CMF Group Pty Ltd v Independent Liquor and Gaming Authority

NCAT Administrative and Equal Opportunity|2021-08-04

REASONS FOR DECISION

In November 2020, the Independent Liquor and Gaming Authority (the Authority) refused an application made by CMF Group Pty Ltd for a "packaged liquor licence" authorising CMF to sell liquor at 110 Spring Street, Bondi Junction (the Proposed Premises).
In its reasons for decision issued on 1 February 2021 (the Reasons), the Authority stated that it was not satisfied that the "overall social impact of the licence would not be detrimental to the well-being of the local or broader community". The Authority concluded that there was a risk that the grant of the licence would "exacerbate the existing alcohol-related crime, health and other social and amenity issues in the local and broader communities".
CMF has applied to the NSW Civil and Administrative Tribunal (NCAT) for review of the Authority's decision.
For the reasons that follow, I have decided that the application made by CMF for a packaged liquor licence (the Application) was invalid.

Was CMF's application for a packaged liquor licence invalid?

The Authority contends that the Application was invalid because CMF failed, as required by the Liquor Act 2007 (NSW) and Liquor Regulation 2018 (NSW) (the Regulation): 1. to notify Woollahra Municipal Council, when preparing its community impact statement, of its intention to make the Application and the process by which the Council would be able to consult with CMF about the Application (as required by cl 29 of the Regulation); 2. to notify Woollahra Municipal Council, within the time prescribed by the Regulation, that it had made the Application (as required by cl 22 of the Regulation).

Statutory framework

It is an offence to sell liquor to a person unless the seller is a person who is authorised by licence to do so: s 7 of the Liquor Act. Several types of licences may be issued under that Act, including a packaged liquor licence. A "packaged liquor licence" authorises a licensee to sell liquor from particular premises in sealed containers for consumption away from the licensed premises: s 29 of the Liquor Act.
Licence applications are to be made to the Authority: s 40(1) of the Liquor Act. Section 40(4) provides that an application for a licence must: (a) be in the form and manner approved by the Authority, and (b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and (c) be advertised in accordance with the regulations, and (d) comply with such other requirements as may be approved by the Authority or prescribed by the regulations. Note - See also section 48 which requires a community impact statement to be provided with certain licence applications.
Section 48 states: 48 Community impact (1) The object of this section is to facilitate the consideration by the Authority of the impact that the granting of certain licences, authorisations or approvals will have on the local community, in particular by providing a process in which the Authority is made aware of - (a) the views of the local community, and (b) the results of any discussions between the applicant and the local community about the issues and concerns that the local community may have in relation to the application, and ... (2) In this section - "relevant application" means any of the following - (a) an application for a … packaged liquor licence, … (3) A relevant application must be accompanied by a community impact statement. .…

Applications: advertising requirements

Headed "Advertising requirements", Division 1 of Part 3 of the Regulation imposes several advertising requirements on persons seeking to apply for a liquor licence. These include that an applicant must: 1. notify the occupier of "neighbouring premises" of the making of an application for a liquor licence: cl 21(1); and 2. if an application is made to the Authority, fix a notice relating to that application to the premises to which the application relates: cl 23.
In addition, cl 22 requires an applicant for a liquor licence to notify "other persons" of the making of an application. That notice must be given no later than two working days after the application is made and be in the form and be given in the manner approved by the Authority: cll 22(2), 22(3). Clause 22 provides: 22 Other persons to be notified of application (1) Each of the following must be notified by an applicant of the making of an application - (a) the local police, (b) the local consent authority, (c) if the premises to which the application relates are, or will be, situated within 500 metres of the boundary of another local government area - the local consent authority for that other area, (d) if the premises to which the application relates are, or will be, situated on Crown land within the meaning of the Crown Land Management Act 2016 - the Minister administering that Act, (e) if the application is a relevant application as referred to in section 48(2) of the Act - each of the other relevant stakeholders referred to in clause 29(2) or (3) (as the case requires), (f) any other person or body (including any class of person or body) that the Authority has advised the applicant must be notified. (2) The notice may be given before the making of the application but must be given no later than 2 working days after the application is made. (3) The notice must be in the form, and be given in the manner, approved by the Authority.
In certain circumstances the Authority has discretion to treat a failure to comply with a requirement imposed by Part 3, Division 1 of the Regulation as having been complied with, or to disregard that failure. Section 26 provides: 26 Compliance with advertising requirements (1) An applicant is taken to have complied with any of the requirements under this Division in relation to an application if the Authority is satisfied that the applicant has made all reasonable efforts to comply with the requirement. (2) The Authority may also determine that a failure to comply with a requirement under this Division is to be disregarded for the purposes of this Division if the Authority is satisfied that the failure is of a minor or technical nature.

Applications: consultation requirements

An application for a liquor licence must be accompanied by a community impact statement: s 48(3) of the Liquor Act. That statement must be prepared in accordance with the regulations and any requirements of the Authority and be in the form approved by the Authority: s 48(4) of the Liquor Act. The Authority must not grant a licence unless the Authority is satisfied, after having regard to, among other things, the community impact statement provided with the application, "that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community": s 48(5) of the Liquor Act.
The regulations may make provision for or with respect to the requirements that must be satisfied in relation to the preparation of a community impact statement (including consultation requirements): s 48(6)(a) of the Liquor Act.
In preparing a community impact statement, an applicant must provide each "relevant stakeholder" with a notice, in the form and manner approved by the Authority, containing information about the relevant application and the process by which the stakeholder is able to consult with the applicant on the relevant application: cl 29(1) of the Regulation. Where, as here, an application is made to the Authority for a packaged liquor licence, the application must be accompanied by a "category B community impact" statement: cll 27(1), 27(3). Clause 29(3) lists the relevant stakeholders for a category B community impact statement: (a) the local consent authority, (b) if the premises to which the relevant application relates are, or will be, situated within 500 metres of the boundary of another local government area - the local consent authority for that other area, (c) the local police, (d) the Ministry of Health, (e) the Department of Communities and Justice, (f) Transport for NSW, (g) the recognised leaders or representatives of the local Aboriginal community (if any) in the area, (h) the occupier of any neighbouring premises as referred to in clause 20, (i) such other stakeholders as are determined by the Authority.
Clauses 29(5) and 29(6) mirror cl 26 and state: (5) An applicant is taken to have complied with this clause if the Authority is satisfied that the applicant has made all reasonable efforts to comply with this clause. (6) The Authority may also determine that a failure to comply with this clause is to be disregarded if the Authority is satisfied that the failure is of a minor or technical nature.

Did CMF fail to comply with cl 22 and/or cl 29 of the Regulation?

The proposed premises are situated within the Waverley Local Government Area (LGA) and therefore, the "local consent authority" is the Waverley Local Council: s 4 of the Liquor Act.
As required by the Regulation, CMF gave Waverley Local Council a notice of the Application within two days of making the Application. In addition, in preparing the community impact statement, CMF gave Waverley Local Council a notice containing information about the Application and the process by which that Council was able to consult with CMF about its application.
Because the proposed premises are about 200 metres from the boundary of the Woollahra LGA, CMF was also required to give notice of the Application to the local consent authority for the Woollahra LGA, the Woollahra Municipal Council, within two days of making the Application: cl 22(1)(c) of the Regulation. In addition, in preparing the community impact statement, CMF was required to give Woollahra Municipal Council a notice containing information about the application and the process by which that Council was able to consult with CMF about its application: cl 29(3)(b) of the Regulation.
CMF was required to give Woollahra Municipal Council notice of the Application by 6 July 2020. As a result of an oversight CMF did not give that Council a notice until 24 May 2021.
In addition, in preparing the community impact statement, CMF failed, as required by cl 29 of the Regulation, to provide Woollahra Municipal Council, a "relevant stakeholder" (cl 29(3)(b)), with a notice containing information about its application and the process by which the Council was able to consult with CMF about that application.
In an email sent on 24 May 2021, CMF gave Woollahra Municipal Council a copy of its notice of intention to make an application and notice of having made the Application. In that email, CMF asked the Council "whether it is likely the Council would have objected or otherwise made a submission at the time the application was lodged". Later that day the Council responded, "Council does not wish to make a submission with respect to the application".
The parties agree that CMF failed to comply with the advertising and consultation requirements imposed by cll 22 and 29 of the Regulation.

Was the failure to comply with cll 22 and/or 29 of the Regulation of a minor or technical nature?

Submissions

CMF contends each failure can be properly characterised as being of a minor or technical nature for the following reasons.
First, after filing its application with NCAT for administrative review of the Authority's decision to refuse the Application, CMF became aware that it had failed to comply with cll 22 and 29 and promptly notified Woollahra Municipal Council of, and invited the Council to provide a submission in relation to, the Application. The Council informed CMF that it did not wish to make a submission about the Application. It follows that these failures had no bearing on the Authority's decision to refuse the Application and therefore can be characterised as being technical and minor in nature.
Second, apart from its failure to comply with cll 22 and 29(1) in respect of Woollahra Municipal Council, CMF assiduously complied with all other advertising and consultation requirements imposed by the Regulation and s 40(4) of the Liquor Act. CMF points out that it provided each of the following stakeholders with a notice of its intention to apply for a packaged liquor license and, on lodging the Application, a notice that it had done so in the form and in the manner prescribed by the Regulation:

local police, namely the Eastern Suburbs Licensing Command and the Eastern Suburbs Licensing Police;
Waverley Local Council;
the NSW Ministry of Health;
the Department of Family & Community Services (part of the Department of Communities and Justice);
Roads & Maritime Services (part of Transport for NSW);
the Metropolitan Local Aboriginal Land Council.

In addition, CMF points out that it distributed notices to occupiers of premises within 100 metres of the proposed premises by various means including letterbox drops, handing the notice to occupiers of retail or commercial premises or, if they were unattended, leaving notices at those premises.
The Authority contends that CMF's failure to comply with cll 22 and 29 of the Regulation cannot be described as either minor or technical in nature, for the following reasons.
First, despite being required to do so within two days of making the Application, CMF did not notify Woollahra Municipal Council until about 12 months after it had made the Application. In addition, in preparing the community impact statement, CMF failed to notify Woollahra Municipal Council of the Application and the process by which the Council could consult with CMF about it.
Second, CMF's argument that this non-compliance was of no consequence because when offered the opportunity to make a submission about the Application, Woollahra Municipal Council declined to do so, should be rejected because: 1. clauses 26(2) and 29(6) require consideration of the nature, and not the consequences, of the relevant failure; and 2. in any event, the email from the Council to CMF sent on 24 May 2021 said no more than that the Council did not wish to make a submission with respect to the Application. Notably, the Council did not respond to CMF's question: "whether it is likely the Council would have objected or otherwise made a submission at the time the application was lodged" (emphasis added).

Consideration

Clauses 26(2) and 29(6) of the Regulation permit the Authority and NCAT on review to disregard a failure to comply with cll 22 and 29, respectively, if "satisfied that the failure is of a minor or technical nature". Whether CMF's failure to comply with cll 22 and/or 29 is of a minor or technical nature turns on the proper meaning of cll 26(2) and 29(6). In D & D Natural Health Pty Ltd v Independent Liquor and Gaming Authority [2020] NSWCATAD 307, I summarised several principles of statutory construction, of which the following are relevant: "30 First, the process of construction begins with a consideration of the text itself (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 ("Alcan") at [47], Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 ("Thiess") at [22]). The text of the provision is to be construed according to the context "by reference to the language of the instrument viewed as a whole": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. The meaning of the text will often require consideration of the context, which includes the general purpose and policy of the provision and the mischief the provision is seeking to remedy (Alcan at [47]). Questions of context arise "in the first instance, not merely at some later stage when ambiguity might be thought to arise" (CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 (CIC) at 408; Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 at [31] and [57]. 31 Second, it is permissible to have regard to legislative history and extrinsic materials to determine the meaning of the words used (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 at 107 [39]) and to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (s 34(1)(b) of the Interpretation Act 1987 (NSW)). However, it is first necessary to determine the ordinary or natural meaning of the words used because it is primarily from them that the intention of the legislator is to be ascertained: M P Metals Pty Ltd v Commissioner of Taxation [1968] HCA 89; (1968) 117 CLR 631 at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 ("Cooper Brookes") at 304-305; Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 ("Provincial Insurance") at 560. 32 Third, while it is permissible to consult well known and authoritative dictionaries to determine the ordinary meaning of a word, ultimately it is the Court's or Tribunal's "understanding of the sense in which words are currently used" which is determinative: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 514; Provincial Insurance at 560."
The words "minor" and "technical" are capable of several meanings and take their meaning from the context in which they appear. Each is an ordinary English word. Of the several definitions given by the Macquarie Dictionary, the following appear to be relevant: "Minor 1. Lesser, as in size, extent, or importance, or being the lesser of two: a minor share; minor faults … one of inferior rank or importance in a specified class." "Technical 6. So considered from a strictly legal point of view or a rigid interpretation of the rules: a military engagement ending in a technical defeat."
I am not persuaded that CMF's failure to comply with cl 22 is of "a minor or technical nature" for the following reasons.
First, CMF failed to give Woollahra Municipal Council notice of making the Application within the time prescribed by the Regulation. The notice given was grossly out of time: about 12 months after the statutory deadline had passed. That failure could not be described as being either minor or technical in nature.
Second, CMF's argument that because it complied with all of the other requirements of s 40(4) of the Liquor Act, its failure to comply with the requirement imposed by cl 22(1)(c) is of a minor or technical nature, must be rejected. The use of the indefinite article "a", indicates that cl 26(2) of the Regulation requires the decision-maker to be satisfied that the subject failure is of a minor or technical nature. Clause 26(2) provides: (2) The Authority may also determine that a failure to comply with a requirement under this Division is to be disregarded for the purposes of this Division if the Authority is satisfied that the failure is of a minor or technical nature. (Emphasis added.)
While compliance with the other requirements of Part 3, Division 1 of the Regulation may be relevant to determining whether the discretion conferred by cl 26(2) should be exercised, it is not relevant to the proper characterisation of the subject failure.
Third, as submitted by the Authority, CMF is not assisted by Woollahra Municipal Council's response to its email sent on 24 May 2021. This is because cl 26(2) is concerned with whether the subject failure is of a minor or technical nature, not the consequences of that failure. In any event, as pointed out by the Authority, the Council's response of 24 May 2021 to CMF's email indicates nothing more than when it received notice of the Application, notably 12 months after that application was made and six months after that application had been refused by the Authority, the Council elected not to make a submission. It cannot reasonably be argued, as I understand CMF to suggest, that it can be inferred from the Council's response that had it received timely notice of the Application, it would have elected not to make a submission.
The above reasons apply equally to the question of whether the failure to comply with cl 29(1) can properly be characterised as being of a minor or technical nature. In addition, in relation to cl 29(1), there was total non-compliance as far as the notification of Woollahra Municipal Council was concerned. It was not the case that, in preparing its community impact statement, CMF gave the Council a late notice of the matters in cl 29(1); rather, CMF gave the Council no notice at all before finalising that statement.
I am not satisfied that CMF's failure to comply with cll 22 and/or 29 of the Regulation with respect to giving notice to Woollahra Municipal Council, can be characterised as being "of a minor or technical nature". Therefore, the discretion to disregard those failures, conferred by cll 26(2) and 29(6), cannot be exercised.

Did CMF make all reasonable efforts to comply with cll 22 and/or 29?

Clause 26(1) states, "An applicant is taken to have complied with any of the requirements under this Division in relation to an application if the Authority is satisfied that the applicant has made all reasonable efforts to comply with the requirement". Clause 29(5) is in similar terms and states, "An applicant is taken to have complied with this clause if the Authority is satisfied that the applicant has made all reasonable efforts to comply with this clause".
The agent for CMF who prepared the Application claimed that the failure to comply with cll 22 and 29(1) with respect to notice to Woollahra Municipal Council, was the result of an oversight because he did not realise that the proposed premises were within 500 metres of the Woollahra LGA. I accept this. However, I do not accept, as I understand CMF to suggest, that because those failures were unintentional and because CMF otherwise complied with the advertising and consultation requirements of the Regulation and s 40(4) of the Liquor Act, the powers conferred by cll 26(1) and 29(5) to disregard those failures can be exercised.
CMF not only failed to make "all reasonable efforts to comply" with the requirement in cl 22 to notify Woollahra Municipal Council of making the Application, within two days of making that application; it failed to make any efforts to comply until almost 12 months after the statutory deadline. CMF made no efforts at all to comply with the notice requirement imposed by cl 29(1) with respect to Woollahra Municipal Council.
It follows that the discretions to treat CMF as having complied with the requirements of cll 22 and 29 of the Regulation cannot be exercised.

What are the consequences of the failure to comply with cll 22(1)(c) and 29(1)?

In Coote v State of NSW and the Independent Liquor and Gaming Authority [2016] NSWSC 1492, Bellew J decided that the plaintiff's failure to comply with the advertising requirements imposed by the Regulation in respect of his application for an extended trading authorisation (ETA), invalidated that application, reasoning: "48 In my view, on a proper construction of s. 51(3)(c) of the Act [the predecessor to and relevantly identical to s 40(4)(c) of the Act] and cl. 9 of the Regulation, strict compliance with the advertising requirements was necessary and that, absent such compliance, the plaintiff's application for the ETA was invalid. 49 The objects of the Act include (inter alia) regulating aspects of the liquor industry in a way which is consistent with the expectations, needs and aspirations of the community, and facilitating the development of the industry in a manner which is in the public interest. Compliance with the notice requirements serves as the method by which the community, and other relevant stakeholders, are notified of the making of an application. The purpose of notification is to ensure that the attention of such persons is drawn to the fact that an application has been made, thus enabling them to consider whether they wish to make any submission(s) to the Authority in relation to it. 50 Unless there is strict compliance with those requirements, the objects in ss. 3(1)(a) and (b) are compromised. In a practical sense, it is difficult to meet the "expectations, needs and aspirations of the community", and act in the public interest, if members of the community, and the public, are left unaware of an application made under the Act. Such lack of awareness is the inevitable consequence of a failure to strictly comply with the advertising requirements which are imposed. Importantly, in the present case there was no compliance at all with s. 51(2)(c) for an extended period of time. Further, although the reference in s. 51(2)(c) of the Act concerning the need for "minimal formality and technicality" may, when taken by itself, be capable of supporting a conclusion that strict compliance with s. 51(2)(c) is not necessary, reference to the purpose and objects of the Act and Regulation makes it clear that community consultation is of paramount importance in regulating the liquor industry. That consultative process cannot be undertaken as envisaged by the Act if applications are not properly advertised."
Because of CMF's failure to comply with cl 22 of the Regulation with respect to Woollahra Municipal Council, the Application was not advertised as required by s 40(4)(c) of the Liquor Act (which requires licence applications to "be advertised in accordance with the regulations"). Because of CMF's failure to comply with cl 29(1) of the Regulation with respect to Woollahra Municipal Council, the Application did not comply with a requirement prescribed by the Regulation, as required by s 40(4)(d) of the Liquor Act (which requires licence applications to "comply with such other requirements as may be approved by the Authority or prescribed by the regulations"). Applying Bellew J's reasoning in Coote v State of NSW and the Independent Liquor and Gaming Authority, it follows that the Application was invalid.

Decision

In determining whether to grant a packaged liquor licence to CMF, the Authority was apparently unaware of the failures discussed above which I have concluded render the Application invalid. The Authority decided the Application on its merits. While the reasons for my decision are different to those of the Authority, the Authority's decision to refuse the Application was nonetheless correct. Therefore, I have decided to confirm the Authority's decision.

Orders 1. The decision made by the Independent Liquor and Gaming Authority to refuse to grant a packaged liquor licence to CMF Group Pty Ltd is affirmed.

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: 09 November 2021

At a glance

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Decision date

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Judgment (14 paragraphs)

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Legislation Cited (3)

Cases Cited (16)