Issue: September 2022
Access the decision: Tourist Accommodation Pty Ltd v Independent Liquor and Gaming Authority [2022] NSWSC 1277
The plaintiff had applied for an increase in the 'gaming machine threshold' of a hotel (pursuant to s. 34 of the Gaming and Liquor Administration Act 2007 (the GM Act)) and the approval of its 'Class 1 Local Impact Assessment' accompanying the threshold increase application (as required in the circumstances set out in s. 35 of the GM Act). The defendant Authority refused both applications.
The plaintiff sought judicial review of both decisions on the grounds that the Authority had: misconstrued evidence; denied the plaintiff natural justice; and misconstrued the powers conferred by s. 36(3) of the GM Act and having regard to irrelevant considerations.
Acting Justice Griffiths held that:
1. The Authority did not err in failing to have regard to a statement in a letter sent by the plaintiff regarding monetary contributions because it was either privileged, primarily directed to ongoing NCAT proceedings, or not a clear expression of an intent to make a contribution pursuant to the guidelines. The Authority was not required to disclose a precise monetary contribution prior to making a decision nor make a precise contribution a condition of approval.
2. The Authority complied with its procedural fairness obligations by providing a copy of the relevant report and inviting the plaintiff to comment.
3. The Authority did not misconstrue its powers. The plaintiff's submission produced an unduly narrow construction of 'otherwise appropriate' in s. 36(3)(e) of the GM Act. The proposed factual foundation of the irrelevant considerations submission was also rejected. His Honour also held that the Authority had not played an inappropriate part in the proceeding, noting that this part was confined by primarily 'assisting the Court on points of legal principle', providing limited evidence, not cross-examining and having independent counsel.
Access the decision: Almeddine v State Parole Authority and Attorney-General of NSW [2022] NSWSC 726
The plaintiff sought judicial review of the State Parole Authority's (the Authority's) decision to refuse him parole under Part 6, Division 3A of the Crimes (Administration of Sentences) Act 1999. In determining that Mr Alameddine was a 'terrorism related offender' and that Division 3A was therefore applicable, the Authority found that Mr Alameddine had 'associated' with persons who had advocated support for terrorist acts or violent extremism within the meaning of s. 159B(1)(e).
The plaintiff contended that s. 159B(1)(e) was not engaged unless it was established that the offender in question knew of the activities of the person with whom he or she had an association (the knowledge requirement) and shared a common purpose or interest, in respect of such activities, with the person with whom he or she had that association (the common purpose requirement) and that the Authority had failed to properly address the common purpose requirement in making its decision to refuse parole. The Attorney General submitted that such a construction was contrary to the ordinary meaning of the word 'association', the context of the provision and the legislative purpose of Division 3A.
The Court rejected the construction advanced by the plaintiff, noting that there was nothing in the ordinary meaning of 'association' which necessarily implies a common purpose. Furthermore, the context and purpose of the provision were considered to support a broad interpretation.
09 Jun 2023