Auld v Independent Liquor and Gaming Authority

Mr Auld's case

1. Mr Anthony Hatzis, a solicitor acting on behalf of Mr Auld, lodged an affidavit in support of the Notice of Motion. He identified various items of material that the Authority proposed to rely on at the hearing that is fresh evidence in the sense that it was not material which was placed before the Authority at the time of the original decision. The Authority anticipates calling six witnesses, including one or two expert witnesses.
2. Mr Howard, Counsel for Mr Auld, contends that the approach that the Authority proposes is impermissible and mistakes the nature of the jurisdiction conferred on the Tribunal in these proceedings. He says that if the Authority is permitted to adduce the fresh evidence it has indicated it proposes to adduce, it will be necessary for him to adduce other evidence.

The "rehearing" and the approach to be taken to adducing fresh evidence

1. Jurisdiction is conferred on the Tribunal by section 13A of the Gaming and Liquor Administration Act which provides: 13A Review by NCAT of certain decisions of Authority (1) A relevant person who is aggrieved by a decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation prescribed by the regulations for the purposes of this section (a "prescribed application") may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of that decision. (2) An administrative review under this section is by way of rehearing rather than a new hearing. (3) An application for administrative review made under subsection (1) must: (a) be made within 28 days of notice of the decision being published on the website of the Department, and (b) be accompanied by the fee prescribed by the regulations. Section 36C requires notice of the decision to be published on the Department's website. (4) Subsection (1) does not apply in relation to a decision of the Authority that confirms, varies or revokes a decision made by a designated Public Service employee or other Public Service employee acting under a delegation given by the Authority. (5) In this section, "relevant person" in relation to a prescribed application means: (a) the applicant, or (b) a person: (i) who was required to be notified of the prescribed application, and (ii) who made a submission to the Authority or the Secretary in respect of the prescribed application.
2. Section 63 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. Mr Howard accepts that the Tribunal is generally conducting administrative review. However, he submits that an administrative review of a decision of the Authority under the Liquor Act is a particular species of administrative review, the nature and ambit of which is expressly and materially informed by section 13A(2) of the Gaming and Liquor Administration Act. That is, a review by way of rehearing rather than a new hearing.
4. He further submits that the precise nature of the statutory remedy on appeal or review will depend upon the provisions of the statute creating the right: Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 per McColl JA at paragraph [59]; Lacey v AG (Qld) (2011) 242 CLR 573 per French CJ at paragraph [57].
5. Mr Howard submits that it is evident from its terms that the express and sole purpose of section 13A(2) is to dictate that this particular species of administrative review is to be determined by way of 'a rehearing rather than a new hearing. The provision distinguishes the 'rehearing' from a 'new hearing'. In regard to this distinction he referred to observations by French CJ in Lacey v AG (Qld) at paragraph [57] (footnotes omitted) Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are: 1. Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance. 2. Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error. 3. Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.
6. Mr Howard contends that the fundamental distinction between a "new hearing" and a "rehearing" is that:

• in the case of a new hearing the Tribunal hears the matter afresh and may hear it on fresh material, whereas
• on a rehearing the Tribunal determines the matter on the materials which were before the primary decision maker, subject to any express or implied capacity to rely on fresh evidence with leave of the Tribunal.

1. In Engelbrecht v Director of Public Prosecutions at paragraph [60] McColl JA noted: [60] Broadly speaking, there is a recognised distinction between first, appeals in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given, secondly, appeals de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error (appeal de novo), and, thirdly, appeals by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence (error based appeal). In the latter case, although the appeal is described as being "by way of rehearing", it does not "call for a fresh hearing or hearing de novo [and] the court does not hear the witnesses again."
2. Mr Howard contends that section 13A(2) of the Gaming and Liquor Administration Act is to be construed with reference to section 63 of the ADR Act. Such a construction leads to the conclusion that the Tribunal is to undertake a merit review, deciding what the correct and preferable decision is having regard to the material before it. However the effect of section 13A(2) is that the Tribunal is required to determine the matter on the basis of the materials which were before the primary decision maker subject to the Tribunal retaining an implied or incidental discretionary power to grant leave for fresh evidence to be adduced.
3. Mr Howard submits that fresh evidence should only be permitted to be adduced with the leave of the Tribunal and the grant of such leave should be the exception not the rule.
4. Mr Auld seeks leave to rely on the following fresh evidence: (i) the affidavit of Trent Auld sworn 26 April 2017 and (ii) the letters of support referred to in paragraph (3) of the applicants letter to the Registrar of the Tribunal of 10 May 2017 which were attached to that letter
5. It is intended that Mr Auld's affidavit will address what a factual premise upon which the Authority proceeded when it made its decision. Mr Auld asserts that an incorrect premise is evident from the Authority's published reasons. It is also intended that Mr Auld's affidavit will provide evidence as to the intention of the holder of the licence in relation to the ongoing rights attached to the licence if the application is refused.
6. The letters of support are said to be evidence relating to a discrete relevant issue in the proceedings.

The Authority's case

1. Mr Emmett, counsel for the Authority, generally agreed with Mr Howard in regard to the approach to be taken in construing section 13A of the Gaming and Liquor Administration Act with reference to section 63 of the Administrative Decisions Review Act. However he submitted that the provision in section 13A(2) that a review is by way or rehearing rather than a new hearing does no more nor less than require that all of the material before the Authority also form part of the record for the review in the Tribunal. That is the fundamental feature of a rehearing described by majority in Lacey at paragraph [57(3)]. 57. Appeals being creatures of statute, no taxonomy is likely to be exhaustive[141]. Subject to that caveat, relevant classes of appeal for present purposes are: 1... 3. Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error[145]. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence[146]. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance[147].
2. The Authority contends that parties before the Tribunal are not required to prove matters afresh, or to prove them to any different standard. However, a rehearing ensures that all material either gathered by the Authority or provided to it by way of submission will be before the Tribunal for the review.
3. The Authority noted that section 13A is silent on whether additional evidence may be admitted as well as the material before the Authority at first instance and submits that the Tribunal must look to the other provisions governing the review. As noted, section 63 of the ADR Act requires the Tribunal to have regard to any relevant factual material then before it. The Authority contends that there is no reason to give section 63 an operation any more limited than its ordinary language. Section 63(2) provides that the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator. Section 42 of the Liquor Act confers very broad powers to carry out investigations. If it receives an application for a licence, the Authority may carry out such investigations and enquiries in relation to the application as it considers necessary for a proper consideration of the application.
4. The Authority contends that it would be inconsistent with the terms of section 63 of the ADR Act, the objects of the Liquor Act, the concern for social impact on local and broader communities, and the Authority's role in the Tribunal as an expert administrator, to place a fetter on the Authority's ability to place relevant evidence before the Tribunal to assist the Tribunal to make the correct and preferable decision.
5. It submits that there is every reason to admit the Authority's additional evidence to assist the Tribunal in making this decision. It further submits that if leave is necessary, it should be granted. The additional evidence could include: a. expert evidence from Dr Christopher Morrison and related materials about the impact of particular kinds of licenses on particular kinds of community (being the sort of evidence that the Authority, with its specialist experience, is well placed to put before the Tribunal to assist); b. updated BOCSAR data statistics; and c. an updated response from the NSW Police
6. Mr Emmett submitted that as the Authority already has expertise in the area addressed by the Morrison report it did not consider that it needed that expert opinion and was able to reach its conclusion without it. However, he submits that this Tribunal doesn't yet have that expertise and so the Authority seeks to put the report before the Tribunal to assist the Tribunal in reaching its decision. In support of this submission Mr Emmett relies on views expressed by the Victorian Court of Appeal decision in Macedon Ranges Shire Council v Romsey Hotel (2008) 19 VR 422 regarding the role to be played by the Authority to assist the Tribunal in the review of its decision, including by seeking to support the decision under review. The Court of Appeal observed at paragraph [31]: "Part of the rationale for such participation is that the decision-maker has a unique contribution to make to the review. The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision-maker has experience, knowledge and expertise possessed neither by the tribunal nor by any adversary party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed exclusively by the aims and objectives of the statutory scheme"
7. The Authority also contends that Mr Auld does not need leave to adduce additional evidence in the Tribunal. However, if the Tribunal concludes that leave is necessary, the Authority does not object to leave being granted, but it says that if leave is granted to Mr Auld then it should also be granted to the Authority.

Discussion

1. As noted, the issue for consideration concerns the nature of the proceedings. Section 13A(2) of the Gaming and Liquor Administration Act provides that a review is by way of rehearing rather than a new hearing. Mr Auld's application addresses the work to be done by that provision in light of the general provision contained in section 63 of the ADR Act.
2. Mr Auld contends that there is properly a requirement that fresh evidence that was not before the decision maker in the first instance may only be adduced with the leave of the Tribunal. The Authority contends that it can lead fresh evidence, subject to issues of relevance and procedural fairness. There is no argument between the parties that these matters come down to statutory construction.
3. In Engelbrecht v Director of Public Prosecutions Justice McColl noted at paragraph 58: "58.The task of statutory interpretation is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have. The exercise must begin with a consideration of the text, taken in context, bearing in mind that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute."
4. Her Honour then discussed the distinction between appeals in the strict sense, appeals de novo where the court hears the matter afresh, and appeals by way of re-hearing where the court conducts a re-hearing on the materials before the primary decision maker. In some cases it has the power to receive additional evidence. Her Honour went on to say at paragraphs [60] - [61] that "although the appeal is described as being "by way of rehearing", it does not "call for a fresh hearing or hearing de novo [and] the court does not hear the witnesses again." One of the indicia of a rehearing function is the conferral of a discretion on an appellate body to admit further evidence. Such a power is of a remedial nature conferred "to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures."
5. The parties are in agreement it is not necessary to demonstrate an error.
6. I agree that section 13A must be given some sensible work to do. In my view, the construction argued by the Authority does not achieve that.
7. The Authority contends that section 13A(2) "does no more than require that all of the material before the Authority also form part of the record for the review of the Tribunal.
8. However, section 58(1)(b) of the ADR Act requires the decision maker to forward to the Tribunal "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". If the construction of section 13A(2) argued by the Authority is correct, then section 58(1)(b) of the ADR Act does not have any sensible work to do.
9. I am in general agreement with the construction proposed by Mr Howard. In my view, as a result of the provision in section 13A(2), the Tribunal is required to determine the matter on the basis of the materials which were before the primary decision maker. However, this position is subject to the Tribunal retaining the discretionary power to grant leave for fresh evidence to be adduced. Where leave would properly be granted, the Tribunal can exercise its function under section 63 of the ADR Act.
10. In the circumstances I am satisfied that the additional material which the Authority wishes to put before the Tribunal could be of assistance to the Tribunal in reaching its decision. That being the case I am also of the view that leave should be granted to the Authority to adduce that material. A timetable for filing that material must necessarily take account of the limited time available before the hearing date.

Orders 1. No evidence is to be adduced in the proceedings which was not before the Respondent when the Respondent made its determination on or about 14 December 2016, except with the leave of the Tribunal. 2. The Applicant has leave to adduce the evidence filed under cover of the Applicant's solicitor's letters dated 24 April 2017 and 10 May 2017. 3. The Independent Liquor & Gaming Authority has leave to adduce the following further evidence: 1. expert evidence from Dr Christopher Morrison and related material; 2. updated BOCSAR data statistics, and 3. an updated response from the NSW Police

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: 21 November 2017