casino premises licence. The decision rested on the determination that one member of the authority, Mr Cox, was disqualified for apparent bias. Riverside appeals against that decision.
The respondents are representatives of churches in the Waikato region, the Mayor of Hamilton and some councillors and individuals opposed to the establishment of a casino in Hamilton.

The proceedings before the Authority

Riverside applied to the authority for a casino premises licence under s20 Casino Control Act 1990. By the time of the public sittings of the Authority it was envisaged that the licensed operator would be Sky City Casino Management Ltd, a subsidiary of Sky City Ltd, which had acquired 35 percent of the shares in Riverside with an option to acquire beneficially a further 20 percent. The application was confined to a premises licence for the development of the Post Office site at Victoria Street in Hamilton.
As required by a guideline issued by the Authority, the application was supported by detailed information directed to the requirements of s23 (suitability of the applicant) and s29 which specifies matters to which the Authority shall have regard including the likely impact on tourism, employment and economic development in the region. There was also the social impact report required by s30 which reads:
30Social impact report
(1)The Authority shall not grant a casino premises licence to any applicant until it has –
(a)Received from the applicant a social impact report in relation to the proposal; and
(b)Satisfied itself that the proposed casino will not have unduly negative social impact on the place or the region in which it is proposed to be sited.
(2)Every social impact report prepared for the purposes of this section shall deal, to the satisfaction of the Authority, with the likely social impact of the proposed use of the premises as a casino having regard to such matters as the Authority may specify.
The social impact report presented by Riverside was prepared by Taylor Baines & Associates (Mr Baines) of Christchurch, a firm with previous experience in the task.
By s24 the Authority was required to cause to be carried out all such investigations and inquiries as it considered necessary to enable it to consider the application properly. In accordance with s13 and previous practice, the Authority referred the application to the police and to investigating accountants to review the economic and financial aspects. The social impact report was referred for review to Professor McMillen, Executive Director of the Australian Institute for Gambling Research (AIGR) and an expert on the social impact of gambling. Professor McMillen had been previously retained by the Authority for the purpose of reviewing the social impact reports on earlier applications for premises licences in Dunedin and Queenstown.
The Authority is deemed to be a Commission of Inquiry (s9). It may receive material whether or not admissible in a Court (s10) and parties may be represented in proceedings before it and have the right to call evidence and cross-examine witnesses.
Three churches in the Waikato were accorded party status to oppose. They combined and were represented before the Authority. The Hamilton City Council also became an opposing party.
According to its usual practice, the Authority invited submissions from members of the public on the application.
The Authority scheduled public sittings on the application commencing in Hamilton on 8 February 1999. By that time the material in the hands of the members comprised the application and supporting reports, the report of the investigating accountants on financial and economic aspects, the report of Professor McMillen on the social impact report, briefs of evidence from some 40 witnesses for the parties, and some 1200 written submissions from the members of the public. In addition, according to the interim decision of the Authority:
Shortly before the hearing of the application began, a report became available of the results of a research project commissioned by the Authority, and carried out by AIGR, into the social and economic impacts of the two existing casinos in New Zealand. This was the most comprehensive research to date into the effects of casinos in New Zealand. The report was available in sufficient time for the parties to address relevant parts of it in their evidence.
The public sittings extended over 30 days. Witnesses were called and cross-examined. Those members of the public who had made written submissions were invited to appear in person. Seventy-eight did so. They were not cross-examined but read or summarised their submissions and then were questioned by members of the Authority.
By an interim decision given on 11 October 1999 the Authority, by majority, determined tentatively that they were satisfied the application should be granted but subject to conditions to be dealt with in discussion with the applicant. The final decision granting the licence on conditions was given on 3 December 1999.

The High Court proceedings

Two applications were made to the High Court for judicial review of the Authority's decisions. The plaintiffs were not those who had been accorded party status before the Authority, but we are not concerned with issues of status. The two proceedings were heard together over eight days commencing on 3 April 2000. We concentrate on those parts of the judgment of Fisher J relevant in the appeal. The Judge dealt with the legal principles governing the issue of bias by decision-makers and, with reference to the authorities, particularly R v Gough [1993] AC 646 and Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142. He accepted as the appropriate test for determining bias that of "real possibility" which he equated with "a real danger, in the sense of a real possibility, of bias". He then addressed the question of what constitutes bias and accepted that this must depend upon the circumstances of each particular case. The Judge summarised his conclusions on the applicable principles in the following way:
Although bias cases can be divided into “actual” and “apparent”, with subdivision of apparent into “presumed” and “real possibility”, it will usually be sufficient to rely on real possibility alone. The question there is whether, in the light of all the circumstances now known to the court, bias appears to have been a real possibility.
For this purpose “bias” means a leaning towards a particular outcome due to an impermissible preconception or influence. The question whether a preconception or influence is impermissible usually turns on the implied intentions of those who conferred the decision-making power.
Subject to contrary indications in the statute or other empowering document, little or no predisposition or extraneous influence will usually be tolerated where the decision-maker is a court, tribunal or similar body operating in a formal adversarial setting, the determination requires the application of a legally dictated result once facts are found, the decision impacts upon specific individuals rather than the community at large, and the impact upon those individuals is serious, particularly if involving human and civil rights and freedoms.
The reverse will usually be true where the decision-maker is a democratically elected body, the decision-maker is intended to form its own policies, particularly where on-going, the challenged aspect of the decision did not involve the application of closely controlled legal consequences to facts once found, eligibility for appointment, and hearing methodology, suggest that its members were intended to draw upon their own views, experience and expertise, and the opportunity to be heard is limited or informal. In such cases intervention will usually be justified only where the decision-maker entered upon the hearing with a closed mind, that is to say one which was not amenable to proper argument, or was unwilling to consider the case on its individual merits.
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Of itself, robust questioning and argument from the bench is rarely evidence of bias, and is even less likely to be so treated where the hearing is of an informal or inquisitorial nature. It is only where the decision-maker treats the opposing factions in a marked unbalanced way, or where the interventions are expressed in such forthright terms that they indicate a closed mind, that they could assume significance for bias purposes.
At the end of the exercise bias is not to be approached in a piecemeal fashion. A conclusion must be based upon all the circumstances of the case including personal interests, conduct, and associations before, during and after the hearing.
The Judge reviewed the characteristics of the Authority, noting that it had been in existence for 10 years and had dealt with eight previous casino premises licence applications. There are six members (although only five determined the Riverside application) who all are appointed for three-year terms having regard to the functions, powers, and responsibilities of the Authority and by virtue of their knowledge, experience, or expertise (s8). He referred to the fact that Mr Cox was appointed in 1990 and had taken part in all previous hearings of the Authority. He drew from the principles he had identified the following points directed to the way in which the Authority was intended to operate:
First, there could be no complaint that Mr Cox interrupted too frequently during the hearing, particularly given the inquisitorial role of the Authority (see Casino Control Act s9 and the Commissions of Inquiry Act 1908). If his interventions were significant for present purposes it could only be because of their content, not their frequency.
Secondly, there could be no complaint that he drew on his own experience with casinos, particularly if disclosed with opportunity for comment. Members of the Authority were appointed for continuous terms of up to three years (ss8, 15 and cl 1 to the First Schedule) and most were appointed because of their knowledge, experience or expertise (s8(1)(b)). The Authority could inform itself from its own experts (s13). It was entirely foreseeable that members would accumulate knowledge, experience and views about casinos from successive licence hearings and other related activities.
Thirdly, it was foreseeable and permissible that the Authority and its individual members would develop and apply their own casino policies. Specialist tribunals inevitably develop policy preferences. In the present case that was reinforced by additional roles in relation to casino policy, supervision and enforcement.
Nor can I see anything in the Act inconsistent with a general preference for granting casino premises licences where the conditions for one seemed to be met. The Act is replete with parliamentary signals that at least some casino licences were to be granted in New Zealand – see, for example, the long title “an Act (a) to authorise the establishment and operation of licensed casinos …”; the implied assumption that in the right circumstances casinos would promote tourism, employment and economic development generally (long title, s5(a) and s29); the indication that there should be at least one casino in the North Island and another in the South Island with a minimum of delay (ss25 and 26); and the elaborate system of supervision and control. The Authority was entitled to publicly reject anything which smacked of casino prohibitionism at a universal level and a member was entitled to say so at a licence hearing. To be relevant, an objection to the Hamilton application had to be confined to the particular applicant, proposal, place, circumstances and/or time.
On the other hand, there were two obvious limitations upon the preconceptions and preferences with which a member could approach a hearing. First, there could be no preference based upon a personal interest or prior association with the parties as individuals. A member of the Authority approaching the case with a preference for one side or hostility to the other on some such basis would be disqualified for bias. It would be sufficient if that were even a real possibility.
Secondly, a member could give effect to a personal ideology or policy only to the extent that it was consonant with the Act. There could be no assumption that every region with a suitable applicant was entitled to a casino. Only by approaching each application on a case by case basis could the Authority decide whether the requirements for applicant suitability (s23) and negative social impacts (s30(1)(b)) were satisfied, and that proper consideration had been given to casino standard and nature (s29(a)), local economic impact (s29(b)), and New Zealand ownership (s29(c)). A member approaching one of those matters with a closed mind would similarly be disqualified for bias. Again it would be enough if it were a reasonable possibility that he or she had done so.

The Judge had before him allegations of apparent bias against Mr Cox set out in the statements of claim. While numerous affidavits were filed in the proceedings before him, they were not directed to the conduct of Mr Cox said to give rise to the appearance of bias. Most of the affidavits were brief and were directed to establishing standing for the individual plaintiffs. The only reference to the conduct of Mr Cox was in the affidavit of Mayor Rimmington which stated simply "I observed proceedings over the days and observed an unfair bias by one of the Casino parties, Mr Cox". The case for the plaintiffs of bias against Mr Cox was mounted entirely by reference to the transcript of the public sittings of the Authority. It was on the basis of his assessment of the interventions recorded in the transcript that the Judge stated his conclusions as summarised at the commencement of his judgment in the following three paragraphs:
That bias was a real possibility emerges from a host of minor points each of which would be innocuous in isolation. They include Mr Cox’s ideological commitment to freedom of choice in community affairs; his political origins and reference to politics during the hearing; his tendency to dismiss regional opposition as a challenge to Parliament’s will; the fact that the Authority of which he was a member had granted at least one licence in each of the four centres where one had previously been sought; and the tenor of his interventions during the licence hearing. His questions and remarks during the hearing suggest an unconscious assumption that every region with a suitable applicant should have a casino and that where there is a suitable applicant the focus should turn to the measures necessary to mitigate negative social impacts. They also suggest an impatience with social agencies and the City Council for opposing the casino rather than mitigating the harm caused by gambling; denigration of those who opposed a casino; encouragement for those who supported it; espousal of pro-casino arguments; and rejection of anti-casino ones.
Viewed individually, none of those facts, remarks or questions would have been significant. Together they present a different picture. A reasonable onlooker, hearing them all and informed of the factual background, would have suspected that Mr Cox had already made up his mind before the hearing began. At the very least that was a real possibility. That was sufficient to expose the Authority’s decision to legal challenge.
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There being no obstacle to a remedy for apparent bias on the part of Mr Cox, the Authority’s decision to grant the licence cannot stand. That makes the plaintiffs’ other causes of action less critical. However it is important to say that there was no basis for any allegation of bias or apparent bias on the part of Ms Opai. Nor are there grounds for upholding the plaintiffs’ other causes of action.

The Judge examined the complaints made against Mr Cox under headings and by reference to selected illustrations from recorded interventions in the course of the hearing. He referred to "the political/philosophical dimension". This related to Mr Cox, a former National Party Member of Parliament, expressing what was said to be an ideological commitment to freedom of choice, particularly in exchanges with witnesses with affiliations in national or local politics. This, the Judge found, was indicative of a set view that members of the community who chose to do so should be free to indulge in casino gambling and showed that Mr Cox was never able to seriously entertain the possibility that a casino licence might be refused. He then dealt with the complaint that Mr Cox dismissed local opposition to a casino in Hamilton by equating it with a challenge to Parliament which had legislated for the licensing of casinos. Reference was made to interventions by Mr Cox when the witnesses and public submitters referred to local polls in the region which were claimed to have demonstrated that the majority of the population was opposed to a casino. The Judge felt unease that Mr Cox treated opposition formulated in this way as some attempt to have the Waikato excluded from the statutory law of New Zealand and by doing this he ignored the real issue founded on the concern of the community for the social impact of a casino in the particular demographic environment concerned.
The next issue was the claimed tendency exhibited by Mr Cox to move directly from the availability of a suitable applicant to measures which should be required to mitigate any negative social impact. Reference was made to interventions by Mr Cox suggesting that opponents and local agencies should be directing their efforts towards dealing with problem gamblers rather than investing their time and resources opposing the application. This, the Judge found, represented a failure to entertain the possibility that the best way of achieving mitigation of adverse social impacts in Hamilton might have been by refusing a casino altogether.
The Judge then turned to what he considered to be an unmistakable lack of balance to Mr Cox's questions and remarks. He made reference to examples where Mr Cox encouraged or commended those who favoured the grant of a licence and denigrated or was dismissive of those who were opposed. The Judge did add, however, that it would be easy to exaggerate the significance of Mr Cox’s rather colourful approach which formed part of the relevant background but was not a major ground in itself. The Judge then turned by way of counter to passages which were said to demonstrate openness of mind. He accepted that these should be included in the equation, but added:
However, if Mr Cox had really made up his mind as the plaintiffs allege, he would scarcely have admitted it when confronted. Nor would one expect an experienced member of the Authority to misquote the statute or confess that he intended to ignore it. Placatory remarks when challenged do not greatly advance matters.
The Judge stated his conclusions with respect to the allegations of apparent bias of Mr Cox as follows:
Mr Cox’s interventions during the hearing were frequent and vigorous. For reasons discussed earlier I attach no significance to that. The plaintiffs’ case rests not on the frequency or vigour of his interventions but any overall message they might have conveyed.
It is also important to keep the matter in perspective. It must have been frustrating to listen to repetitive arguments from countless objectors, particularly some which would have been better addressed to Parliament. There were occasions when Mr Cox was courteous to objectors or asked neutral questions. Propositions are sometimes tested by forcefully putting the contrary. Extracts from the hearing must be approached cautiously until understood in their full context. The extracts cited by the respective parties were necessarily selective. In a hearing of 32 days things will inevitably be said which the speaker would not want to have taken literally. Impromptu oral remarks should not be microscopically analysed as though they were statutes. A robust approach should be taken to colourful remarks which might seem to praise one side and insult the other. Since it is the overall picture which matters, too much weight should not be attached to any particular remark or fact.
Making all of those allowances, however, I am satisfied that there are simply too many signs pointing in one direction – Mr Cox’s freedom of choice philosophy, his propensity for equating local opposition with a challenge to Parliament, his reluctance to recognise the intermediate issues which lay between applicant suitability and mitigation measures, his criticism of social agencies and institutions for opposing the casino rather than helping with gambling problems, and the overwhelming tenor of his questions and remarks. If he started out with the mindset alleged by the plaintiffs, all of his philosophical justifications, leaps in the argument, promotions of the application, and frustrations with objectors, fall into place.

The Judge then turned to an argument that the plaintiffs should be denied remedy by virtue of waiver. It had been argued that those engaged in the hearing before the Authority had refrained from complaining of bias by Mr Cox in the course of the hearing, but waited until the decision was given so that they might have matters both ways. The Judge found no effective waiver because the parties seeking relief before the court had not all been parties to the original proceedings and had brought their applications for review to vindicate an important public interest.
The Judge dealt with a separate ground for review. It was claimed that the decision granting a licence subject to the conditions that were imposed and the applicant's undertaking to comply, was unreasonable, ultra vires, and a denial of natural justice.
The conditions attached to the licence were formulated under six headings. Under the first of these the licence holder is required to submit for the approval of the Authority before the casino commences operating, and thereafter annually, a responsible gambling programme providing for certain specified matters. The second, third and fourth heads of conditions are those with which we are principally concerned. They are directed to mitigation of negative social impacts. The licence-holder is required to provide education and treatment services for problem gambling in accordance with a management plan to be approved by the Authority. That plan is to include provision of an agency or person having particular expertise in the promotion of Maori health services. The plan is to be approved before commencement of operation of the casino, to be reviewed after three years and thereafter every five years. The licence holder is to establish and support a financially independent community trust under a deed in a form to be approved by the Authority and meet the actual and reasonable costs of the establishment of operation of a community monitoring group, the mode of operation of which is to be determined by the Authority. The remaining conditions are more of the technical kind, directed to design, construction, fit-out and operation of the casino and security and surveillance. These conditions also include the need for approvals by the Authority.
It was contended on behalf of the plaintiffs that granting a licence subject to conditions under which the Authority effectively deferred the basis upon which it might be satisfied that there were no unduly negative social impacts was in contravention of the requirement in s30 of the Act which provides that the licence shall not be granted until the Authority has satisfied itself that the proposed casino will not have unduly negative social impacts. It was said that in granting the licence in the manner it did the Authority acted unreasonably in that it could not rationally have been satisfied that it would not result in unduly negative social impacts, was ultra vires in that the essential temporal requirement of s30 ("until") was not met, and constituted a denial of natural justice in that those opposed to the casino would not have the opportunity to participate in setting the detailed steps required to mitigate negative social impacts.
Fisher J, by reference to the general objects of the Act and to the "sound efficiency arguments for deferring final definition of mitigation measures and retaining the power to monitor and change them throughout the 25 years of a licence", reached the view that the decision-maker could be satisfied in terms of s30 where it had reserved to itself the power to ensure that outcome, and that it was within the power conferred on the Authority by s32 to impose the particular conditions.
The respondents have cross-appealed contending that the Judge should also have set aside the decision on the alternative ground that the Authority exceeded its statutory jurisdiction or acted ultra vires in granting the licence subject to conditions and on an undertaking when it could not then have been satisfied that the proposed casino would not have unduly negative social impacts on Hamilton or Waikato. These grounds of cross-appeal are resisted both by Riverside and the Authority.

Applicable legal principles

For Riverside, the primary submissions in support of the appeal against the finding of apparent bias were that the Judge applied the incorrect legal test and, whatever should be the correct test, his finding that Mr Cox had predetermined the application could not be supported on the evidence. The respondents on the other hand submitted that the Judge applied the correct legal test and reached the correct conclusions on his assessment of the evidence.
While the written submissions of counsel contained extensive references to authorities, it emerged at the hearing that there was little between the parties on the applicable legal principles.
The test for apparent bias was set out in the speech of Lord Goff in the House of Lords in R v Gough [1993] AC 646, 670:
In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators.
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Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.
That approach was adopted by this Court in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142. The principles were further explained in the context of concrete cases in Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 All ER 65.
Fisher J said that the test he adopted of “real possibility of bias” was the economically expressed equivalent of the test propounded in Gough of “a real danger, in a sense of a real possibility, of bias”. Mr Galbraith took some issue with the formulation of the test in this way and indicated a preference for “real danger” over “real possibility”. Bearing in mind the manner in which the Judge reached the test he adopted and his explanation of it, while we prefer the fuller statement, we are not persuaded that he employed a wrong test at this point. We comment, however, that the qualifier “real” is an integral part of the test.
Mr Galbraith argued that when an issue of apparent bias arises after the decision has been made, because the courts no longer attempt to stand in the shoes of a reasonable observer, and assess the matter in light of all the circumstances known at the time of review, the enquiry in reality is to whether the decision maker was in fact biased. We do not understand the authorities to go that far. They do, however, provide that where the possibility of bias can be actually excluded appearances will be irrelevant. However, where actual bias cannot be excluded, the danger or possibility of bias can still be held to arise from appearances.
The Judge, by reference to cases decided before the Auckland Casino case, referred to varying levels of predetermination that will be permitted according to the circumstances of particular cases. After reviewing the nature, powers and functions of the Authority under the statute and the role and experience of its members, he reached the view that in this case those challenging the decision would need to show the possibility that Mr Cox “entered on the hearing with a closed mind”; “that he was so committed to granting a licence that even before he heard the evidence and argument his mind was made up”; that “he was never able to seriously entertain the possibility that a casino might be refused”. Although at one point the Judge referred to a “level of favouritism”, we do not believe he intended to recognise varying levels of bias. That would hardly be consistent with Lord Goff’s common test for all situations. Bias is bias. That is, as Lord Goff said in Gough (p670), unfairly regarding with favour or disfavour the case of a party to the issue under consideration. It is not what constitutes bias that depends on the circumstances, but what is to be taken as showing or indicating bias.
Whether the matter is approached by reference to what level of predisposition is unfair or impermissible in the circumstances or by reference to the conduct (indicative of a committed view) that in the circumstances is to be regarded as establishing bias, each inevitably leads to the same result. Either approach accommodates the range of circumstances in which decisions are made. They include those of specialist tribunals whose members necessarily acquire experience and form opinions carried from one case to another: e.g. Turner v Allison [1971] NZLR 833, 842 and 849; Re Royal Commission on Thomas case [1982] 1 NZLR 252, 279.
In the present case the appellants can have no complaint with the approach adopted by Fisher J.
Accordingly, we have not been convinced that the Judge erred in law in formulating the applicable principles by which to assess the evidence.

Was there apparent bias in this case?

It emerged that the principal basis of the appeal was the application of the facts to the stated legal principles. On this ground we heard extensive argument from counsel, on the one side challenging the views reached by the Judge and on the other side supporting them.
Fisher J reached his conclusions on “the overall picture” established by an accumulation of facts which viewed individually would have been, as he said, innocuous or insignificant. He emphasised that the specific interventions identified in his judgment were selected illustrations and that there can be no substitute for reading the transcript at some length. Because of that we have reviewed the transcript; 11 volumes; 2922 pages recording the evidence and submissions over 30 sitting days; paying particular attention to every instance identified by computer search in which Mr Cox is mentioned or spoke, and the relevant contexts.
Before turning to the cumulative grounds on which the Judge arrived at his decision there are three matters addressed in argument that constitute essential background.
The Judge referred to Mr Cox having created the appearance that he had made up his mind “before the hearing began”, and to the need for intervention when the decision-maker “entered upon the hearing with a closed mind”. That raises the issue of when, in a licensing procedure as was involved here, the hearing began. The Judge proceeded on the assumption that the public sittings constituted the hearing. But before they began the members of the Authority had received and considered a considerable volume of evidence and written submissions. That was consistent with its guidelines to applicants. They provided a summary of the procedure including the following.
The Authority proposes a procedure to give each of the parties the fullest opportunity to present its case. The procedure emphasises full disclosure by provision of sworn written evidence with necessary documentation annexed. The hearing process starts with evidence in support being lodged with the Authority and served on all other parties. From the filing of that evidence it will be open to a party to seek further information from applicants and thereafter file evidence in opposition to an application (or in support).
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Written submissions may also be made which will enable each party to sum up its case and to define the issues it considers the Authority has to determine. The Authority puts great weight on the parties informing it of the particular issues which are relevant in each application. By the time the public sittings are reached the issues should be clear and the contents of fully documented files setting out the evidence for and against each application well known to all parties. The Authority envisages that at the public sittings each applicant will have the opportunity to present its own case followed by interviews by the Authority with the applicants’ witnesses and with witnesses of other parties.
Throughout this procedure the Authority intends to request information and explanations, and put questions to parties in writing during the period leading up to the public sittings.
In the case of Riverside’s application, by the time the public sittings began Mr Cox had had the opportunity to consider the extensive social impact report of Mr Baines presented in supported of the application and a substantial critique of that provided to the Authority at its request by Professor McMillen. He also had the separate report prepared by Professor McMillen on the two casinos already operating in New Zealand giving empirical information for comparison with projections made at the time licences for those casinos were applied for. This body of expert evidence supported the applicant’s claim that negative social impacts of a casino operation in Hamilton, if managed with appropriate mitigation strategies, would not constitute “unduly” negative impacts to which s30 applies. He also had for consideration the extensive written evidence presented by the opposing parties addressing social impacts in the Waikato communities and with particular reference to Maori and young people. There were in addition the very large number of written submissions from members of the public. While some of these were reasoned submissions most were signed printed forms expressing opposition, often without reasons. A very small number expressed support for a casino. Overwhelmingly the reasons that were given in opposition were directed to concern for increased social problems stated in broad generalised terms. Apart from conveying wide-spread and organised protests against the establishment of a casino, these public submissions added little by way of relevant considerations to those identified in the professional reports.
There was simply no evidence indicating Mr Cox’s attitude before considering all of that material. It could be neither surprising nor objectionable if members of the Authority had formed some views on the application prior to the public sittings. It was to be expected that issues would have been identified for specific investigation in the course of the oral evidence and submissions. There are clear advantages in such an approach.
The second matter of background underlies the emphasis on strategies to ameliorate or mitigate adverse social impacts from the operation of a casino. It is common ground that no premises licence could be granted unless and until the Authority was satisfied that the proposed casino would not have unduly negative social impacts in Hamilton or the Waikato region. It was acknowledged by Riverside from the outset in the Baines social impact report that there would be negative social impacts. The real issue therefore was whether they would be “unduly negative”. That called for assessment of factors to be anticipated in the setting or circumstances in which they will occur. The degree of negative impact will depend upon circumstances, including any ameliorative or mitigating strategies that are in place. These may extend, for example, from dress codes for entry to the casino to means for the identification and treatment of problem gamblers. Effective programs operating to address negative impacts may be regarded as sufficient to prevent them from being unduly negative. There could be no objection, therefore, if members of the Authority focussed on proposed mitigation strategies in the course of assessing whether they were satisfied that the s30 threshold was crossed.
The third background matter is simply the need to keep in mind the distinction between error and bias. It is neither appropriate nor fair to a lay tribunal member to infer bias from comments that might reflect an unclear or even erroneous view of the law or the relevant criteria. Of course, if material error intrudes into the actual decision there may be remedies, but that is no reason to attribute bias.
Mr Cox was the longest-serving member of the Authority who sat on the Riverside application. It is clear from the transcript that he had accumulated extensive experience and knowledge in relation to casino gambling and its impact both in New Zealand and overseas. As an accountant he had particular skills in financial and statistical areas. As a former Member of Parliament he would be expected to have considerable background in New Zealand’s social and political circumstances. All of this quite appropriately was brought to bear on the inquisitorial process in which the Authority was engaged.
The attributes of personality and style of Mr Cox emerging from the transcript are forthrightness without careful choice of expression. He had an inclination to engage in what was apparently good-humoured banter with counsel and occasionally with witnesses and, not infrequently, he injected a flippant comment, perhaps to relieve the tedium of the lengthy public sittings.
At the beginning of the public sittings Mr Cox’s familiarity with the material already before the Authority, his own background experience and his personality converged in his reaction to the situation with which he was presented. The possibility of the establishment of a casino had been a matter of major public controversy in Hamilton. It had been a principal issue in the City Council election and the Council obtained party status to oppose the application; it had been the subject of public opinion surveys; it had led to the formation of a Waikato Casino Opposition Action Committee which actively canvassed in the community; it led to the large number of submissions to the Authority from members of the public on standard forms; it was the subject of real concern in the churches throughout the region.
The opening day of the public sittings was described by Mr Cox in his affidavit:
I have to say that the substantive hearings of this application were the most politically charged of any casino hearings I have been involved in. There was a high level of objection and protest to the Authority and through the media. The hearings began with a protest out on the street attended by the Mayor and some councillors and we had to walk through the protest to get in to the hotel where the hearings were being held. Placards and posters were very much in evidence throughout the hearings. I had absolutely no concern about the fact that there were objections and protest. As a one-time Member of Parliament, I consider that to be the public robustly protecting its rights. I mention the point only to highlight the contrast between the highly charged atmosphere during these hearings as contrasted with earlier hearings in which I had been involved. Two specific examples come to mind. One was during the hearing on 8 February 1999 when Mr Upton was making submissions to the Authority. At some stage during those submissions a member of the public stood up in the body of the hearing room and started to wave a placard around. Then later on the same day, a member of the public interjected (as is recorded at p.0015 of the transcript) to report a comment from Cr McPherson that I was “on his hit list”. There were also attempts to put anti-casino posters on the walls in the hearing rooms (because plans of the proposed development were initially on display).

These circumstances prompted Mr Cox to make a substantial statement early in the proceedings. He mentioned the nature of the cases of the opponent parties. He emphasised that it would not be productive to attack the legislation under which the Authority was required to operate, nor to engage in tactical attacks on the process. He invited focus on “persuading us that this application, and the applicants, do not comply with the Act”. Subsequently, in the course of their opening remarks counsel for the City Council expressed agreement with the approach Mr Cox had recommended.
Fisher J made a passing comment on this initial statement as indicating a “curious approach to onus”. So long as the requirement for the Authority to be “satisfied” is not lost sight of, resort to onus is of little value in an inquisitorial process such as this. But in any event the lengthy exchanges between counsel and Mr Cox in the course of closing submissions clarified completely Mr Cox’s approach which counsel accepted and to which there could be no objection.
The Judge also regarded as of significance that Mr Cox in this initial statement added, after saying that the opponents should seek to persuade the Authority that the application and applicant did not comply with the Act:
You have got to persuade us, and its been done before in other hearings, that the applicants are not worthy within the Casino Control Act to have a casino licence.

The Judge’s criticism was that whether or not the applicant was worthy was not the issue and deflected focus from the real question of whether there should be a casino at all. In context we cannot see much wrong with the statement given it was made by a lay member contemplating weeks of misdirected protest against any casino and in some respects against gambling at all. The Judge had said himself:

The Authority was entitled to publicly reject anything which smacked of casino prohibitionism at a universal level and a member was entitled to say so at a licence hearing. To be relevant, an objection to the Hamilton application had to be confined to the particular applicant, proposal, place, circumstances and/or time.

We turn then to the matters identified by the Judge as indicating that Mr Cox had from the outset closed his mind to the refusal of the application. First, there was the fact that in all previous proceedings in which Mr Cox had participated as a member of the Authority at least one premises licence had been granted. As the Judge said, the Act is replete with parliamentary signals that at least some casino licences were to be granted in New Zealand. Indeed it contemplates the grant of the initial two premises licences, one in the North Island and one in the South Island, and prescribes a time frame within which they were to be operating. The proceedings leading to the grant of those licences were very much directed to which applicant should be granted the licence. As this was the first proceeding in which there were parties mounting full-scale opposition to any licence, the fact of previous grants cannot be even a contributor to an inference of bias.
The next factor said to be indicative of apparent bias was what was referred to as Mr Cox’s ideological commitment to freedom of choice in community affairs. This received considerable emphasis. There were a number of discussions in the course of the hearings, generally in response to references to potential harm to persons vulnerable to problem gambling, in which there was reference to the need for weighing the destructive impact on a relatively small proportion of persons susceptible to addiction against the opportunity for the majority to have available the choice of casino patronage as a form of entertainment. On occasions these exchanges led to contentions by submitters that the community should have the freedom to choose (by poll) not to have a casino, and the counter that the legislature did not choose to make local popular approval a criterion for the grant of licences. There were also similar exchanges about banning and self-banning (first raised in the written brief of Inspector Mitchell) and proposed legislation which might facilitate that.
Mr Harrison, in argument, described this factor as both the source and manifestation of the bias. He submitted that Mr Cox substituted it for the mandatory s30 criterion thereby avoiding consideration of the real issue. If that were so it would seem to be more error than an indication of bias. But in any event, in their full context, we do not consider the discussions amounted to more than confronting with a contrary view those submitters who had expressed their opposition in terms of the need to protect people who might be or become problem gamblers.
The first reference during the public sittings to this question of freedom of choice arose in the course of questions by members of the Authority directed to a witness, Dr Gilgen, called on behalf of the combined churches. Mr Cox asked him if he believed he should have the right to recommend that patients should not be allowed into the casino. He replied that he believed in free will and freedom of choice and that he did not believe compulsion worked.
The matter seems to have arisen next in week five of the public sittings when another member of the Authority, Mr Dew, was questioning a principal witness called by the churches, Dr Macdonald, a senior lecturer in anthropology and health policy and development at the University of Waikato, who presented social impact evidence for the combined churches. Mr Dew asked the witness if she gave any weight to the value of freedom of choice; that 97 percent of the population might like to gamble and could do so without harm. The answer was to the effect that if the potential harm to the smaller number is great then the freedom of choice should not prevail. The matter was not followed up by Mr Cox who was the next member of the Authority to question her. Following the evidence of Dr Macdonald, counsel for the Hamilton City Council made his opening submission. In the course of that Mr Cox intervened suggesting that at the end of the day the Authority had to measure the social impacts against the total population so as not to disenfranchise the 97 percent, “or whatever percentage”, upon whom there would be no impact. Counsel accepted that and said, “Right. Let's come onto that because you raise an important point. It's a point Mr Dew raised with the last witness in the form of the questions about freedom of choice”. Counsel then went on to address the issue.
It was in the seventh week of the public sittings in the course of questioning of a member of the public, Ms Waugh, that Mr Cox himself seems first to have introduced the question of freedom of choice. Ms Waugh was a voluntary worker and member of the committee of the Alternative to Violence Project in Waikato which, she said, was an initiative of the Society of Friends, Quakers, who do not support gambling in any way. Mr Dew introduced by way of questions the possibility that some people might enjoy gambling. This was followed by a statement from Mr Cox. He said:
Mr Cox … I am like you. I wouldn’t bother crossing the door of a casino and people here have heard my views on this before. But I have said people have that choice.
The person who spent $300. I don’t know whether they can afford it or not. One assumes that 90 percent of them can. And that’s what – how they want to spend their money. It’s the freedom to do that that raises hackles around here. I believe that that should be so.
I am concerned about 3, 4, 5 percent of people who have a chronic gambling problem. And those are the ones that the churches, I think, will find that they have to assist and any role I have to play on this Authority would be to make sure that those people are given whatever help is required.
And as I say, I don’t go into casinos with an open mind. I find them pretty dreary places as well. But some people like to do that. And twelve thousand people a day in Auckland do and 3 thousand people a day in Christchurch do and some of them will have problems. But they’re a pretty small percentage. And put what you saw in context and some people like it.
The response from the witness was "But we don't allow people to buy heroin do we". The matter then was taken further by Mr Dew.
Similarly, in the next week, there was a submission from another member of the public, Mr Ball, who had said in answer to questions from the Chairman that members of his church do not drink or smoke cigarettes. Mr Cox then asked if they allowed freedom of choice to which the witness gave an affirmative answer. After a further exchange Mr Dew congratulated Mr Ball on a well reasoned and presented argument.
It was in week 10 that there occurred the exchange highlighted by the Judge under his heading "the political/philosophical dimension". Ms Collett presented a submission to the Authority on behalf of the Hamilton West Branch of the Alliance Party. In her oral submission she referred to social problems created by gambling and to the level of opposition in the Hamilton community indicated through the polls conducted by the Casino Opposition Action Committee and others. In the course of questioning by members of the authority Ms Opai asked if the consequences of problem gambling should be laid at the door of a casino like the one proposed, in light of all the other available forms of legal gambling already present in the Waikato region. The exchange went on to compare casino gambling with other forms of activity which involve gambling. Mr Cox then asked Ms Collett if she personally agreed with freedom of choice. Then followed the lengthy exchange set out in full in Fisher J's judgment. In the course of this Mr Cox referred to the Alliance party as "your lot". He also made the point that statistically a small proportion of people become addicted to gambling whereas for the majority freedom of choice would suggest they should have the opportunity to go to a casino should they choose to. At one point he said: "I can't understand why you are opposed to that" to which Ms Collett replied: " I am not". The exchange then turned to the polls and their reliability.
The Judge accepted as having something in it the complaint that in this exchange Mr Cox channelled the discussion into a philosophical one about freedom of choice generally, that he initiated the discussion by reference to party politics, and referred to an opposing political party in less than complimentary terms. However in the context it is difficult to see anything sinister in the good-natured political banter. The general tenor of the exchange was not inappropriate having regard to the submission that was made and the prior questions by another member of the Authority.
From time to time through the hearing there were references to proposed legislative changes to the Act and to another prominent member of the Alliance Party, Phillida Bunkle, who was active nationally in opposition to the establishment of casinos. She made a submission to the Authority but did not appear in person.
At the local level, there was also the submission presented to the Authority by Mrs Marshall, a councillor, with whom Mr Cox engaged in another good-humoured exchange. She said she campaigned and was elected on a stance opposed to the casino. She was no doubt one of those Mr Cox had in mind when at another stage early in the public hearing he made the comment, referred to by the Judge, that "my feeling is that a few people have grabbed onto it as a political banner, and very successfully I understand that".
Having carefully reviewed the relevant evidence, we do not find the proceeding to have been dominated in any way by the concept of freedom of choice for individuals. The point arose from time to time over the lengthy public sittings. It seems to have been raised generally as a counter point to expressed concerns for the impact of a casino on people susceptible to gambling addiction and those whose circumstances would be worsened by casino gambling. Its relevance to the statutory task of the Authority was not high. It could perhaps be a factor in what negative impacts should be regarded as undue or in the residual discretion to grant or refuse a licence. In context the occasions on which the point was mentioned by Mr Cox were few when considered over the ten week period of the sittings. Others raised the same point. To confront witnesses with a contrary view or to invite them to see another point of view does not necessarily reflect a philosophy or ideological commitment. In Mr Cox’s case his interest in what might be done to mitigate impact on the statistically small section of the community who become problem gamblers and his expressed interest in the detail of reported instances of unsympathetic conduct in an existing casino pointed away from any blind determination to give to the majority freedom of choice irrespective of the consequences for the minority.
It seems to us neither unreasonable nor inappropriate to remind those who based their opposition to the application on convictions that all gambling is socially destructive or on the breadth of public opposition reflected in polls, that Parliament had not provided in the legislation for refusal of licences on those grounds. Indeed, in the course of the public sittings there were not infrequent references to proposed legislative changes. All of this meant that political issues, both national and local, were inevitably present. Mr Cox commented on them more than other members of the Authority and bluntly. He certainly employed some unconventional language critical of people and agencies whose generalised opposition was based more on conviction or opinion than empirical analysis. As the Judge said, it must have been frustrating to listen to repetitive arguments on matters less than directly relevant to the enquiry. But his interventions in this respect contribute little weight to an inference that he had a closed mind on the application before him.
The same must be said for the Judge’s concern at Mr Cox’s comments critical of the social agencies. Context is important. Mr Cox was clearly familiar with the Baines social impact report and the views expressed by Professor McMillen that negative social impacts could be mitigated by preventative and remedial strategies. He made clear also that he placed weight on the report prepared for the Authority by Professor McMillen on the impacts of the two established casinos. When Ms Barton, the social impact expert for the City Council, gave evidence she was questioned by the Chairman and said that she believed it was possible to put in place mitigation measures so that the social impacts would not be unduly negative.
Against that background, Ms Lewin, an employee of the Council gave evidence. She was relatively new in her position and demonstrated little expertise in relation to problem gambling. She was not able to assist the Authority on Council initiatives directed to problems generated by the existing facilities for gambling in the community. It was, therefore, unsurprising that members of the Authority should press her on the need for Council awareness of this issue extending beyond the proposed establishment of a casino.
If he had formed a tentative view from the material available to him before the hearing, it was to be expected that Mr Cox would look to witnesses to help him in assessing whether identified negative social impacts could be mitigated. It would have been entirely open to him to press those appearing before the Authority to focus on this aspect and to be disappointed if, instead of constructive assistance, he was presented with unsupported (though no doubt genuinely believed) expressions of feared social devastation.
Two witnesses from the Compulsive Gambling Society were questioned by Mr Cox drawing on his experience on the Authority. He expressed concern at tensions between the Association and the Auckland Casino operator when co-operation in dealing with problem gamblers would be more productive. That was very much a side issue.
Fisher J made it clear that his conclusion was reached on the overall picture. He expressly said that viewed individually none of the facts, remarks or questions he highlighted would have been significant. There is little point therefore in further analysing them individually. We must keep in mind the cumulative effect and the fact that the judgment identified only examples of the matters by which the Judge was influenced in reaching his view that Mr Cox was never able seriously to entertain refusal of a licence.
From our review of the transcript of the public sittings, with the benefit of the full argument from counsel, we do not find any consistent pattern of intervention pointing to a closed mind. Rather we have gained the impression of an experienced member of the Authority bringing to the public sittings considerable experience in the field and a familiarity with the written material already considered. Throughout, his interventions showed that he closely followed the proceedings and challenged matters he did not immediately accept. He clarified evidence and enquired when he sought elaboration or further information. He showed particular interest in local social circumstances, particularly the position of young Maori in the region. He probed for assistance on whether their susceptibility to problems from gambling resulted from socio-economic circumstances or something more. He participated actively throughout and, when corrected, he readily acknowledged error. His unnecessary robustness at times to us reflected more his personality and background than bias.
That impression should not simply be substituted for that of the Judge unless he proceeded on some wrong basis. We think he did for three reasons. First, he judged Mr Cox’s interventions against a standard directed to the public sittings rather than the Authority “hearing” as a whole. In so doing he imputed to Mr Cox predisposition when there was every reason for him to have formed preliminary views, from prior consideration of evidence and submissions, and to have identified issues for investigation at the public sittings. Secondly, he attributed to Mr Cox a failure to focus on the possibility of refusal of a licence because of unduly negative social impacts and a tendency to leap directly to investigate mitigation strategies. For reasons earlier given, that was not necessarily inappropriate and does not point to an improper or biased approach. The negative impacts of a casino in a community are to be assessed in light of the preventive or ameliorative programmes that are, or may be put, in place.
Thirdly, the Judge was persuaded to condense into a picture, no doubt graphically painted by counsel, of a persistent and coherent pattern of interventions what in reality were isolated comments spread over ten weeks of hearings each motivated by the particular context. This is perhaps exemplified in the view taken by the Judge of comments by Mr Cox inconsistent with the conclusion. Although mentioned as to be included in the equation, these comments in the end were dealt with somewhat dismissively. The comment that placatory remarks when challenged do not greatly advance matters comes close to a finding of actual bias deliberately concealed. However, this may be simply a reflection of the vigour with which the argument was advanced, because the Judge expressly said he did not find that in fact Mr Cox had a closed mind. Just as comments suggestive of a set view must be weighted, comments claiming or suggesting the contrary must also be given weight. On our review of the transcript we found more comments from Mr Cox encouraging or complimentary of submitters opposed to the application than of those in favour of it.
We are satisfied that had the Judge not been persuaded to approach his consideration of the transcript as he was, he would not have concluded on that basis alone that the claim of apparent bias was made out. We think he would have seen what occurred as typical of an inquisitorial hearing by a licensing authority, including non-lawyer members, in which one member’s approach was robust and verged at times on the outspoken. Some comments reflected less than precise focus upon the relevant statutory criteria, but misunderstanding and even error do not establish bias. In our view there was just not sufficient material to support a conclusion that before he embarked upon his consideration of the application, Mr Cox had a fixed view, not open to persuasion, that Hamilton should have a casino. The expression of views in the course of a hearing is not to be confused with bias, and allegations of bias do not open the way for some wider review of the merits of the decision. The order setting aside the decision on this ground must be quashed.

In reaching that conclusion we are not to be taken as retreating from the emphasis in the Auckland Casino case (p148) on the need for a firm and realistic standard underpinning disqualification for bias to ensure public confidence in the impartiality of licensing bodies.
In view of the conclusion we have reached on the bias issue it is unnecessary for us to deal with waiver.

The cross-appeal

By way of cross-appeal, counsel for the respondents argued that the Judge erred in rejecting other grounds on which it had been contended the decisions should be set aside.
This aspect of the case originated in a pleading in the Further Amended Statements of Claim under a heading “Unreasonableness”. It was alleged that the Authority’s decisions were not ones which a tribunal acting reasonably on the evidence available could have made. In particular, it was said, there was no evidence, or no satisfactory evidence, which was reasonably capable of supporting the Authority’s finding that:
The casino proposed would not have unduly negative social impacts on Hamilton or the Waikato regions. We consider the RCL mitigation measures are appropriate and accept that when implemented, will be effective.
This broad allegation appears to have been the basis for the discrete points argued before, and dealt with by, the Judge as already related. It was further refined in argument in this Court. It was submitted that the Authority acted in excess of its jurisdiction or ultra vires in that in issuing the licence it could not have been “satisfied” within s30 that the proposed new casino would not have unduly negative social impacts on Waikato or Hamilton. It was further submitted “additionally or alternatively” that the Authority acted in excess of its jurisdiction or ultra vires because its decisions to grant the licence, subject to compliance with conditions relating to mitigation measures and provision of an undertaking, did not amount to satisfaction on the date of issue that the proposed new casino would not have unduly negative impacts, and constituted in law deferral of the Authority’s satisfaction until a subsequent date.
In the High Court and again in argument in this Court it was conceded by the respondents that the Authority had before it enough evidence to show what mitigation would be necessary in order to negate undue negative social impacts in terms of s30. It was submitted, however, that in ruling that the mitigation measures proposed by Riverside were appropriate and, when implemented, would be effective, the Authority left unanswered the critical question of whether such measures could be implemented. We were invited by counsel to conclude that there was no evidence before the Authority on which a finding to that effect could be made.
It was further submitted that, although the Authority recognised a wide range of negative social impacts, it addressed only one of them in the conditions imposed and that, again “additionally or alternatively”, the conditions that were imposed were void for uncertainty or were unenforceable.
Two preliminary points of statutory construction ruled upon by the Judge underlie the cross-appeal and were the subject of specific argument. The first was whether the Authority was empowered by s32 to impose on the grant of the licence conditions directed to the provision of facilities for problem gambling education and treatment services. We agree with the Judge that s32 is wide enough to encompass the imposition of such conditions. The section provides:
32Conditions of casino premises licence – On granting any casino premises licence, the Authority may impose such conditions as it thinks fit, not being inconsistent with any of the provisions of this Act, relating to
(a)The completion and operation of the facilities that the applicant, in or in support of the application, has undertaken to provide in, or in conjunction with, the proposed casino; and
(b)The approval and supervision of operating procedures for the proposed casino, including the matters specified in the Second Schedule to this Act.
The section authorises the Authority to impose:
… such conditions as it thinks fit … relating to … [t]he completion and operation of facilities that the applicant … has undertaken to provide in, or in conjunction with, the proposed casino.

On a narrow view this wording could be construed to relate to facilities in, or in conjunction with, the proposed casino in the nature of gaming and related equipment, restaurants, accommodation and the like. But it is broad language and it is to be considered in context. The section confers power on the Authority by means of conditions of premises licences to control and supervise the establishment and operation of casinos. The matters specified in the Second Schedule, referred to in para (b), indicate the closeness of that supervision. This is part only of the broader functions of the Authority which extend to policy formation, monitoring and discipline (ss 16, 70, 74, 90). It would be to inhibit the Authority in its statutory role in the promotion and development of licensed casinos (long title) while satisfying itself that there will be no unduly negative social impacts from their operation, if conditions mitigating social impacts could not be imposed. We see no justification for adopting a narrow construction which would have that effect.

We note that s32(a) refers to facilities the applicant has undertaken to provide. In light of that we see no basis in the objection that the Authority sought an undertaking from Riverside to comply with the conditions imposed.
Both ss 30 and 32 are forward-looking in that they are directed to proposed casinos. We find nothing in the wording of these sections to prevent the Authority being satisfied in terms of s30 even though mitigation measures are not in place at the time of the grant of a premises licence. If the Authority is satisfied that prior to the commencement of operations, even though it may be after the grant of a licence, there will be put in place, in compliance with conditions imposed, strategies, facilities or measures that will be effective in mitigating any undue negative social impacts that otherwise would arise, there is no excess of jurisdiction. We agree with the Judge when he said with reference to the conditions imposed:
Here the Authority knew that before the casino opened it would approve and impose the details required. Presumably it could be satisfied on 3 December 1999 that there would not be unduly negative social impacts because it could rely upon itself to take the steps necessary to avoid that outcome.
We agree also that it is conducive of efficiency and in accord with the general purpose of the Act to construe the relevant provisions to give flexibility to the Authority where that is necessary for practical discharge of its functions. Premises licences are granted for 25 years. Except on application of a licence holder, or in formal discipline procedures under ss90 and 91, the Authority has no power to vary conditions. So the ability to fix conditions suitable to the circumstances and subject to continuing review will be almost essential to maintain efficacy.
The powers of the Authority in the period between the grant of a premises licence and the commencement of operations of a casino, and thereafter, are adequate to ensure that conditions imposed are implemented and adhered to.
We return then to the principal argument that there was no evidence upon which a reasonable Authority could be satisfied that the mitigation measures proposed by Riverside in the report of Mr Baines could be implemented. There was a tendency in the argument to rely on evidence from representatives of social service organisations indicating their inability to provide support services for problem gamblers and others affected adversely by a casino. But it is not the function of this Court to assess the strength of the evidence and review the merits of the conclusion of the Authority. If, notwithstanding contrary evidence, there was evidence which a reasonable Authority could accept as supporting a finding that the proposed measures would be implemented, this ground of review cannot succeed. It was for the Authority to assess the evidence.
It was the very purpose of the reconvened public sitting to assist the Authority in considering the application, particularly by having Riverside provide specific proposals, about how Mr Baines’ recommendations for mitigating social impacts would be put into effect. Evidence was given by Mr Baines who provided a detailed memorandum. He was cross-examined by counsel for the combined churches and questioned by members of the Authority. Evidence was also given by two officers of Riverside and by two representatives of Tainui Development Ltd, which company is a participant in Riverside and assumes a particular responsibility towards Maori in the region. They too were cross-examined by counsel and questioned by members of the Authority.
In assessing the evidence of the proposed measures the Authority was entitled to draw on experience gained from the introduction and operation of mitigation measures under similar conditions imposed on the grant of earlier casino premises licences. We find persuasive the submission of Mr Upton for the Authority in this respect:
With these, as with most other matters, the CCA was entitled to and undoubtedly did bring to bear its own expertise and experience of such matters. The CCA is a body which has now been in existence for over 10 years and which carries out, in conjunction with its licensing function, a wide range of on-going regulatory and monitoring functions. The CCA was entitled to use its accumulated specialist knowledge to interpret and assess propositions put to it.
For example, in respect of most of the “mitigation measures”, the CCA has extensive experience and understanding of the operation of funding mechanisms such as community trusts (all five other casinos in New Zealand have or will have such trusts) and the current operation of the Committee on Problem Gambling Management (“COPGM”). Similarly the CCA has experience and understanding of various programmes and procedures developed (and continuing to be developed) for dealing with matters of the type catered for by the Responsible Gambling Programme.
The concept of a community monitoring group (a new concept) was suggested by an expert social scientist (Mr Baines) in his Social Impact Report filed right at the outset and endorsed by the CCA’s own expert adviser, Professor McMillen, on which there was substantial evidence and discussion at the hearing.
We are satisfied that the Authority had evidence which it could assess with a view to determining whether the proposed measures would be implemented and would be effective in preventing or ameliorating any unduly negative social impacts. The Authority, by a majority, declared itself to be satisfied. It did so without requiring other social impacts to be addressed by the imposition of conditions.
Once it is accepted that it was open to the Authority to impose conditions to ensure those measures and to defer for its own approval, before commencement of the operation of the casino, the details of those measures, it is not for the Court to express a view on the merits of the conclusion reached. We were taken through the conditions imposed by the Authority relating to the responsible gambling programme and problem gambling education and treatment services. We were not persuaded that they should be struck down for uncertainty. We agree with the submissions of Mr Upton and Ms Grice that it will be a rare case where conditions imposed by licensing authorities such as this one are held void for uncertainty or are found invalid due to lack of specificity merely because detail is to be added subsequently. In Turner v Allison [1971] NZLR 833, 857 an objection that a condition imposed on a planning consent required the external appearance of a supermarket building and landscaping to be carried out to the satisfaction of a town planner was upheld. In R v Director-General of Telecommunications, ex parte British Telecommunication Plc (unreported) High Court of Justice; CO3596-96; 20 December 1996; Phillips LJ and Hooper J), a challenge to a condition imposed on a telecommunications licence on the ground of uncertainty or lack of specificity failed where compliance with the condition was to be determined by the licensing body itself: see also Fawcett Properties Ltd v Buckingham County Council [1961] AC 636, 678 (HL).
Once it is accepted that the Authority was entitled to impose conditions the details of which are to be approved by itself subsequently, the uncertainty argument really falls away. The approval necessary to secure compliance with the conditions is to be given by the specialist Authority which has statutory policy, supervision and monitoring roles. We were told that the conditions imposed, save for that relating to the community monitoring group, are substantially the same as those that have been imposed, and seemingly complied with, under previously granted casino premises licences. The conditions were settled prior to the decision finally granting the licence in discussions between the Authority and Riverside. Riverside, of course, makes no complaint of difficulty in understanding and meeting its obligations under the conditions before the casino commences operating. We have no doubt that the Authority has the necessary powers to ensure that if the conditions are not complied with the casino will not reach the point of commencing operations.
Accordingly, we are satisfied the Judge was correct and that the decisions are not invalid on the grounds advanced in the cross-appeal. We emphasise that the decision whether to grant or refuse a casino premises licence is for the Authority. The function of the Courts is limited to ensuring that the Authority acts within its powers and reasonably, in the sense of rationally. There is no general appeal to the Courts from decisions of the Authority (s49).

The result

The appeal is allowed and the order setting aside the decisions is quashed. It follows that the order for costs made in the High Court also must be quashed.
The appellants are entitled to costs in the High Court and in this Court. Costs in the High Court (where the parties were different) should be fixed in that Court in the light of this judgment. In this Court both appellants are entitled to costs and disbursements including the cost of preparing the case on appeal and the reasonable travel and accommodation expenses of counsel. Issues of quantum and on whom the burden of costs should fall may be the subject of memoranda if necessary.

Solicitors
Harkness Henry & Co, Hamilton, for First Appellant
Bell Gully, Auckland, for Second Appellant
Till Henderson King, Hamilton, for Respondents

[2000] NZCA 401

19 December 2000