Auld v Independent Liquor and Gaming Authority

Relevant law

1. Under cl 27 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), the parties to an application for administrative review of a decision are the applicant, the person or body in respect of whom an order or other decision is sought, the Attorney General or another relevant Minister if that person intervenes and any other person required to be joined or joined under s 44 of the NCAT Act. There is no dispute that the effect of this provision is that Mr Auld and the Authority are parties to the proceedings.
2. Section 44(1) of the NCAT Act gives the Tribunal a broad discretion to join a person as a party and s 44(2) gives allows the Tribunal to remove a person as a party: 44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has: (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party.
3. In Commissioner of Police v Fine [2014] NSWCA 327, the Court of Appeal set aside the Tribunal's decision to refuse an application by the Commissioner of Police to be joined as a party to proceedings between Mr Fine and the Authority. Mr Fine had applied for a review of a decision via the Authority to issue him with a long term banning order under s 116AE of the Liquor Act. The Commissioner of Police was the only party who could apply to the Authority for such an order. The Court of Appeal held that as the Commissioner of Police was the applicant to the Authority, he was a proper party to the review proceedings.
4. The facts in Fine are distinguishable from the facts in the present case, because the Secretary was not the applicant to the Authority. The following principles extracted from the judgment are nevertheless relevant: 1. the power to join a party in s 44(1), which is expressed in general terms, must be read in conformity with the power in s 44(2) to remove a party who has been improperly or unnecessarily joined (at [38]); 2. the discretion in s 44(1) should not be constrained by reference to the Administrative Tribunal Rules 2014, cl 27 (at [48]); 3. a person whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party (at [39]); 4. a party whose interests are affected by the decision will usually be a proper party (at [39]); and 5. the fact that a decision maker is a necessary party to proceedings for an administrative review of the decision "does not of itself require that party to take an active role in the proceedings" (at [39]).
5. When exercising its powers under the NCAT Act, including the power under s 44(1), the Tribunal is to seek to give effect to the guiding principle. That principle is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36.

Applicability of Hardiman principle

1. One basis on which the Authority applied to join the Secretary was that the Authority's involvement in the proceedings is constrained by the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
2. According to the Authority, it is necessary to join the Secretary to ensure that the Tribunal has before it a proper and effective contradictor. The Authority submitted that active participation in the proceedings "is considered to pose a risk to the perception of its impartiality in assessing future applications raising similar issues."
3. Under s 58(1) of the Administrative Decisions Review Act, the Authority must lodge with the Tribunal a statement of reasons for the decision under review and "a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal." The Authority has complied with those duties. The Tribunal has power to direct the administrator to lodge other documents which may be relevant to the determination of the application: Administrative Decisions Review Act, s 58(4). No such direction has been made in this case.
4. The Tribunal's role is to "decide what the correct and preferable decision is having regard to the material then before it" including "any relevant factual material": Administrative Decisions Review Act, s 63(1). Section 13A(2) of the Gaming and Liquor Administration Act states that "an administrative review under this section is by way of re-hearing rather than a new hearing."
5. The legislative framework obliges administrators to provide relevant material to the Tribunal to assist it to make the correct and preferable decision. Administrative review proceedings are not required to be conducted in an adversarial manner. In their written submissions the Authority acknowledged that the principles in Hardiman do not strictly apply to merits review proceedings in the Tribunal: New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420; Re Tascone and Australian Community Pharmacy Authority [2011] AATA 724; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422.
6. In my view, the Authority's degree of participation in the proceedings is not constrained by the principles in Hardiman.

Is the Secretary a necessary party?

1. There is no requirement for the Secretary to be joined under the NCAT Rules, but the Court of Appeal has held that a person whose interests are affected by a decision, including by reference to a "statutory interest", may be a necessary party: Fine at [39]. The Authority submitted that the Secretary has a "statutory interest" in the proceedings equivalent to, or greater than, the Commissioner of Police in Fine.
2. The Secretary is responsible for administering the legislation regulating the sale and supply of liquor in New South Wales. The Secretary has power to impose conditions on liquor licences, deal with complaints about licensed premises and restrict or prohibit activities related to the sale, supply or promotion of liquor; Liquor Act, ss 54, 59, 101-102A. The Authority can request the Secretary to inquire into, and report on any matter in relation to an application: Liquor Act, s 42(2).
3. The Secretary has a statutory right to make submissions to the Authority "in relation to any application made to the Authority under the gaming and liquor legislation": Gaming and Liquor Administration Act, s 37A. That legislation includes the Liquor Act: Gaming and Liquor Administration Act, s 4. The Secretary did make a submission in this case. The Authority is to take the submission into consideration before determining the application: Gaming and Liquor Administration Act, s 37(2). The Authority included the submission in the bundle of documents filed in accordance with s 58 of the Administrative Decisions Review Act.
4. While the Secretary has various rights and duties under the legislation, unlike the Commissioner of Police in long-term banning matters, he has no statutory interest which would make him a necessary party to the proceedings.

Is the Secretary a proper party?

1. Contrary to the Authority's submission, the Court of Appeal did not hold that a person or agency who had made a submission to the Authority as part of its deliberative process is a 'proper' party before the Tribunal. The Court held at [41], that a "party who is an applicant in the process before a decision-maker would also be a proper party." (Emphasis added.)

Exercise of discretion under s 44

1. Even though the Secretary is not a necessary party, the Tribunal may exercise the broad discretion under s 44 of the NCAT Act to join the Secretary as a party to these proceedings. Below is a list of the considerations I have taken into account in deciding not to exercise that discretion.

Lack of resources

1. Since the Act was amended with effect from 1 February 2016, the Authority is now a statutory corporation comprised of a Board of 8 members with more limited functions. Some administrative and processing functions have been transferred to the Department. Liquor & Gaming NSW, a division of the Department, provides administrative and secretariat support to the Authority. The Department provides data and other information to the Authority under s 42(2) of the Liquor Act. The Authority submitted that the legislation recognises that the Secretary is the repository of relevant information and has superior resources.
2. The Authority did not explain why it could not request and obtain any necessary resources from the Department to assist it in presenting all relevant material to the Tribunal.

Need for 'full' evidence

1. The Authority submitted that if the Secretary is not joined, the Tribunal might not have 'comprehensive' 'full' or 'up-to-date' evidence and submissions put before it. The Authority wishes to obtain the most up to date data and research on alcohol-related harm associated with the local area and with packaged liquor outlets generally. The Authority foreshadowed that it would obtain evidence from Dr Michael Livingston of La Trobe University and Dr Christopher Morrison from the University of Pennsylvania.
2. In addition, the Authority has contacted NSW Police to provide a submission or data on alcohol-related harm in Young.
3. It is apparent that the Authority has commenced the process of obtaining expert evidence itself. The Authority did not explain why it could not continue with those inquiries with the assistance of any information and resources from the Department.

Test case

1. This is the first time an application for a review of a decision made under s 48(5) of the Liquor Act has come before the Tribunal. The Authority submits that the review involves a novel statutory interpretation exercise and raises important public health and safety issues beyond the particular decision under review.
2. The Authority did not identify the questions of statutory interpretation that will arise in these proceedings. It is not apparent why, in circumstances where the Authority is represented by the Crown Solicitor, it would have any difficulty making submissions as to the proper construction of any relevant provision.

Secretary made a submission and has a statutory interest

1. According to the Authority it is at least arguable that because the Secretary made a submission to the Authority in this matter, he is a 'proper' party to the proceedings. The Authority acknowledged that the submission did not make any specific recommendations. Rather it listed risk factors associated with the kind of licence under consideration and the local area. Mr Auld commented on those submissions.
2. The Authority does not identify how the review of the decision in this case will affect the Department's operations. Nor is there any explanation as to the matters of wider public interest that are said to arise.
3. In Buckley v Independent Liquor & Gaming Authority [2016] NSWSC 760, the Supreme Court heard an application to join the Secretary to judicial review proceedings. The Authority had refused Mr Buckley's applications, one of which was to transfer a liquor licence from one premises to another. Mr Buckley sought judicial review of that decision. In circumstances where the Authority correctly submitted to the Court's jurisdiction, the Secretary was joined so that there could be an effective contradictor: Buckley v Independent Liquor & Gaming Authority at [17]. Button J held at [16] that it was significant, but not "adversely determinative" that the Secretary "did not play an active role in opposing the applications during the stage of submissions prior to the decision being made".
4. Mr Auld submitted that in this case, which involves merits rather than a judicial review of a decision, the Authority is not constrained from participating in the proceedings. I accept that that is the case. I also agree that the fact that the Secretary did not oppose the application is a factor weighing against joinder.

Degree of participation by the Authority

1. The Authority has foreshadowed that it will file a submitting appearance if the Secretary is joined. My understanding is that the Authority will not take any part in the proceedings and that, instead, the Secretary will provide evidence and make submissions to the Tribunal. The Court of Appeal held in Fine at [81] that "… the question whether a party (sic) should be joined as a party to the proceedings is not to be determined by reference to the question of whether the decision-maker is or is not an active protagonist in the proceedings." The Authority may choose to take an active part in the proceedings or to appear as a friend of the Tribunal.

Prejudice to the Applicant

1. The prejudice to Mr Auld if the Secretary is joined is that the hearing will be delayed.

Conclusion

1. Merits review proceedings before the Tribunal are not conducted in a strictly adversarial way. The Tribunal makes its decision on the basis of all relevant factual material and any applicable written or unwritten law. The Authority's degree of participation in the proceedings is not constrained by the principles in Hardiman. The Secretary was not an applicant to the Authority but rather provided it with information. The Authority has access to further information and support from the Department and from NSW Police Force.
2. The just quick and cheap resolution of the real issues in dispute will be facilitated if the application for joinder is refused.

Application for adjournment

1. The joinder application was made on 4 May 2017 and heard on 16 May 2017 but not determined until 18 May 2017. Given that there are only six days left before the hearing, I grant an adjournment so that the Authority may determine whether it wishes to file a submitting appearance or play an active role in presenting the Tribunal with further relevant material. I also make further directions for the filing of evidence and submissions and for the matter to be set down for hearing.

Costs

1. The Authority submitted that any adjournment could be dealt with by way of a costs order if necessary.
2. Any application for costs in relation to the joinder application or thrown away by the adjournment is to be determined following the substantive hearing in accordance with the provisions of s 60 of the NCAT Act.

Orders

1. The Authority's application to join the Secretary, Department of Industry as a party to these proceedings is refused.
2. The Authority's application to adjourn the hearing is granted.
3. The hearing date of 24 May 2017 is vacated.
4. The Authority is directed to give to the Applicant and the Tribunal any further material on which it relies by 23 June 2017.
5. The Applicant is directed to give to the Authority and the Tribunal any further material in reply by 21 July 2017.
6. Parties to advise Registry of estimated length of hearing and suitable dates by 1 June 2017.
7. Any application for costs in relation to the joinder application or thrown away by the adjournment to be determined following the substantive hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2017