George Thomas Hotels (Campsie) Pty Ltd & Anor v Station House Campsie Pty Ltd & Ors

By a summons filed on 18 January 2018 the plaintiffs seek:

Although the terms in which the summons was drafted made reference to two separate decisions, judicial review was sought only of the decision referred to in paragraph (1)(ii) of the summons.

The summons is supported by an affidavit of Tony Schwartz, solicitor, of 4 April 2018 which was read without objection. That affidavit was included in a Court Book containing the entirety of the evidentiary material which was admitted without objection and marked Exh A.

George Thomas Hotels (Campsie) Pty Limited (the first plaintiff) is the owner and operator of a hotel located at the corner of Hill and Beamish Streets, Campsie.

Golden Corridor Management Pty Limited (the second plaintiff) is the owner and operator of a hotel located at the corner of Beamish Street and Clissold Parade, Campsie.

Neville John Buckley (Buckley) was, in February 2015, the licensee of a hotel located at 590 New Canterbury Road, Hurlstone Park (“the Hurlstone Park Hotel”).

Station House Campsie Pty Limited (“the first defendant”) is a company operating a hotel known as the Station House Hotel from premises at 203 Beamish Street, Campsie (“the new hotel”)

The third defendant, the NSW Independent Liquor and Gaming Authority (the Authority) is a body constituted pursuant to s 6 of the Gaming and Liquor Administration Act 2007 (NSW) whose functions are prescribed by s 9 of that Act.

In 2015 the Authority received a series of applications made by Buckley under the Liquor Act 2007 (NSW) (“the LA”) seeking (inter alia):

The gaming machine threshold is the maximum number of gaming machines that may be kept at any venue that is permitted to keep such machines.

On 16 December 2015, the Authority determined, pursuant to s 34 of the GMA, to refuse the GMA Application (“the first decision of the Authority”). In reasons given on 10 March 2016 the Authority stated (commencing at [221]):

Commencing at [224] of its reasons, the Authority reviewed a number of decisions in which the term “immediate vicinity” had been considered. Having done so, and having reviewed other aspects of the material put before it, the Authority concluded (at [252]):

Buckley, along with the first defendant, commenced proceedings in this Court for judicial review of the first decision of the Authority. Those proceedings were heard by Adams J. On 2 November 2016 her Honour made orders (inter alia) quashing the first decision of the Authority and remitting the matter to the Authority to be determined according to law: Buckley v Independent Liquor and Gaming Authority [2016] NSWSC 1533. Because of the way in which the current matter has proceeded before me, it is necessary to make reference to some aspects of her Honour’s decision.

Four grounds of review were advanced in the proceedings before Adams J, namely that the Authority erred:

Commencing at [46] of her judgment, and in the context of the third ground of review, her Honour considered a number of authorities in relation to the meaning of the expression “immediate vicinity”. Her Honour said (at [46]):

Having considered a number of authorities her Honour then said (at [54]):

Her Honour then said (at [78]):

In the end result, her Honour:

In dismissing the third ground of review, her Honour said (commencing at [114]):

On 30 December 2016, with the benefit of the determination and observations of Adams J, the solicitors for the first and second defendants made a lengthy written submission to the Authority in respect of GMA application. By reference to paragraphs [46], [54] and [78] of Adams J’s decision set out above, they urged the Authority to find that the premises of the new hotel were not in the “immediate vicinity” of the school, and to determine the GMA application accordingly.

The solicitors for the plaintiffs also made submissions to the Authority on 15 December 2016. In urging the Authority to refuse the GMA application, the plaintiffs’ submissions stated the following (commencing at 6.4):

The submissions of the plaintiffs’ solicitors went on to state (commencing at 6.11):

On 7 March 2017 the manager of the Authority wrote to the solicitors for the plaintiffs and the defendants stating the following:

On 10 January 2018, the Authority approved the GMA application and increased the gaming machine threshold at the new hotel to 27. In doing so, the Authority determined that it was not satisfied that that the premises of the new hotel were situated in the immediate vicinity of any school, place of public worship or hospital. It is that determination of which the plaintiffs now seek judicial review.

At this point, it is appropriate to set out a number of legislative provisions which were germane to the Authority’s decision.

Section 44(1) of the GMA provides as follows:

Section 44A of the GMA is in the following terms:

Importantly, cl 36 of the Gaming Machines Regulation 2010 (“the Regulation”) is in the following terms:

Section 48(5) of the LA is in the following terms:

Commencing at [233] the Authority made reference to a number of decisions in which the meaning of the term “immediate vicinity” in licensing legislation, both in NSW and in other jurisdictions, had been considered. Having acknowledged that there was no binding superior court decision as to the proper interpretation of that term, the Authority said the following (commencing at [241]):

Paragraphs 10 and following of the summons pleaded several grounds of review in terms which might be described as “all-encompassing”. In the course of oral argument, senior counsel for the plaintiff submitted that the Authority had determined that:

It was submitted that in these circumstances, the Authority had erred in:

Senior counsel for the plaintiffs commenced his submissions by referring to the fundamental principle that the task of statutory construction begins with a consideration of the text itself, and that the language which has actually been employed in that text is the surest guide to legislative intention: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ. He submitted, by reference to the definition in the Macquarie Dictionary (7th Edition) that the plain and ordinary meaning of the term “vicinity” was:

Senior counsel also relied upon the Oxford Dictionary definition of the word “vicinity”, namely:

By reference to these definitions, senior counsel submitted that for the purposes of determining whether the new hotel was in the immediate vicinity of the school, cl 36(2) of the Regulation did not allow for the consideration of any discretionary factors, but required the Authority to ascribe a plain English meaning to the term “immediate vicinity”. It was submitted that as a matter of plain English, the premises of the new hotel were located within the “immediate vicinity” of the school, and that the Authority erred in finding to the contrary. It was submitted that the fact that the two premises were between 50 and 70 metres apart was, of itself, a sufficient basis upon which to conclude that the new hotel premises were in the immediate vicinity of the school within the meaning of cl 36(2).

Senior counsel for the plaintiffs submitted that cl 36(2) made no provision for, and did not permit, consideration of any matter other than physical proximity. It was submitted that questions such as whether or not there would be any interference with, or impact upon, the use of other facilities by the operation of the new hotel or the behaviour of its patrons, were irrelevant to the determination that the Authority was required to make, and that by impermissibly taking such considerations into account, the Authority had erred.

Senior counsel for the plaintiffs submitted that for the purposes of cl 36(2), the sole consideration was whether or not something was “very near” or “close”, and that questions of nuisance, inconvenience or distraction to persons using nearby facilities were irrelevant. He submitted that in determining whether the premises of the new hotel were in the immediate vicinity of the school, the relevant inquiry was not directed to issues of effect, inconvenience, bystander observations or impact. He submitted that although, under other statutes, an issue may arise as to whether the impact upon persons having resort to the premises may affect the exercise of a discretion, there was no room for such a consideration in respect of cl 36(2) because the premises of the new hotel either were or were not in the “immediate vicinity” of the school.

Senior counsel further submitted that the fact that the new hotel and the school were not adjacent to each other did not mean they were not in the immediate vicinity of each other. It was submitted that the application of the legislation was not limited to properties which were adjoining, and that to rely upon the fact that the properties were not immediately adjacent as a factor supporting a conclusion that they were not in the immediate vicinity of each other was erroneous. This, it was submitted, was because such factors distracted from the enquiry demanded by cl 36(2), and demonstrated the fact that primacy was given by the Authority to a consideration which was irrelevant.

Senior counsel further submitted that the various considerations which had been impermissibly taken into account by the Authority said nothing about the issue raised by cl 36(2), namely the physical proximity or distance between the new hotel premises and the school. It was submitted that in taking into account matters of social impact in the way in which it did, the Authority had erred.

It was further submitted that cl 36(2) required the Authority to make a positive finding, one way or the other, about whether premises were in the immediate vicinity of each other. It was submitted in these circumstances that the conclusion expressed by the Authority at [265] of its reasons, in terms that it was “not satisfied” that the new hotel premises were in the immediate vicinity of the school for the purposes of cl 36(2), reflected the Authority having asked itself the wrong question.

Finally, and in reliance upon his previous submissions, senior counsel for the plaintiffs submitted that the decision of the Authority was irrational in the sense of being unreasonable, and that its reasons were inadequate. He submitted that if I were to find in favour of the plaintiffs, it would necessarily follow that the premises of the new hotel were in the immediate vicinity of the school, and that there would therefore be no utility in the matter being remitted to the Authority for its further consideration. In these circumstances it was submitted that the appropriate order would simply be to quash the Authority’s decision in respect of the GMA application.

The primary submission advanced by senior counsel for the defendants was that the issue of “immediate vicinity” in cl 36(2) required the Authority to engage in an evaluative, multi-factorial assessment of the relationship between the site of the new hotel and the school. It was submitted that depending upon the circumstances of a particular case, but necessarily in the present case, the determination of this issue properly included the Authority making an assessment of matters such as the general neighbourhood, the potential interactions between the two premises, and other similar factors.

Senior counsel submitted that in order to obtain the relief sought, it was incumbent upon the plaintiffs to establish that it was not open to the Authority to have regard to anything other than the lineal distance between the two premises for the purposes of determining whether or not the new hotel was in the immediate vicinity of the school. It was submitted that the Authority was not required to find that the two premises were in the immediate vicinity of each other merely because there was a distance of somewhere between 50 and 70 metres between them and that in these circumstances, the reasons of the Authority disclosed no error.

In developing these submissions, senior counsel for the defendants emphasised that when these issues were most recently before the Authority, the plaintiffs had in fact urged the Authority to take into account the various factors which they now argued had been wrongly considered. It was submitted that this was relevant, not only to an understanding of why the Authority reached the decision that it did, but to the exercise of this Court’s discretion to refuse relief to the plaintiffs even if error was established. It was submitted that in commencing these proceedings, the plaintiffs had completely departed from the position they had adopted before the Authority, and were now taking issue with the fact that the Authority had taken into account the very matters which they themselves had urged were relevant.

Senior counsel for the defendants further submitted that properly understood, the complaint made by the plaintiffs was that the Authority had failed to give proper weight to the lineal distance between the new hotel premises and the school. It was submitted in those circumstances that it was necessary to proceed with caution, lest this Court exceed its supervisory jurisdiction by engaging in a review on the merits: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33.

Senior counsel for the defendants further submitted that both the terms of cl 36(2) and a number of authorities were inconsistent with the central tenet of the plaintiffs’ submissions, namely that questions of lineal distance essentially determined whether or not premises were in the immediate vicinity of each other. It was submitted that far from taking into account considerations which were irrelevant, the entirety of the considerations taken into account by the Authority were material to the assessment of the neighbourhood as a whole. In this respect, senior counsel submitted that a principal flaw in the plaintiffs’ position was that it sought to substitute, for the term “immediate vicinity”, synonyms such as “close to”, “very near”, “sufficiently close” and “physically proximate”, in circumstances where such terms did not reflect the terms of cl 36(2).

Finally, to the extent that it was submitted that the reasons of the Authority were inadequate, senior counsel for the defendants submitted that the reasons for any administrative decision were not to be minutely and finely construed with an eye attuned to error. It was submitted that such reasons were not required to be lengthy or elaborate, and that their content would necessarily depend upon the particular case under consideration, and the matters in issue. It was submitted that the fundamental requirement was that such reasons disclosed the essential ground(s) upon which the relevant decision rested, and that this test had been met in the present case.

In the course of argument I was taken to a number authorities in which the term “immediate vicinity” has been considered. It is appropriate that I commence my consideration of the issues by reference to those authorities.

In Ex-parte Paton (1929) 30 SR (NSW) 67, the respondent was the holder of a publican’s licence in respect of premises in the city of Sydney. He applied to the Metropolitan Licensing Court for an order for the removal of that licence to other premises. His application was refused. On appeal, the order was set aside and the removal was granted, subject to conditions. A group of objectors then made an application for a writ of certiorari to remove and quash that decision. One of the grounds relied upon was that the premises were in the immediate vicinity of a place of public worship, and that therefore the jurisdiction of the Court was ousted. As to that ground Ferguson ACJ said (at 70):

In Mullens v Norton (1938) VLR 292, the applicant applied to the Licensing Court for the grant of victualler’s licence for certain premises. It was an available ground of objection to the grant of such a licence that the premises for which the licence was sought were in the immediate vicinity of a place of public worship, hospital or school. The application was opposed on the ground that the premises from which the licence was proposed to operate were in the immediate vicinity of a place of public worship. It was not in dispute that the rear of the licensed premises was contiguous to church property incorporating a parsonage, that at the side of the parsonage site (and contiguous thereto) was other church property which was vacant except for a small garage, and that contiguous to that land was the land upon which the church stood. There was also no dispute that the distance between the nearest point of the church site and the nearest portion of the proposed hotel site was 72 feet. By majority, the Licensing Court disallowed the objection and concluded that the site of the proposed premises was not in the immediate vicinity of the place of public worship.

Before the Full Court of the Supreme Court of Victoria the question for determination depended upon the meaning to be assigned to the term “the immediate vicinity”. Lowe J (with whom Mann CJ agreed) observed that the relevant legislation did not reveal any clear indication of the purpose which was sought to be achieved by the inclusion of that term. His Honour concluded (at 295) that the Court was, as a consequence, “thrown back upon their meanings simply as English words in the context used” before saying:

His Honour then said (at 295):

In a dissenting judgment, Gavan Duffy J said (at 297):

In Dean v Lewitz (1958) 76 WN (NSW) 349, Ferguson J considered the provisions of s 29 of the Liquor Act 1912 (NSW) (“the 1912 Act”) which dealt with objections to the granting of liquor licences. An available objection under s 29(f) was that the licensed premises were in the immediate vicinity of a place of public worship, hospital or public school. In reference to the decision in Mullens v Norton his Honour said (at 351):

In reaching those conclusions, his Honour followed the earlier decision of Ferguson ACJ in Ex-parte Paton.

In Ex-parte Godkin; re Fitzmaurice (1969) 90 WN (Pt 1) (NSW) 159, the Court of Appeal again considered the provisions of s 29(f) of the 1912 Act. Wallace P (with whom Walsh and Holmes JJA agreed) said (at 161):

Walsh JA observed (at 162) that the words “in the immediate vicinity” were ordinary English words which had no defined statutory meaning and no technical legal meaning. His Honour concluded (at 163) that whether a place of public worship was in “the immediate vicinity” of a proposed licensed area was a question of fact and that it could not be laid down, as a matter of law, that some particular distance may be specified as that which is described by the expression “the immediate vicinity”. His Honour went on to say (at 164):

Finally, in Hinton v Lane [2009] NSWSC 37 Hoeben J (as his Honour then was) considered the provisions of s 37 of the GMA which provided (inter alia) as follows:

His Honour said (commencing at [33]):

Some of these authorities were also considered by Adams J in Buckley. At [78] her Honour concluded that they supported the proposition that the question of “immediate vicinity” was not merely a matter of distance. Her Honour further concluded (at [83]) that a consideration of whether premises were in the “immediate vicinity” of other premises involved an evaluative assessment, based upon all relevant material. I respectfully agree with those observations.

The principal proposition advanced by the plaintiffs, namely that the question of whether the new hotel was in the immediate vicinity of the school was to be determined by reference to the lineal distance between the two premises, runs completely contrary to the weight of the authorities to which I have referred. Perhaps with the exception of the decision in Mullens, those authorities overwhelmingly support the view that such determination is one in respect of which it is open to have regard to a variety of factors. That approach recognises, as Hoeben J pointed out in Hinton v Lane and as Ferguson ACJ pointed out in Ex-Parte Paton, that whether premises are in the immediate vicinity of one another will vary according to context. Such approach runs entirely contrary to the proposition advanced on behalf of the plaintiffs that the question is to be determined by nothing more than lineal distance. Lineal distance is but one relevant consideration. The weight to be given to it is a matter for the Authority.

The rationale which underlies such an approach is easily understood. Cl 36(2) is directed, at least in part, to ensuring that persons who attend certain places (in this case, the school) are protected from any interference which might emanate from licensed premises. The matters considered by the Authority at [253] and following of its reasons were relevant to that evaluation. It was necessary for the neighbourhood as a whole to be taken into account. The Authority’s approach was consistent with the line of authority to which I have referred and no error has been demonstrated.

I am also unable to accept the submission that the reasons of the Authority were inadequate. It is well settled that reasons of this nature are not to be minutely and finely construed, but are to be given a beneficial construction: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6. The reasons in the present case were comprehensive, and reflected a proper consideration and evaluation of the authorities to which I have referred. They also reflected the Authority having taken into account a number of matters which the plaintiffs urged were relevant, but with which the plaintiffs now seek to take issue.

I am also not persuaded that the Authority’s conclusion, expressed in terms that it was “not satisfied” that the new hotel was in the immediate vicinity of the school for the purposes of cl 36(2) (at [265]), is indicative of it having asked itself the wrong question. The fact that the particular requirement of cl 36(2) is expressed objectively is not decisive: Co-ordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [44] per Basten JA, citing Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 at 391; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [72].

Finally, I am unpersuaded that the Authority’s determination is unreasonable in the relevant sense: see the discussion in Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 commencing at [54]. This is particularly so where the determination was, as I have said, approached in a manner consistent with a well settled line of authority.

For the forgoing reasons, I make the following orders: