1. On 25 July 2024, C & I Culinary Pty Ltd (Applicant) applied to the Victorian Liquor Commission (Commission) under the Liquor Control Reform Act 1998 (LCR Act)0F[1] for a renewable limited licence for the premises at 2/156 Torquay Road, Grovedale 3216 (Premises) trading as Colombo Brothers (Original Application).
2. By the Original Application, the Applicant sought a renewable limited licence to provide liquor only with the purchase of take-away meals from the Premises for consumption off the Premises.
3. The Applicant proposed to serve 10 lines of liquor comprising beer and pre-mixed liquor in 330ml cans with a maximum amount of six cans per transaction.
4. The Applicant proposed to sell only liquor sourced from Sri Lanka or India.
5. By the Original Application, the Applicant sought to trade liquor during the following hours:

(a) Monday to Saturday between 9am and 11pm;

(b) Sunday between 10am and 11pm; and

(c) ANZAC Day between 12noon and 11pm.

1. In accordance with section 33, a copy of the Original Application was served on the Chief Commissioner of Police and the Licensing Inspector1F[2] (together, Victoria Police) and the City of Greater Geelong (Council) on 3 September 2024. Neither Victoria Police nor the Council objected to the Original Application. There were no residential objections.
2. On 24 January 2024, a delegate of the Commission (the Delegate) made the decision to refuse to grant the licence (Original Decision). Correspondence sent to the Applicant that day indicated that the decision to not grant the licence was due to the proposal falling under section 22(1)(c) which provides that the Commission must not grant a licence in respect of premises that, in the opinion of the Commission, are used primarily as a convenience store.

1. On 6 February 2025, the Applicant applied for an internal review of the Original Decision (Review Application).
2. In completing the Review Application, the Applicant provided the following reasons for applying for review of the Original Decision:

(a) "The decision was based on section 22(c) [sic] of the Liquor Control Reform Act, however, [the Delegate] appears to have failed to consider the extend [sic] of one operation to the other with the bulk of the operation based around the supply of food with a small specialized grocery option in Sri Laken [sic] cuisine, this is not a convenience store as defined under the Act";

(b) "This venue is a specialized cultural grocer supplying Sri Laken [sic] foods as is evidenced by the photos provided in the application"; and

(c) "The scale of the supply is extremely limited and is restricted to supply with food service only as is the case with many venues that supply food ...".2F[3]

1. Division 2 of part 9 governs internal review applications. Under section 152, the Original Decision is a reviewable decision, and the Applicant is eligible to apply for a review of that decision. The Review Application was made pursuant to section 153.
2. Pursuant to section 157(1), the specific task for the Commission with respect to the Review Application is to make a fresh decision that:

(a) affirms or varies the Original Decision; or

(b) sets aside the Original Decision and substitutes another decision that the Commission on review considers appropriate.3F[4]

1. In effect, the Commission on review stands in the shoes of the original decision maker and must make a fresh decision with respect to the Original Application. In this case, the Commission must decide whether to:

(a) grant the Original Application and, if so, whether to do so subject to conditions;4F[5] or

(b) refuse to grant the Original Application.5F[6]

1. Under the LCR Act, an application for the grant of a licence may be contested or uncontested. The Original Application was uncontested, as no objections were received under division 5 of part 2 within the relevant period.6F[7]
2. Where an application is an uncontested application, section 44(1) provides, subject to division 3 of part 2, that the Commission must grant or refuse to grant an uncontested application at any time after the expiry of the relevant period.
3. Section 44(2) empowers the Commission to refuse to grant an uncontested application on various grounds, including that granting of the application would be conducive to or encourage harm.7F[8]
4. Section 44(4) provides that the Commission may have regard to any matter the Commission considers relevant and make any enquiries the Commission considers appropriate.
5. Section 172W(3) provides that the Commission is not bound by the rules of evidence but may inform itself in any way it thinks fit, and is bound by the rules of natural justice.

1. Sections 172D(3) and 172U(3)(b) require the Commission, in exercising its internal review power, to have regard to the objects of the LCR Act and any decision-making guidelines in respect of the regulation of liquor issued by the Minister. The objects of the LCR Act are set out at section 4(1) as follows:

_(a) to contribute to minimising harm including by - _

(i) providing adequate controls over the supply and consumption of liquor; and

(ii) ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life; and

(iii) restricting the supply of certain other alcoholic products; and

(iv) encouraging a culture of responsible consumption of alcohol and reducing risky drinking of alcohol and its impact on the community; and

(b) to facilitate the development of a diversity of licensed facilities reflecting community expectations; and

(c) to contribute to the responsible development of the liquor, licensed hospitality and live music industries; and

(d) to regulate licensed premises that provide sexually explicit entertainment.

It is the intention of Parliament that every power, authority, discretion, jurisdiction and duty conferred or imposed by this Act must be exercised and performed with due regard to harm minimisation.8F[9]

harm _means harm arising from the misuse and abuse of alcohol, including - _

(a) harm to minors, vulnerable persons or communities, including groups within communities; and

(b) family violence; and

(c) anti-social behaviour, including behaviour that causes personal injury or property damage.

1. In exercising the internal review power, the Commission:

(a) must consider all the information, material and evidence before the original decision maker;9F[10] and

(b) may consider further information, material or evidence.10F[11]

1. The Commission considers that, while the grounds of refusal outlined in section 44(2) are relevant considerations, the determination of an uncontested application is ultimately to be made pursuant to sections 44(1) and 157(1) at the discretion of the Commission, with reference to the objects of the LCR Act.
2. Under section 49, the Commission may impose any condition it thinks fit on the grant of an application.

Other sections of the LCR Act relevant to this matter

1. Division 3 of part 2 sets out the restrictions on the grant of licences, including section 22(1)(c) which provides that the Commission must not grant a licence in respect of premises that, in the opinion of the Commission, are used primarily as a convenience store.

1. A limited licence may be a temporary limited licence or a renewable limited licence.11F[12] Pursuant to section 14(1B), a renewable limited licence authorises the licensee to supply liquor at the times determined by the Commission and specified in the licence, and it may be renewed in accordance with the LCR Act. A limited licence may further be subject to any conditions determined by the Commission and specified in the licence.12F[13]
2. Section 26(1) provides that the Commission may grant a limited licence only if it is satisfied that the scale and scope of the supply of liquor the subject of the licence is limited in nature (Scale and Scope Requirement).

1. The Commission on review had before it, and considered, all the materials before the Delegate and further material provided by the Applicant following the Review Application, being:

(a) Original Application dated 25 July 2024;

(b) completed section 22 questionnaire dated 30 September 2024;

(c) responses received from the Applicant on 1 October 2024;

(d) photographs of the premises, including stock and food offerings;

(e) Original Decision of the Delegate dated 24 January 2025;

(f) Review Application received on 6 February 2025;

(g) responses received from the Applicant on 18 March 2025; and

(h) further responses received from the Applicant on 26 March 2025.

1. The Commission Chair, Mr John Larkins, viewed the Premises on 19 February 2025.

1. In deciding whether to exercise its discretion to affirm, vary or set aside the Original Decision and in turn grant or refuse the Original Application that is the subject of the Review Application, the Commission must determine the following key issues:

(a) whether the premises are used primarily as a convenience store;13F[14]

(b) whether the Scale and Scope Requirement is met;14F[15] and

(c) whether the grant of the Review Application would be conducive to or encourage harm,15F[16] or be contrary to the objects of the LCR Act, in particular the object of harm minimisation.16F[17]

Whether the premises are used primarily as a convenience store

1. Reference is made in the Original Decision to the Premises being a convenience store. In response, the Applicant submitted in their Review Application that the Delegate had failed to consider that the Premises was a specialised cultural grocer supplying Sri Lankan foods and not a convenience store. The Applicant also submitted that the bulk of their operation is based around the supply of take-away food and catering with a small specialised grocery option in Sri Lankan cuisine.
2. The fundamental question therefore in issue for the Commission to determine is whether the Premises are used primarily as a convenience store or something else, such as a take-away food retailer and specialised grocer.
3. Section 3 of the LCR Act defines a 'convenience store' as being "a milk bar, mixed business or other premises of not more than 240 square metres on which food, drinks and other convenience goods are sold."
4. Neither 'mixed business' nor 'milk bar' are defined within the LCR Act.
5. The Macquarie Dictionary defines 'mixed business' as "a small grocery which also sells a selection of other types of merchandise".17F[18]
6. The Macquarie Dictionary defines 'milk bar' generally as "a shop, often with an open front, where milk drinks, ice cream, sandwiches, etc., are sold" and further defines it regionally for Victoria as a 'corner store', being "a small local shop selling a range of goods for domestic consumption."18F[19]
7. None of those definitions are inconsistent with the LCR Act.
8. The inclusion of "or other premises" in the LCR Act 'convenience store' definition provides that the Commission may still consider premises to be a convenience store despite not fulfilling the criteria for either a mixed business or a milk bar, provided the premises does not occupy more than 240 square metres on which food, drinks and other convenience goods are sold.19F[20]
9. 'Convenience goods' has not been defined within the LCR Act and no definition correlating to that term appears in the Macquarie Dictionary.
10. The Applicant has provided detailed evidence about their business model in both the Original Application and Review Application. In respect of the 'primary use' of the Premises, the Applicant has submitted that their operation consists of 70% takeaway food services and 30% supermarket grocery sales, with a strong emphasis on Sri Lankan cuisine prepared on-site. In the Applicant's response dated 18 March 2025, the Applicant indicated that while they do offer home delivery of meals, they do not intend to allow home delivery of liquor with those meals or otherwise provide home delivery of liquor.
11. On 18 March 2025, in response to a request for further particulars from the Commission, the Applicant provided the following business breakdown of their operations:

(a) 65% as take-away food;

(b) 5% as party catering;

(c) 9% as ready-made food;

(d) 20% as edible grocery; and

(e) 1% as non-edible grocery.

1. The Applicant also outlined that approximately 80% of the grocery items they stocked were imported via a wholesale supplier that imported the goods into Australia, with the remainder being local product.
2. The Premises occupies an area of approximately 70 square metres. The photographs and the red line plan provided by the Applicant show:

(a) shelves stocked with packaged food items;

(b) a bain-marie from which hot take-away food is purchased;

(c) a fridge containing ready-made meals prepared on the Premises; and

(d) a commercial kitchen.

1. The Commission notes that the Premises are located at the rear of a shopping plaza on a busy highway with considerable passing traffic and ample parking.
2. The Applicant's answers on the checklist of 'items sold on the premises' on the Section 22-Questionaire relevantly indicate:

(a) the Premises does not provide fresh fruit, fresh meat, individual ice creams, petrol, newsagency, dry cleaning, banking or postal services;

(b) of the 12 item types listed, the Applicant only answered in the affirmative for three, being;

1. 'fresh vegetables' - which is qualified as being 'around 5 items', including curry leaves, chilli and garlic;
2. 'hot snack food' - a category which on the questionnaire form is further described with the addition of the words "for example, pies, hot dogs, sausage rolls";
3. 'soft serve drinks' - a category which on the questionnaire form is further described with the addition of the words "for example, 'slurpies'";

(c) regarding those questions answered in the affirmative, the Commission notes that:

1. the availability of fresh vegetables is limited, and based on the information provided on the questionnaire, comprises of some dried vegetable items,20F[21] such as curry leaves;
2. the hot snack foods available are specialty Sri Lankan items, and not common snack items like those listed in the examples on the questionnaire; and
3. based on the photographs provided, there does not appear to be a soft serve21F[22] dispensing machine on the premises, although the applicant does stock some packaged soft drinks.

1. The Commission considers the Applicant's submissions are consistent with the viewing of the premises itself as well as the photographs provided.
2. In 1990, the convenience store issue22F[23] was considered by the Supreme Court of Victoria in _Seldan Pty Ltd v Liquor Licensing Commission and Wonga Park Village Supermarket Pty Ltd_23F[24] (Seldan). In 2009, the Victorian Civil and Administrative Tribunal (the Tribunal) decision in _McGain v Director of Liquor Licencing_24F[25] (McGain) found that an organic fruit and vegetable supplier, which at the time held a convenience store town planning permit, was not a convenience store for the purposes of the LCR Act. In doing so, the Tribunal relied heavily on the analysis in Seldan and highlighted the following indicia for determining what is a 'convenience store':

(a) a place from which odd items are purchased as a matter of convenience, either because it is located near to the consumer, or is open at times which are convenient;

(b) a place where a wide range of goods are sold as selected by the proprietor to suit the convenience of the customers; and

(c) premises from which a particular product, or range of products, are sold may cease to be convenience stores and become specialty shops.25F[26]

1. Relevantly, in McGain, the Tribunal considered items typically sold in convenience stores and considered it 'notable' that McGain did not sell certain items.26F[27] Further, the Tribunal observed that the products that McGain did sell which were in common with ordinary convenience stores were only available as organic varieties.27F[28]
2. This notion of speciality, as highlighted in Seldan,28F[29] is relevant to the current review. In the same way that common products were available only in 'organic' varieties in McGain, the Applicant has demonstrated that the packaged food products and household products they sell, which may fall into the same categories as other common products in convenience stores, are largely being offered in Sri Lankan variants. For these reasons, the Premises falls into the category of 'specialty shop' as contemplated in Seldan.
3. Further, the language of the LCR Act definition of 'convenience store', and the use of 'and' between the listed criteria of products sold (namely, "food, drinks and other convenience goods") means that the failure to satisfy all of the listed criteria would exclude the Premises from being considered a convenience store. In the present case, it has been demonstrated that the Premises does not sell 'convenience goods' as that term is commonly understood.
4. The purpose of section 22(1)(c) grew out of concerns over the frequency of minors in milk bars, convenience stores or mixed businesses, whether as staff or customers.29F[30] However, on the evidence before the Commission, those aspects of a typical convenience store which usually attract unaccompanied minors are not present at the Premises. Therefore, the Commission is satisfied on the current facts and circumstances that the Premises are more accurately described as a specialty shop/store, and not a convenience store. For this reason, the Commission is satisfied that section 22(1) of the LCR Act does not prohibit the grant of a licence.
5. The Commission is mindful of the statutory purpose of section 22(1)(c) and the object of the LCR Act to facilitate the development of a diversity of licensed facilities reflecting community expectations and has accordingly imposed a special condition.

1. As stated above, the Commission may grant a renewable limited licence only if satisfied that the Scale and Scope Requirement is met - that is, that the scale and scope of the supply of liquor the subject of the licence is limited in nature.30F[31]
2. There are no statutory signposts which prescribe specific factors for the Commission to consider in determining whether the Scale and Scope Requirement is met. On previous occasions, the Commission has considered "the nature, location, duration or frequency of hours of operation of the licence in question" as relevant to the Scale and Scope Requirement.31F[32]
3. The Commission considers that the nature of the licence sought by the Applicant is limited. The Commission notes that the proposed supply of liquor is limited only to sales with meals purchased at the Premises for consumption off the Premises. The Applicant proposes to offer a maximum of 10 lines of beer or pre-mixed liquor sourced from Sri Lanka or India, supplied in 330ml cans with a maximum amount of six cans per transaction.
4. In the response received from the Applicant on 26 March 2025, the Applicant indicated that the hours of operation at the Premises would not extend beyond a closing time of 9pm on any given day, signalling a reduction in the licence hours proposed in the Original Application. Given this, the Commission considers that the duration of hours of operation now sought by the Applicant is limited, being shorter than the ordinary trading hours specified in the LCR Act for other licence types.32F[33]
5. Consequently, the Commission is satisfied that the Scale and Scope Requirement is met.

Whether granting the application would be conducive to or encourage harm, or be contrary to the objects of the LCR Act

1. An application may be refused if granting the application would be conducive to or encourage harm.33F[34] In addition, the Commission must exercise its discretion whether or not to grant a licence with regard to the objects of the LCR Act, particularly the primary object of harm minimisation.34F[35]
2. The Commission notes that Victoria Police did not raise any concerns in relation to harm.
3. It is also noted that the person listed on the Original Application as being in day-to-day management or control of the Premises has completed new entrant training and currently holds a responsible service of alcohol certificate.
4. As stated at paragraph [50] of these reasons, the Premises are not typically the type of premises that would be frequented by unaccompanied minors. In accordance with the red line plan, the only liquor on display at the Premises would be contained within a display fridge behind the food service counter and could not be directly accessed by customers.
5. With the imposition of the conditions in Appendix A, the Commission is satisfied that adequate controls exist over the supply and consumption of liquor at the Premises and that any harm should be minimised. Accordingly, the Commission considers that the grant of a licence in this instance would not be conducive to or encourage harm and would not be contrary to the LCR Act's object concerning harm minimisation.

1. The Commission is satisfied that the Review Application meets all legislative requirements set out above. Accordingly, based on the reasons set out above, the Commission is satisfied that granting the licence the subject of the Review Application is appropriate in the circumstances.
2. The Commission has therefore determined to set aside the Original Decision and grant the licence the subject of the Review Application subject to the conditions set out in Appendix A.

The preceding 63 paragraphs are a true copy of the Reasons for Decision of Mr John Larkins (Chair), Mr James O'Halloran (Deputy Chair) and Mr Steven Brnovic (Commissioner).

Any reference to the Liquor Regulator below is a reference to the Victorian Liquor Commission, or any successor statutory office, body or officer however named, under the Liquor Control Reform Act 1998 (LCR Act) or successor legislation, that has powers and carries out regulatory functions equivalent to the Victorian Liquor Commission.

This licence is a renewable limited licence and authorises the licensee to supply liquor on the licensed premises for consumption off the licensed premises during the trading hours specified below.

The licensee shall not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the licence relates during or immediately after the trading hours authorised under this licence.

The supply of liquor shall be limited to no more than 10 lines of beer or pre-mixed liquor.

The place of origin for all liquor supplied must be either Sri Lanka or India.

The supply of liquor is only available to patrons purchasing take-away meals.

The quantity of liquor supplied per order for off premises consumption must not exceed six 330 ml bottles/cans of beer or pre-mixed liquor and supply is limited to one order per person per day.

The licensee must not use the above licensed premises to supply liquor to a person who makes an off-premises request.

At least one member of staff, who has been designated as being in day-to-day management or control of the premises, must have completed an approved responsible service of alcohol course within the preceding three years.

All copies of responsible service of alcohol certificates for members of staff must be at one central place within the licensed area for inspection if requested by a member of Victoria Police or the Liquor Regulator.

The licensee may supply liquor from the Premises only while the Premises operates as a specialty Sri Lankan foods store. Details of any change in the Applicant's operations that tend toward the Premises becoming a convenience store, or any increase in the supply of convenience goods at the Premises, must be reported to the liquor regulator at the time of change.

[1] All references to legislation are references to the LCR Act unless stated otherwise.

[2] As to the meaning of "licensing inspector", see section 3.

[4] Section 157(2) to (5) further prescribes the manner in which the Commission is to undertake internal reviews.

[7] Section 3(1) (definition of "uncontested application").

[9] See further Kordister Pty Ltd v Director of Liquor Licensing (2012) 39 VR 92; [2012] VSCA 325, which confirms that harm minimisation is the primary regulatory object of the LCR Act and therefore the primary consideration in liquor licensing decisions (although not to the exclusion of the other objects).

[15] Section 26(1). See [26] above.

[17] Sections 4 and 172D(3). The Commission notes that, in determining this matter, it has also considered each of the grounds set out in section 44(2).

[18] Macquarie Dictionary (online at 28 April 2025) 'mixed business'.

[19] Macquarie Dictionary (online at 28 April 2025) 'milk bar'.

[21] The Macquarie Dictionary definition for 'fresh' at definition 7 includes "not canned or frozen; not preserved by pickling, salting, drying, etc." (online at 28 April 2025).

[22] The Macquarie Dictionary defines 'soft serve' as "a gelatine confection, similar to but softer than ice cream, usually served in a cone" (online at 28 April 2025).

[23] In the context of the forerunner to s 22(1)(c), being the almost identically phrased s 60(1)(c) of the since repealed Liquor Control Act 1987 (Vic).

[24] Seldan Pty Ltd v Liquor Licensing Commission and Wonga Park Village Supermarket Pty Ltd (Supreme Court of Victoria, Nathan J, 15 May 1990).

[25] McGain v Director of Liquor Licencing [2009] VCAT 1081.

[26] Seldan (n 24) 7; McGain (n 25) [10]-[13].

[30] LexisNexis, Bourke's Liquor Laws (online at 21 March 2025) [LCR 22.5].

[32] See decision of Fynix Pty Ltd at 36A Vickers Street, Sebastapol premises (Liquor-Internal Review) [2016] VCGLR 19, [61].

[33] See LCR Act, section 3(1) (definition of 'ordinary trading hours'), which specifies the ordinary trading hours for a general licence, a late night (general) licence, an on-premises licence, a late night (on‑premises) licence, a restaurant and cafe licence, a club licence, a packaged liquor licence, a late night (packaged liquor) licence, a remote seller's packaged liquor licence and a producer's licence.