First Sovereign Trust Limited v Secretary of Internal Affairs [2014] NZHC 1689 (18 July 2014)

Last Updated: 5 August 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

UNDER	the Judicature Amendment Act 1972 and Part 30 of the High Court Rules
IN THE MATTER	of an application for judicial review
BETWEEN	FIRST SOVEREIGN TRUST LIMITED Applicant
AND	SECRETARY OF INTERNAL AFFAIRS First Respondent THE GAMBLING COMMISSION Second Respondent

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

_{JUDGMENT OF GODDARD J}

This judgment was delivered by me on 18 July 2014

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

Registrar/Deputy Registrar

Solicitors:

GCA Lawyers, Christchurch for Applicant

Crown Law, Wellington for First Respondent

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

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

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

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

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

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

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

granted to it on 1 March 2011.

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

to renew its Class 4 Operator’s Licence.

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

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

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

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

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

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

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

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

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

485-5861) are adjourned sine die.

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

Goddard J