//
[2026] QSC 45
General information, not legal advice.
Supreme Court of Queensland
2026-03-17
McCafferty J
Original judgment source is linked above.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - FAILURE TO CONSIDER - where the applicants operate a licensed premises in central Murgon - where the licensed premises includes a detached bottle shop - where the second respondents operate a licensed premises in close vicinity to Murgon - where the second respondents applied pursuant to s 154 of the Liquor Act 1992 (Qld) (Liquor Act) to increase the area of their licensed premises to include an adjoining lot - where the second respondents also applied pursuant to s 60 of the Liquor Act for approval to operate a detached bottle shop in central Murgon - where a delegate of the first respondent approved both applications - where the applicants seek judicial review of the decisions to approve the applications on grounds that s 154 of the Liquor Act required the first respondent to have been satisfied the adjoining lot was to be used for, and was suitable to be used for, the purposes of conducting the principal activity authorised by the licence - whether, on the proper construction of s 154, those matters are relevant considerations - whether the first respondent failed to take any relevant considerations into account
Liquor Act 1992 (Qld), s 59, s 59(1), s 60, s 60(1)(d), s 61, s 61(1)(a), s 105, s 107, s 107(4), s 121, s 123, s 154, s 154(2)
Liquor Regulation 2002 (Qld), s 7(1)(b)(i), s 7(2)
Accused A v Callanan [2009] 2 Qd R 112; [2009] QSC 12, cited
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394; [2014] HCA 50, followed
Australian National Imams Council Ltd v Australian Communications and Media Authority (2022) 177 ALD 520; [2022] FCA 913, cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456, cited
Co-Mac Pty Ltd v Queensland Gaming Commission [2009] QSC 33, applied
Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343, cited
Inglewood Olive Processors Limited v Chief Executive Officer of Customs [2005] FCAFC 101, cited
Jewel Food Stores Pty Ltd v Minister for Environment, Land and Planning (1994) 122 FLR 269, cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, cited
Pasnin v Parole Board Queensland [2024] QSC 280, cited
Stanton & Associates Lawyers for the second respondents
[1] The Moffatdale Ridge winery and restaurant is a licenced premises located at a property on Barambah Road, Murgon. It is owned and operated by the second respondents who hold a commercial hotel licence under the Liquor Act 1992 (Qld) (Liquor Act).
[2] In August 2024, the second respondents made an application under s 154 of the Liquor Act to increase the licensed area of Moffatdale Ridge to include an adjoining lot (Lot 16) as part of the licensed area (the main licensed premises). On 2 May 2025, a delegate of the first respondent (the decision-maker) approved that application (the s 154 Decision). On the same day the decision-maker also approved an application under s 60(1)(d) of the Liquor Act permitting the second respondents to operate a proposed detached bottle shop from the Murgon shopping centre, located on Lamb Street, Murgon (the s 60 Decision). The second respondents now operate Ridge Cellars bottle shop from the Murgon shopping centre.
[3] The s 60 Decision was made after the s 154 Decision and in reliance upon the new factual premise it had established. It was primarily made because, in accordance with sections 7(1)(b)(i) and 7(2) of the Liquor Regulation 2002 (Qld) (Liquor Regulation), the decision-maker determined that the proposed detached bottle shop was now not more than 10 kilometres by road from the main licensed premises.
[4] The applicants hold the commercial hotel licence for the Australian Hotel Murgon, which is also located on Lamb Street. Their operation, which includes a drive-through bottle shop, is approximately 200 metres from Ridge Cellars.
[5] The applicants apply for a statutory order of review of both decisions pursuant to sections 20(2)(d) and 20(2)(e) of the Judicial Review Act 1991 (Qld) (Judicial Review Act). The application is predicated upon a particular construction of s 154 of the Liquor Act. The applicants contend that, properly construed, s 154 could not support the making of the s 154 Decision unless the decision-maker was satisfied that Lot 16 was to be used for, and was suitable to be used for, the purposes of conducting the business of a commercial hotel. Should that construction be accepted, the applicants submit that the decision-maker failed to satisfy itself of those matters, and thus that the s 154 Decision was made in error either because it was not authorised by the Liquor Act or because it was an improper exercise of the power conferred by it.
[6] It is common ground that the s 60 Decision is premised on the correctness of the s 154 Decision, and that if the s 154 Decision is not attended by error the applicants' challenge to the s 60 Decision cannot succeed. For the reasons which follow, I have concluded that the applicants' grounds for judicial review in respect of the s 154 Decision are not established. In consequence, it is unnecessary for me to decide the challenge to the s 60 Decision.
[7] It is first necessary to consider an argument raised by the second respondents as to whether the applicants have standing. They argue that the none of the applicants is a "person aggrieved" within the meaning of s 7 of the Judicial Review Act because they are not persons "whose interests are adversely affected by the decision[s]".
[8] The concept of a person aggrieved depends "on the interest affected by the decision".[1] Characterising the interest "involves a more expansive inquiry than consideration of the subject matter, scope and purpose of the statute under which the decision is made."[2] In deciding whether the applicants are persons aggrieved it is not necessary for me to find that their interests are in fact adversely affected by the decisions:[3] it is sufficient if a decision "would be likely to have an adverse effect" on an economic interest.[4]
[9] The applicants identify, correctly in my view, that the Court is entitled to have regard to "the laws of economics as are matters of common knowledge".[5] They contend that as a matter of common experience, the entry of a supplier into a market has the capacity to increase competitive pressure. In this case, that the entry into the market of an additional bottle shop in Murgon would lead to a fall in revenue for existing bottle shops is unsurprising. It is also a matter of common sense.
[10] In considering whether the decisions would be likely to have an adverse effect on the applicants' economic interests, I accept the evidence of Mr Ganim. That evidence demonstrates a trend, being a fall in the applicants' revenue during the two periods in which the Ridge Cellars bottle shop operated.[6] The second respondents invite me to ignore this evidence, or afford it little weight, because under cross-examination Mr Ganim accepted that the figures had been provided to him by the manager of the applicants' business and he could not confirm they were completely accurate. I decline that invitation. The records were books kept by a body corporate. They are prima facie evidence of any matter stated or recorded.[7] The fact that Mr Ganim was provided with the records by the manager does not alter their status. On the evidence presented, I am satisfied that it is probable that the applicants' economic interests are affected such that each is a "person aggrieved" within the meaning of s 7 of the Judicial Review Act.
[11] The parties' submissions on this issue were limited towards whether the applicants could demonstrate that their economic interests would likely be affected by the decisions. I am satisfied that the applicants have standing on that basis, but I do not think that is where the inquiry should end.
[12] In Co-Mac Pty Ltd v Queensland Gaming Commission[8] this Court considered standing in the context of the grant of gaming machine licenses under the Gaming Machine Act 1991 (Qld). In that case a licensee sought to review a decision to grant a licence to a rival licensee to operate gaming machines. McMurdo J (as his Honour then was) observed:
"Each of these applicants has an interest which is adversely affected by the decision, which distinguishes its position from ordinary members of the public, at least because the practical outcome is the existence of a rival gaming venue. But the interest goes further than that, because if the Act were to be administered improperly, and gaming machine licences were to be granted, inconsistently with the Act, for unsuitable premises, the new competition would be unfair competition. In this way, the applicants, especially Co-Mac Ltd, have a legitimate interest in not just the grant of the licence but in that being in accordance with the Act."[9] (emphasis added)
[13] This reasoning is, with respect, compelling. The relevant interest is not purely an economic one brought about by potential competition. It extends to ensuring that, in this case, the Liquor Act is administered properly. The rationale is that if the Liquor Act is improperly administered and a decision to increase the area of a licensed premises was made in circumstances where it should not have been, any further competition that arises from this would be unfair. Thus, the applicants have, to adopt the words of McMurdo J, a legitimate interest in not just the decision to increase the area of the licenced premises but also in that decision being in accordance with the Liquor Act.
[14] The second respondents contend that the applicants' standing must be separately assessed in respect of each decision. No authority is cited in support of that proposition. It does not alter my analysis of the interests identified above which I consider is equally applicable to the s 60 Decision. It also ignores the broader context, namely that the decisions were made almost contemporaneously and are interconnected in nature. I find that the applicants are persons aggrieved by both decisions.
The statutory context: the Liquor Act
[15] The main purposes of the Liquor Act are set out in s 3. Among these purposes is to provide "for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of" the Liquor Act.[10]
[16] So far as regulation is concerned, Part 4 of the Liquor Act contemplates six types of licences that may be granted and held. This includes commercial hotel licences, which are the subject of Part 4 Division 2. Within this division are several provisions which prescribe, relevantly, the principal activity a commercial hotel licensee is entitled to undertake, what activities are authorised by a commercial hotel licence, and the matters which the Commissioner must be satisfied of before granting a commercial hotel licence.
[17] The principal activity of a business conducted under a commercial hotel licence is set out in s 59. It provides:
"59 Principal activity of a business conducted under a commercial hotel licence
(1) The principal activity of a business conducted under a commercial hotel licence is the sale of liquor for consumption on the licensed premises, or on and off the premises, together with -
(a) the provision of meals and accommodation, as required under the licence; and
(b) the provision of premises and catering facilities for use by persons genuinely attending a function held on the premises.
(2) The authority under a commercial hotel licence to sell liquor does not apply unless a business is conducted on the licensed premises with the principal activity as mentioned in subsection (1).
(3) To remove doubt, it is declared that it is inconsistent with the principal activity of a business conducted under a commercial hotel licence to only sell liquor for consumption off the premises."
[18] The authority of the licensee of a commercial hotel licence is provided for in s 60(1) as follows:
(1) A commercial hotel licence authorises the licensee -
(a) to sell liquor on the licensed premises, for consumption on or off the premises, during ordinary trading hours or approved extended trading hours; and
(b) to sell liquor on the licensed premises, for consumption on or off the premises, at any time to a resident on the premises; and
(c) to sell liquor on the licensed premises, for consumption on the premises, at any time to a guest of a resident on the premises while the guest is in the resident's company; and
(d) to sell liquor on premises approved by the commissioner for sale of liquor under authority of the licence, for consumption -
(i) off the premises; or
(ii) on the premises in the amount and in the circumstances prescribed by regulation.
Premises approved by the commissioner under subsection (1)(d) are detached bottle shops under this Act.
[19] The authority contemplates that the licensee may sell liquor from the licensed premises. It also contemplates, in s 60(1)(d), that a further approval may be obtained to sell liquor from premises separate to the licensed premises in the form of a detached bottle shop.
[20] The Commissioner is empowered to grant a commercial hotel licence by s 61 which provides:
"61 Restrictions on grant of commercial hotel licence
(1) The commissioner may grant a commercial hotel licence only if the commissioner is satisfied of the following -
(a) the business to be conducted under the licence on the licensed premises will have the principal activity as mentioned in section 59(1);
(b) the business to be conducted under the licence on the licensed premises will have a commercial kitchen and at least 2 of the following facilities -
(i) a dining, restaurant, or bistro-style, facility;
(ii) self-contained accommodation of at least 3 rooms for letting to travellers;
(iii) a function room facility available for hire by members of the public;
(c) the licensed premises -
(i) have the capacity to seat more than 60 patrons at any one time; and
(ii) have toilet facilities for male and female patrons of the business to be conducted under the licence on the premises.
(2) The commissioner must not grant a commercial hotel licence to a person -
(a) for premises the commissioner reasonably considers are, or are to be, used primarily as a supermarket; or
(b) if the commissioner considers that the sale of liquor proposed to be carried on under authority of the licence would more appropriately be carried on under the authority of a licence of another kind.
(3) Also, the commissioner must not grant a commercial hotel licence to an incorporated association under the Associations Incorporations Act 1981."
[21] The effect of the provision is that the Commissioner must satisfied of certain matters before granting a commercial hotel licence. This includes being satisfied the business to be conducted under the licence will have the principal activity the subject of s 59(1). It also prevents the Commissioner from granting a commercial hotel licence if the sale of liquor proposed is more appropriately carried on under another licence provided for by the Liquor Act.
[22] Part 5 of the Liquor Act is headed "Grant, variation and transfer of licences and permits and related matters". It contains a series of provisions that deal with, among other things, the initial application for a licence, or subsequent applications in relation to a licence and restrictions imposed on the Commissioner on the grant of a licence. Section 105 requires that an application "for or relating to a licence" for any purpose under the Liquor Act must be made to the Commissioner. There are specific requirements for an application. One of these, s 105(1)(c), is that it must "specify, or be accompanied by, the particulars prescribed by regulation". Section 4 of the Liquor Regulation sets out the "particulars to accompany applications relating to licences". It is unnecessary to discuss those in detail save as to note that the matters prescribed are limited to applications for a licence and to applications for a transfer of a licence. The Liquor Regulation does not require nor prescribe particulars for an application to vary a licence.
[23] Section 107 is a general provision in relation to the grant of a licence. Unlike s 61, it is not limited to a commercial hotel licence. Section 107 confers a discretion on the Commissioner to grant an application for a licence - of any type - provided the Commissioner is satisfied of certain matters. It provides:
"107 Restrictions on grant of licence or permit
(1) The commissioner may grant an application for a licence or permit only if the commissioner is satisfied that the applicant is not a disqualified person and is a fit and proper person to hold the licence or permit applied for having regard to -
(a) whether the applicant demonstrates knowledge and understanding of the obligations of a licensee or permittee of the relevant kind under this Act; and
(b) whether the applicant is a person of good repute who does not have a history of behaviour that would render the applicant unsuitable to hold the licence or permit applied for; and
(c) whether the applicant demonstrates a responsible attitude to the management and discharge of the applicant's financial obligations; and
(d) whether the applicant has been convicted of a prescribed offence; and
(e) if the applicant is, or has been, the subject of a control order or registered corresponding control order - the terms of the order.
(2) If the applicant is a corporation, or the commissioner knows, or suspects on reasonable grounds, that the applicant would hold any licence or permit granted on behalf of an unincorporated association or partnership, the commissioner must discharge the responsibility under subsection (1) by applying the subsection to -
(a) each executive officer of the corporation; or
(b) each person who is an executive officer of the association or a member of the partnership of whom the commissioner has knowledge;
(4) Subject to section 123, the commissioner may grant an application only if the premises to which it relates are, in the commissioner's opinion, suitable for conduct of business under authority of the licence or permit applied for.
(a) a report from the police commissioner in relation to the criminal history of -
(i) an applicant for a licence or permit; and
(ii) each person to whom subsection (1) applies as if the person were the applicant; and
(b) if the applicant or person holds or previously held in another State or a Territory a relevant licence, permit, authority, interest or position - a report from the appropriate authority in the State or Territory.
(a) include reference to or disclosure of convictions of the applicant or person mentioned in the Criminal Law (Rehabilitation of Offenders) Act 1986, section 6; and
(b) if the applicant or person is, or has been, the subject of a control order or registered corresponding control order -
(i) state the details of the order; or
(ii) be accompanied by a copy of the order.
(7) For subsection (1), the commissioner may not have regard to criminal intelligence in deciding whether a person is, or continues to be, a fit and proper person to hold a licence or permit under this Act.
permit does not include an adult entertainment permit."
[24] Another provision relevant to the contentions advanced by the parties is s 121. It provides:
"121 Matters the commissioner must have regard to
In deciding whether to grant the application, the commissioner must have regard to -
(a) if a community impact statement is required to be given for the application under section 116 -
(i) the matters mentioned in section 116(8); and
(ii) the public interest in so far as it relates to the main purpose of this Act mentioned in section 3(a) or the impact on the amenity of the community; and
(b) an objection to the grant of the application made under section 117, 119 or 119A; and
(c) comments made in relation to the application under section 117; and
(d) the impact on the amenity of the community concerned; and
(e) for an application for an extended trading hours approval mentioned in section 86(1) -
(i) the previous conduct of the applicant in discharging any duties under this Act previously placed on the applicant, especially for the premises for which the extension is sought; and
(ii) the applicant's ability to control the noise and behaviour of the number of persons that could reasonably be expected to be on and in the vicinity of the premises if the extension were granted; and
(iii) the suitability of the premises and its facilities for the purpose for which the extension is sought; and
(f) any relevant conditions imposed on a development approval that relates to premises the subject of the application."
[25] The term "application" is not defined. It must be a reference to the "application for or relating to a licence" made under s 105.
[26] Section 154, under which the s 154 Decision was made, appears within Part 6 of the Liquor Act which is headed "Obligatory provisions and offences". It provides as follows:
"154 Alteration etc. and maintenance of licensed premises
(1) The owner, licensee or other person in control of licensed premises must not, without the commissioner's approval, alter, rebuild, change or increase the area of the licensed premises.
1 The licensee of a detached bottle shop in a shopping centre changes the relevant leasing arrangements by reducing the overall area the shop is to occupy. Therefore the licensee must apply for the commissioner's approval to alter the licensed premises permanently.
2 An RSL club is the licensee of a licensed club and wishes to erect a tent next to its licensed premises to provide liquor on Anzac Day. Therefore the licensee must apply for the commissioner's approval to increase the area of the licensed premises for that occasion.
(a) in giving an approval, the commissioner must have regard to the business that is the principal activity conducted under the licence; and
(b) a change in the area includes not using a part of the licensed premises as if the part were not licensed premises.
[27] There is some background to this application which, although irrelevant to the issues to be determined, is necessary to understand aspects of other relevant factual matters set out below. The background is as follows. The second respondents had in fact received an earlier approval under s 60 to operate a detached bottle shop. This approval was obtained before they applied under s 154 to increase the area of the main licensed premises. On 22 May 2024, the applicants challenged the earlier approval under the Judicial Review Act on the basis of jurisdictional error. That contention was ultimately accepted by the parties and the decision was set aside by Cooper J on 27 November 2024.
[28] On 30 August 2024, the second respondents, through external consultants retained by them, made an application to the Commissioner in the approved form under s 154 to change the licensed area for Moffatdale Ridge to include Lot 16. This occurred after proceedings challenging the earlier s 60 decision had commenced but before they had been determined. The letter accompanying the s 154 application contained the following information:
[29] Various enclosures were provided. These included a floor plan of what is, uncontroversially, a house. The floor plan depicts two areas. The first, within the house, is described as "Office Proposed for licensed Premise". The second area, which is external to the house, is a dwelling described as "Proposed Liquor storage Facility." Another enclosure provided was a letter the South Burnett Regional Council (SBRC) had issued to the second respondents on 15 August 2024 notifying them of a rate change to "L13 RP7174 & L16 RP98560 & L18 SP103140". The letter included the following:
"Council has deemed that there is an additional commercial business running outside of your original land use rural function. As a result, the rating category for the above property been changed from General Rate Category 6 - Primary Producer Rural to General Category 600 - Commercial Rural."
[30] On 5 September 2024, the second respondents provided further documentation to the Commissioner. This included a photograph of the proposed office and a letter from SBRC in support of the application. This letter recorded that Lot 16 "was the original licensed premise".
[31] Under s 118(1)(f) of the Liquor Act the Commissioner required that the application be advertised. That occurred. On 17 December 2024 the applicants, by their solicitors, provided a detailed objection to the application as they were permitted to do under s 119.
[32] The objection attached various documents filed in this Court for the application ultimately determined by Cooper J. This included affidavits filed by the second respondents under the hand of Mr Kinsella and the second respondents' consultant, Mr Jones. The objection, which might fairly be characterised as serving a dual purpose as a submission, traverses much of the history of the earlier s 60 decision and the documents filed in those proceedings. One of the main contentions advanced by the applicants was that the application was not genuine in that it was being made to enable the distance requirements in s 7 of the Liquor Regulation to be satisfied, which was, in essence, the controversy surrounding the earlier s 60 decision.
[33] In focusing on the application under s 154, the applicants' objection made the following points:
"32. In paragraph 13 of Mr Jones' Affidavit, he deposes that the purpose of [the] application was to include in the licensed premises facilities located on that lot used for liquor storage and for administrative functions such as bookkeeping and storage of business records related to the licensed operation on Lot 18.
Why the Application for increase should not be approved
55. Section 154(2) of the Liquor Act is relevant and it provides:
(a) in giving an approval, the commissioner must have regard to the business that is the principal activity conducted under the licence; and
(b) a change in the area includes not using a part of the licensed premises as if the part were not licensed premises.'
[34] On 15 January 2025, a delegate of the Commissioner decided to approve the change in licence area under s 154(1) of the Liquor Act. For reasons not relevant to this application, that decision was repealed and on 2 May 2025 another delegate made the s 154 Decision. A similar process occurred for the s 60 Decision. It, too, had been made earlier in the year, on 26 February 2025, repealed and then remade on 2 May 2025. The reasons why are not relevant.
[35] Prior to making the s 154 Decision, a decision memorandum dated 1 May 2025 was provided to the decision-maker. This document set out the relevant background including that Lot 16 had previously been licensed and that the licensee had continued to use Lot 16 "for the purpose of excess stock storage and administration of the licence." The decision memorandum also recorded aspects of the applicants' objections and an analysis of those objections. The analysis included the following:
"Apart from the above, there are concerns regarding the magnitude of the increase in licensed area and the licensee's ability to comply with the obligations under the Act. However, as stated in the licensee's submissions, the licensee is already occupying a large, licensed area, and there is no history of non-compliance. It would be unfair to deny them of the opportunity to trade under the new licensed area unless there is substantiated evidence to suggest they will not be able to comply with their statutory obligations.
Furthermore, the question of whether the licensee is able to use the licensed premises for the conduct of the principal activity of the licence is [sic] matter of degree. There is no requirement under the Act to conduct the principal activity of the licence at every 'nook and cranny' of the premises. The Act provides flexibility to licensees as to how they use their licensed premises, which may be changed from time to time. However, if there is substantiated evidence that the licensee, over an unreasonable period of time, has failed to conduct a business on the licensed premises that is consistent with the principal activity of the licence, then the Commissioner has the power to take action against the licensee."
[36] On 2 May 2025 the decision-maker issued a brief summary of reasons. Within this document the decision-maker records that the objections received were taken into account, including that "the licensee has not demonstrated how they will use the increased licensed area." In response to this the decision-maker considered that if there is "substantiated evidence demonstrating the licensee has failed to conduct the principal activity on the licence or failed to comply with its obligations under the Act, OLGR is empowered under the Act to take action against the licensee. It would be unfair to deny the licensee an opportunity to trade under the new licensed area, and to demonstrate its ability to comply with the Act."
[37] On 16 May 2025 a more detailed statement of reasons comprising five pages was provided (reasons). The document sets out the relevant legislative framework, including citing the main objectives of the Liquor Act and identifying that s 154 "authorises a licensee to apply for a change to the licensed area. The application must comply with the requirements of the Act and not unreasonably impact the amenity of the locality. The application must also be consistent with the main purposes of the Act."
[38] Under the heading "Application Background" the reasons included the following:
"In deciding the application, I had regard to the following matters:
[39] The reasons then identify the key issues raised by the objectors. Among the matters recorded is the contention that the inclusion of Lot 16 would contravene s 154(2)(b) of the Liquor Act because portions of the area are not intended for use as part of the licensed premises.
[40] The reasons identified for the approving the change in licensed area comprise approximately half the document. It is necessary, having regard to the arguments advanced in this proceeding, to set out the following parts of the reasons.
"Relevant Considerations under the Liquor Act
I have carefully considered the relevant issues raised in the objections. In response, I reason as follows:
Having balanced all relevant factors, including the statutory objectives of the Act, the submissions of the licensee, and the objections raised, I am satisfied that the granting of this application is consistent with the purposes of the Act. Accordingly, the application to increase the licensed area to include Lot 16 is approved."
The statutory scheme and the power conferred by s 154
[41] It is uncontroversial that s 154 of the Liquor Act requires the Commissioner to "have regard to the business that is the principal activity conducted under the licence". It is also uncontroversial that s 121 sets out further mandatory requirements which the Commissioner must have regard to.
[42] The applicants' contention is that on the proper construction of s 154 there are additional preconditions to the lawful exercise of power. Those additional preconditions are that the decision-maker was required to have regard to whether Lot 16 would be used for, and whether it was suitable to be used for, the principal activity set out in s 59(1) of the Liquor Act. The decision-maker failed to have regard to these matters and in consequence failed in two respects: first, in failing to form two opinions required in order to exercise the power; and second, in failing to consider two mandatory relevant considerations.
[43] The applicants contextualise their asserted construction of s 154 by reference to the matters contained under Part 4, Division 2 of the Liquor Act. They contend that each of sections 59, 60 and 61 are consistent with a theme. That theme is that premises are licensed when they are, in fact, to be used for the purposes of a particular activity. On the applicants' analysis these provisions imply that, in the circumstance of making a decision under s 154 to increase the area of a licensed premises for the operation of a commercial hotel, the decision-maker must be satisfied that the land and/or buildings proposed to be included within the licensed premises will in fact be used for the purpose of conducting that business. To include additional land within the premises licensed for the operation of a commercial hotel would only be consistent with the legislative scheme if the land is to be used for that purpose.
[44] A further, but related, implication arises by reason of s 107(4) which permits the Commissioner to grant an application "only if the premises to which it relates are, in the Commissioner's opinion, suitable for conduct of business under authority of the licence or permit applied for." The applicants argue that this provision is another reason why it is a necessary precondition to the exercise of power to increase the area of a licensed premises that the Commissioner be satisfied that any additional area is also suitable for the conduct of business under the licence. To find otherwise would be to empower the Commissioner to include an area within a licensed premises which could not otherwise have been the subject of the licence when initially granted, either because it was not in fact to be used or was unsuitable for use. This, the applicants contend, would be a remarkable conclusion in circumstances where the Liquor Act imposes a rigid and detailed scheme for the grant of a licence.
[45] On the basis of this analysis, both matters - that the additional area will be used and that it is suitable to be used - are matters which the decision-maker was required to be satisfied of or to form an opinion about as a precondition to the lawful exercise of power under s 154.
[46] The alternative argument advanced is that both matters were mandatory relevant considerations which had to be taken into account in exercising the power. Reliance was placed on the well-accepted principles identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[11]:
"The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ...
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.
... where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors ...
By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act."
[47] While s 154 contains an express mandatory consideration - to have regard to the business that is the principal activity - the provision is hardly informative as to what in fact must be considered as part of this process. In substance, the applicants submit that on its proper construction the mandatory consideration in s 154 would include requiring the decision-maker to take into account whether Lot 16 would be used and whether it was suitable to be used for the principal activity set out in s 59(1). They argue that having regard to the subject matter, scope and purpose of the Liquor Act, and in particular the statutory scheme of licensing, means that the mandatory consideration in s 154(2)(a) cannot be the only mandatory consideration but rather is to be supplemented by other mandatory considerations contemplated by the licensing scheme generally. Were it otherwise, the discretion to change the licensed area under s 154, at least insofar as it was a discretion to increase the licensed area, would be effectively unconstrained by all the other restrictions that exist in the Act.
[48] The applicants contend that it is apparent that the decision-maker did not have regard to whether Lot 16 was to be used, or was suitable, for the conduct of the business under the authority of a commercial hotel licence, let alone form an opinion as to these matters.
[49] The asserted error in the reasons is as follows. None of the paragraphs under the heading "Reasons for Decision" address the question of whether Lot 16 is to be used to conduct the business under the authority of a commercial hotel licence, being the principal activity set out in s 59 of the Liquor Act, or whether those premises are suitable for use. In fact, the critical reasoning of the decision-maker "implicitly" accepts that much of Lot 16 would not be used for the purpose of the principal activity. But rather than asking whether Lot 16 was in fact suitable for the conduct of a business of a commercial hotel licence, the decision-maker concerned themselves with the question of how the variation to the licence might be revoked if the licensee has failed to conduct a business on the licensed premises consistent with the principal activity.
[50] These matters, together with a statement within the reasons that it would be inconsistent with the Liquor Act to deny the licensee an opportunity to demonstrate compliance with the legislation in relation to an expanded licensed area, indicate that the decision-maker did not in fact consider whether Lot 16 was suitable for the conduct of a business under the authority of a commercial hotel licence. Rather the decision-maker's concern, so the applicants contend, was with how the licence might be revoked if it were granted and then used (or not used) consistently with the conduct of the principal activity of a commercial licence on Lot 16.
The exercise of power under s 154
[51] It is abundantly clear that an application under s 154 of the Liquor Act can only be made by a person, either owner, licensee or other person in control, who currently holds one of the available licenses contemplated by s 58(1). It necessarily follows that any application under s 154 can only be made once a relevant licence has been granted.
[52] The language of s 154 is prohibitive. Its purpose is to prevent the alteration, rebuilding, change or increase to the area of a licensed premises without first obtaining the Commissioner's approval. A failure to obtain approval is an offence for which a penalty is imposed.
[53] The approval mechanism is provided for in s 154(2). That provision requires the Commissioner to have regard to one matter only: "the business that is the principal activity conducted under the licence". That is supplemented by s 121 which provides further mandatory considerations including, relevantly, any objection made to the grant of the application.
[54] It may be readily accepted that, procedurally, any applicant seeking approval under s 154 is required to make an application under s 105. This provision applies to applications "for or relating to a licence". But it does not follow that this interaction would, as a condition of the exercise of power conferred by s 154, give rise to any need for an applicant to re-engage with the requirements or substance of s 61(1) and s 107(4).
[55] In my view, on the proper construction of s 154, the Commissioner in deciding whether to approve an alteration, rebuild, change or increase to the area of the licensed premises is not required to be satisfied within the meaning of s 61(1)(a) that the "business to be conducted under the licence on the licensed premises will have the principal activity as mentioned in section 59(1)" or that the "premises ... are ... suitable for conduct of business under authority of the licence" within the meaning of s 107(4). These considerations are matters which precondition the initial grant of the relevant licence. Section 61(1)(a) makes this plain by the words of the provision and the context in which it appears. It applies to the grant of a commercial hotel licence, a reference which can only be taken to mean the initial grant of a licence.
[56] The same point holds true with s 107(4). While it may be accepted the subsection refers to "an application", that does not mean it applies to an application under s 154. This is clear from the context in which s 107(4) appears. Section 107(1) clarifies that the provision is concerned with applications "for a licence". It is not concerned with applications otherwise made under the Liquor Act, including under s 154. That is only reinforced by s 123, the provision referred to within s107(4). It, too, applies only to an application for the initial grant of a licence.
[57] To imply that such matters are a precondition to the exercise of power under s 154 would be an unusual construction of a provision which is premised upon the applicant holding a relevant licence and therefore already having satisfied the Commissioner of those matters in the past. It would also be an unusual outcome particularly as the power contained within s 154 is a broad one that is not confined to applications to increase the size of a licensed premises and, indeed, there are other mandatory considerations that are explicitly identified.
[58] As I have said, any application under s 154 proceeds on the basis that an application for a licence has already occurred and has already been granted as an entirely separate process. The power conferred by s 154 is a broad one. What the Commissioner must, as a precondition to its exercise, do is have regard to "the business that is the principal activity conducted under the licence" and to the other mandatory considerations in s 121, including objections.
[59] The extent of the relevant inquiry to be undertaken in s 154, its scope, and the considerations relevant to it will depend upon the nature of the application. The section contemplates several different applications: to alter, rebuild, change or increase the area of the licensed premises. For an application to increase the area of a licensed premises, it is not difficult to accept that the requirement to have regard to the business that is the principal activity conducted under the licence requires a consideration of both the use and suitability of the area proposed to be included as part of the licensed premises. That is the position the Commissioner contends for. It is, in my view, plainly correct and consistent with the subject matter, scope and purpose of the Liquor Act. It would be an odd outcome if the relevant decision-maker who is determining an application to increase the area of a licensed premises were not required to consider the use and suitability of the proposed additional area as part of that process.
[60] The question then becomes whether these matters were taken into account by the decision-maker.
[61] As a matter of principle, in considering a statement of reasons a court should not be concerned with looseness in language nor with unhappy phrasing. Reasons are not to be construed "minutely and finely with an eye keenly attended to the perception of error"[12]. Importantly, they "must be construed in a practical and common-sense manner"[13]. As the majority recognised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[14], statements of reasons:
"... are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."
[62] Where an administrative decision-maker both "starts and ends their deliberations with the correct legal test, a court should not readily infer legal error as a consequence of infelicitous or loose language somewhere in between."[15]
[63] When one has regard to these principles - in particular, construing the reasons in a practical and common-sense manner - the starting point, perhaps axiomatically, is to understand the nature of the application the decision-maker received and was asked to consider.
[64] The application was to change the licensed area for Moffatdale Ridge to include Lot 16 as part of the licensed premises. In making the application, the second respondents identified that Lot 16 was previously licensed and that they had "continued to utilise Lot 16 for the purpose of excess stock storage and administration of the licence". The application had attached to it a floor plan indicating the areas within Lot 16 to be used: an office within a dwelling and an external storage shed.
[65] Within the reasons, under the heading "relevant considerations", the decision-maker identifies that the application is "authorised under" s 154 and that a licensee is entitled to seek the Commissioner's approval to change its licensed area "insofar as the change does not unreasonably impact the amenity of the locality, or if the new licensed area is otherwise unsuited for the conduct of the principal activity under the licence."
[67] The objection, as I have said, was detailed. Salient aspects of it are set out above. Importantly for present purposes, the reasons contain a response to that part of the objection which complained about the "Magnitude of the increase". This part of the objection advanced an argument that s 154(2)(b) of the Liquor Act prohibits the increase of licensed area to the extent that it includes "an area which is not intended to be used as part of the licensed premises".
[68] Within this section, the objection also maintained that the second respondents had not put forward evidence as to "how they intend to utilise the balance area of Lot 16 other than for the driveway for patrons to enter and exit through ... to travel up to the winery and vice versa." This reference was made, of course, in the context of the applicants having earlier referred to the intended purpose of the application as for "liquor storage and storage of business records related to the licensed operation on Lot 18".
[69] The decision-maker responded to this objection in the reasons. The relevant passages have been set out above. Within these passages appear the following statements:
" ... the Act does not impose a strict requirement for the entirety of the licensed area to be utilised immediately upon approval ... "
" ... the provisions of section 154(2) do not preclude a determination in favour of this application ... "
" ... I am not persuaded by the objectors' arguments asserting that Lot 16 cannot form part of the overall licensed area ..."
"It is pertinent to note that Lot 16, along with Lot 18, was previously licensed under the Wine Industry Act, which demonstrates the suitability of the area for the sale of liquor."
[70] A court reviewing an administrative decision "must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."[16] This application does not provide an occasion for the court to substitute its views for those of the relevant decision-maker. [17]
[71] As I have said, in reviewing a decision-maker's reasons, the task is not to construe those reasons with an eye finely attuned to error. The reasons of the decision-maker must be construed in a practical and common-sense manner. The arguments advanced by the applicants are inviting me to adopt a construction which in my view offends both these principles.
[72] It is plain enough that the reasons were determining an application by which the second respondents were seeking approval to increase the area of the licensed premises to include Lot 16 so they could use the office within the dwelling and external shed in the manner they had done previously: for the purposes of excess stock storage and administration of the licence, being, necessarily the principal activity of the business they conducted under a commercial hotel licence.
[73] Apart from asserting that the application was not genuine, the applicants were acutely aware of this. So too was the decision-maker. That is apparent from both the content of the objection and how it was addressed in the reasons. To suggest that the reasons did not have regard to the proposed use of Lot 16 would be to ignore the arguments with which the decision-maker was engaging. In my view, when the reasons are construed in a practical and common-sense manner, the decision-maker engaged with the intended use and, indeed, the purposes of the application. That was the very nature of the application.
[74] While it may be accepted that the reasons do not specifically state the second respondents' proposed use for Lot 16 as being for storage and related administration of the business, that does not mean that the matter was not considered by the decision-maker. In my view it was. It is implicit from the very nature of the application and the rejection of applicants' objections.
[75] The position is the same for the consideration as to whether Lot 16 was suitable. The decision-maker expressly referred to the suitability issue in two places within the reasons. The first was under the heading "Relevant Considerations under the Liquor Act" in which the decision-maker identifies that an application under s 154 requires consideration of whether the "new licensed area is otherwise unsuited for the conduct of [sic] principal activity under the licence."
[76] The second place was in dealing with the applicants' objection. The relevant passages have been set out above, parts of them more than once. It is however convenient to outline them again with emphasis added:
"In response to the submission that Lot 16 cannot be appropriately licensed, it is noted that the Act does not impose a strict requirement for the entirety of the licensed area to be utilised immediately upon approval. In my assessment, the provisions of section 154(2) do not preclude a determination in favour of this application. I am not persuaded by the objectors' arguments asserting that Lot 16 cannot form part of the overall licensed area. It is pertinent to note that Lot 16, along with Lot 18, was previously licensed under the Wine Industry Act, which demonstrates the suitability of the area for the sale of liquor.
The determination of whether the licensee can utilise the licensed premises for the conduct of the principal activity of the licence is a matter of degree. The Act affords licensees a degree of flexibility in how they use their licensed premises, provided they continue to comply with the principal activity of the licence. For instance, while section 59 requires a commercial hotel to provide facilities for meals and accommodation as part of its principal activity, the Act does not mandate that such facilities be available in every part of the licensed area."
[77] Consistent with my earlier observations about the alleged failure to consider the 'use" to which Lot 16 would be put, there is additional context to these statements. That context is, again, the specific objection made by the applicants which the decision-maker was responding to. Specifically, two parts within the objection document. The first part is a quote from the second respondents' application which is set out above. To paraphrase it, Lot 16 had previously been licensed and the licensee has continued to utilise Lot 16 for the purpose of excess stock storage and administration of the licence. The second part is the applicants' objection that the second respondents had failed to put forward evidence as to how they intend to utilise the balance area of Lot 16. The reference to balance area was, of course, to the area other than the shed and home office which they sought to include as part of the licensed premises and a driveway for patrons.
[78] In my view, the decision-maker considered the suitability of Lot 16. The suitability issue was specifically referred to in the reasons. Further, the decision-maker engaged in the intellectual process of considering, and rejecting, the applicants' objections. This included an acceptance as to suitability. The decision-maker referred to Lot 16 as having previously been licensed as a matter of suitability. That statement can only have been made in the context of the second respondents having used Lot 16 for storage of wine and bookkeeping and record keeping when Lot 16 had been licensed previously. As Cooper J identified in Pasnin v Parole Board Queensland[18]:
"To take something into account requires that the decision-maker do more than simply advert to the matter or give it mere lip service. It requires that the decision-maker engage in an active intellectual process directed at the relevant consideration. Whether or not it can be judged that a matter has been considered is an evaluative process based on an assessment of what the decision-maker has said or written; in this case, the Reasons."
[79] When considered in context, it is apparent that the decision-maker engaged in an active intellectual process in considering the suitability of Lot 16. That intellectual process was considering the detailed objection made by the applicants and, as the reasons disclose, the decision-maker was not "persuaded by the objectors' arguments asserting Lot 16 cannot form part of the overall licensed area." Those arguments were advanced in a context in which the second respondents had asserted that they previously used Lot 16 for storage of wine and bookkeeping and record keeping for the winery when Lot 16 was previously licensed. The proposition that "Lot 16, along with Lot 18, was previously licensed under the Wine Industry Act, which demonstrates the suitability of the area for the sale of liquor" is the conclusion reached by the decision-maker having regard to the applicants' objection. In my view, implicit in the decision-maker's reasoning in rejecting the applicants' objection was a consideration whether Lot 16 was suitable for forming part of the licensed premises.
[80] Overall, when the reasons are construed in a practical and common-sense manner it is apparent that the decision-maker took into account the proposed use of Lot 16 for the principal activity and the suitability of Lot 16 for such use.
[81] On the above analysis, the outcome is that the applicants have not demonstrated a ground for reviewing the s 154 Decision. That conclusion means that there is no occasion to review the s 60 Decision. The application is dismissed.
[82] Absent any consent orders as to costs, I will direct the parties to make any submissions as to costs within 14 days, limited to two pages.
[1] Australian National Imams Council Ltd v Australian Communications and Media Authority (2022) 177 ALD 520; [2022] FCA 913 at [87].
[3] Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394; [2014] HCA 50 (Argos).
[4] Argos at [36] (French CJ and Keane J), [57] (Hayne and Bell JJ), [91] (Gageler J).
[5] Jewel Food Stores Pty Ltd v Minister for Environment, Land and Planning (1994) 122 FLR 269 at 279.
[6] The reason why there are two periods is that an earlier decision under s 60 of the Liquor Act had been made. Following this, the second respondents operated the Ridge Cellars bottle shop. They ceased to do so when the earlier s 60 decision was set aside (see paragraph 27 of these reasons) and recommenced when the s 60 Decision the subject of the present challenge was made.
[7] Corporations Act 2001 (Cth) s 1305.
[8] [2009] QSC 33 (Co-Mac).
[11] (1986) 162 CLR 24 at 39-40.
[12] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 at 287.
[13] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [76] (Perram, Murphy and Lee JJ).
[14] (1996) 185 CLR 259; [1996] HCA 6 at 272 (Wu Shan Liang).
[15] Inglewood Olive Processors Limited v Chief Executive Officer of Customs [2005] FCAFC 101 at [26] (Kiefel, Weinberg and Edmonds JJ).
[16] Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[17] Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343 at 346-7; Accused A v Callanan [2009] QSC 12; [2009] 2 Qd R 112 at [7].
[18] [2024] QSC 280 at [47].
Ganbros Pty Ltd
Commissioner for Liquor and Gaming [2026] QSC 45
(2014) 254 CLR 394
(1993) 43 FCR 280
(1994) 122 FLR 269
(1986) 162 CLR 24
(1996) 185 CLR 259