Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority

Relevant legislation

1. Section 13A(1) of the GALA Act provides that a relevant person who is aggrieved by a decision of the Authority "in relation to an application made under a provision of the gaming and liquor legislation" and "prescribed by the regulations" may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of that decision. Administrative review jurisdiction is conferred on the Tribunal by s 9 of the Administrative Decisions Review Act and s 30 of the NCAT Act.
2. "Gaming and liquor legislation" is defined in s 4 of the GALA Act to include, in addition to the GALA Act itself, the Liquor Act 2007 (NSW), amongst other Acts and their associated regulations and instruments.
3. Clause 7 of the GALA Regulation sets out, for the purposes of s 13A, the applications "in relation to" which administrative review can be sought, as follows: 7 Administratively reviewable decisions For the purposes of section 13A of the Act, the following applications made on or after 1 March 2016 are prescribed - (a) an application for the granting or removal under the Liquor Act 2007 of - (i) a hotel licence, or (ii) a club licence, or (iii) an on-premises licence that relates to a public entertainment venue (other than a cinema or a theatre), or (iv) a packaged liquor licence (other than a packaged liquor licence that is limited to the sale of liquor only by means of taking orders over the telephone, by facsimile or mail order, or through an internet site), (b) an application for an ongoing extended trading authorisation in relation to a licence referred to in paragraph (a) that would result in trading after midnight, (c) an application to vary or revoke a condition of a licence imposed by the Authority that would result in trading after midnight, in relation to a licence referred to in paragraph (a) (i)-(iii), (d) an application to increase a gaming machine threshold under section 34 of the Gaming Machines Act 2001 that is required to be accompanied by a class 2 LIA under section 35 of that Act, (e) an application specified in clause 6 in respect of which a delegation given by the Authority to a designated Public Service employee to exercise the Authority's decision-making function is in force. (Emphasis added)
4. Section 4 of the Liquor Act defines "extended trading authorisation" as meaning "an extended trading authorisation under section 49 or 49A".
5. Section 49A of the Liquor Act relates only to ETAs for small bars. Section 49 is more general, and provides in relation to ETAs for hotel licences (amongst other licence types): Extended trading authorisation - general provisions (2) Extended trading authorisation for consumption on premises - In the case of a relevant licence (other than a packaged liquor licence) that authorises the sale or supply of liquor for consumption on the licensed premises, the Authority may, on application by the licensee, authorise the licensee to sell or supply liquor, for consumption on the licensed premises only, during any of the following periods - (a) in the case of a hotel licence - a specified period between midnight (other than midnight on a Sunday) and 5 am on any day of the week (other than a Monday), …. (5) Nature of extended trading authorisation - An extended trading authorisation operates to authorise the sale or supply of liquor on the licensed premises - (a) on a regular basis (until such time as the authorisation is varied or revoked by the Authority), … …. (6) Extended trading period to be specified - In granting an extended trading authorisation, the Authority is to specify - (a) the extended trading hours during which the licensee is authorised to sell or supply liquor, and (b) the part or parts of the licensed premises to which the authorisation applies. …. (8) Restrictions on granting extended trading authorisation - the Authority must not grant an extended trading authorisation in respect of licensed premises unless the Authority is satisfied that - (a) practices are in place, and will remain in place, at the licensed premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and (b) the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises.
6. Section 48 of the Liquor Act sets out the types of applications to the Authority that must be accompanied by a community impact statement: 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. (2) In this section - relevant application means any of the following - …. (c) an application for an extended trading authorisation in relation to a hotel licence, club licence, small bar licence or packaged liquor licence, (d) an application for an extended trading authorisation in relation to an on-premises licence (but only if the authorisation will result in trading at any time between midnight and 5 am), (e) an application for an extended trading authorisation in relation to a producer/wholesaler licence (but only if the authorisation will result in retail trading at any time between midnight and 5 am), (f) any particular application (or class of application) that is required by the Authority to be accompanied by a community impact statement, (g) any other application of a kind prescribed by the regulations or made in such circumstances as may be prescribed by the regulations, … (3) A relevant application must be accompanied by a community impact statement. (3A) However, a small bar application is not required to be accompanied by a community impact statement if - (a) development consent is required under the Environmental Planning and Assessment Act 1979 …., and (b) the local police and the Secretary are …. notified by the applicant of the making of the application for development consent or of the variation to that application. (3B) For the purposes of subsection (3A), a small bar application means any of the following - …. (c) an application for an extended trading authorisation for a small bar, (d) an application to vary an extended trading authorisation for a small bar. …. (5) The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to - (a) the community impact statement provided with the application, and (b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions), 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. …
7. Section 51 of the Liquor Act makes further provision for licence-related authorisations, including extended trading authorisations: 51 General provisions relating to licence-related authorisations (1) This section applies to the following authorisations granted by the Authority under this Act - (a) an extended trading authorisation, … (2) An application for an authorisation to which this section applies must - (a) be in the form and manner approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary), 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) if required by the regulations to be advertised - be advertised in accordance with the regulations, and (d) comply with such other requirements as may be approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary) or prescribed by the regulations. (3) In determining an application for an authorisation, the Authority has the same powers in relation to the application as the Authority has in relation to an application for a licence. The Authority may determine the application whether or not the Secretary has provided a report in relation to the application. ... (5) Any person may, subject to and in accordance with the regulations, make a submission to the Authority in relation to an application for an authorisation. (6) If any such submission is made to the Authority, the Authority is to take the submission into consideration before deciding whether or not to grant the authorisation. … (9) An authorisation - (a) is subject to such conditions - (i) as are imposed by the Authority (whether at the time the authorisation is granted or at a later time), or (ii) as are imposed by or under this Act or as are prescribed by the regulations, and (b) may be varied or revoked by the Authority on the Authority's own initiative or on application by the licensee, the Secretary or the Commissioner of Police. (10) Any such application by a licensee to vary or revoke an authorisation (including any conditions to which the authorisation is subject that have been imposed by the Authority) must be accompanied by the fee prescribed by the regulations. (11) For the purposes of this Act, any condition to which an authorisation is subject is taken to be a condition of the licence to which the authorisation relates. (12) An authorisation has effect only while all the conditions to which it is subject are being complied with. (13) The Authority must not impose a condition on an authorisation, or revoke or vary an authorisation, other than a variation made on application by a licensee, unless the Authority has - (a) given the licensee to whom the authorisation relates a reasonable opportunity to make submissions in relation to the proposed decision, and (b) taken any such submissions into consideration before making the decision. ….

Tribunal's reasons

1. In the written reasons for its decision ("Reasons"), the Tribunal concluded: 1. An application by a licensee to vary an existing ETA is not included in the prescribed applications under cl 7 of the GALA Regulation in relation to which a person aggrieved by a decision of the Authority may apply for administrative review under s 13A of the GALA Act. As a consequence, the Tribunal did not have jurisdiction to review the decisions made by the Authority in either of the proceedings, and both proceedings must be dismissed (Reasons at [54]). 2. The statement of Schmidt J in Rogers v Independent Liquor and Gaming Authority (No 2) [2018] NSWSC 1177 ("Rogers No 2") was "distinguishable in these proceedings", and the Tribunal was not bound by her Honour's statements in that case from [101]-[112], in particular, at [109], relating to the construction of cl 7(b) of the GALA Regulation. The focus of her Honour's analysis in that case was on the meaning of the phrase "would result in trading after midnight" and not, as in these proceedings, whether the phrase "an application for an ongoing [ETA]" can be read to include an application to vary an existing ongoing ETA (Reasons at [23], [43]). 3. To answer that question, the Tribunal was required to consider the ordinary and grammatical sense of the words used in cl 7, having regard to their context and legislative purpose (Reasons at [44]). 4. An expansive interpretation of cl 7(b) of the GALA Regulation, and thus the review rights conferred by s 13A of the GALA Act, would be consistent with the objects of the GALA Act (particularly, those in ss 2(c), (d) and (e)) (Reasons at [47]). 5. However, the proposition that only limited rights of merits review were intended to be created under s 13A is supported by the Second Reading Speech introducing that section, in which the Minister stated that the bill "provide[d] for licensing decisions to be reviewed in certain circumstances … in relation to contentious liquor and gaming applications, such as the grant of a new hotel or packaged liquor licence" (emphasis added in Reasons): Second Reading Speech, Gaming and Liquor Administration Amendment Bill 2015, Legislative Assembly, Parliamentary Debates (Hansard), 27 October 2015 (Reasons at [48]). 6. The definition of "gaming and liquor legislation" in s 4 of the GALA Act confirms that the Liquor Act is part of the regulatory scheme which provides the context for the review rights conferred by s 13A of the GALA Act (Reasons at [46]). 7. The Liquor Act clearly distinguishes between an application for the grant of an ETA and an application to vary an ETA, in terms of who can make such an application, the formal requirements for an application, and the considerations to be taken into account when determining an application (Reasons at [49]). 8. The request by the Authority that the applicants provide a community impact statement (required by s 48 of the Liquor Act for "relevant applications") did not support the applicants' contention that cl 7(b) should be construed as including applications to vary existing ETAs. The Authority, in its forms requesting provision of a community impact statement, did not state the legislative basis for its request (including whether it was required under ss 48(2)(c) or 48(2)(f)) (Reasons at [50]-[51]). 9. Each ETA in these proceedings was an "ongoing" ETA within the meaning of cl 7(b), that is, it operated to authorise sale or supply of liquor on the licensed premises on a regular basis, until variation or revocation by the Authority, rather than for a special occasion or occasions. However, this did not support an interpretation that cl 7(b) applies to both new applications and applications to vary existing ETAs (Reasons at [33]). 10. When read in their ordinary and grammatical sense, the words used in cl 7(b) do not include an application by a licensee to vary an ongoing ETA, and there is no basis in the legislative scheme for reading those words so as to include such an application (Reasons at [53]). 11. In particular, to read the words "application for an [ETA]" in cl 7(b) as if they include an application for a variation of an existing ETA is unduly strained. The word "for" in this subclause should not be read as though it means "in relation to" (Reasons at [52]).

Grounds of appeal

1. In their respective Notices of Appeal, both dated 12 March 2020, the appellants challenge the Tribunal's orders dismissing the respective applications for review in proceedings 2019/248033 and 2019/271159.
2. The Notices of Appeal set out almost identical grounds of appeal to the following effect: 1. The Tribunal erred in law by misconstruing cl 7(b) of the GALA Regulation and in particular the phrase "an application for an ongoing extended trading authorisation in relation to a licence … that would result in trading after midnight" by finding that an application to vary the ETA attaching to each applicant's hotel licence which, if granted, would have authorised the applicant to sell or supply hotel liquor for consumption on their licensed premises between the hours of 2.00 am to 4.00 am Monday to Saturday, was not an application to which cl 7(b) applied. 2. As a result of this error in construction of cl 7(b), the Tribunal incorrectly found that it lacked jurisdiction to hear and determine the applicants' applications for merits review of the Authority's refusal of those applications, and erroneously dismissed the applications as beyond the Tribunal's jurisdiction conferred by s 13A of the GALA Act.

Issues on appeal

1. The issues for the Appeal Panel to determine are: 1. Whether cl 7(b) of the GALA Regulation can be read, in its statutory context, so as to include in the phrase "an application for an ongoing extended trading authorisation in relation to a licence … that would result in trading after midnight" an application to vary, by adding additional post-midnight hours, an existing ongoing extended trading authorisation that permits trading after midnight; and 2. Whether the Appeal Panel is required to apply the reasoning of the NSW Supreme Court in Rogers No 2.

Does clause 7(b) of the GALA Regulation extend to applications to vary extended trading authorisations that result in trading after midnight?

Appellants' submissions

1. The appellants submit that the Reasons (at [52]) did not adopt the ordinary meaning of the word "for" in cl 7(b), but instead impermissibly read a limitation into the general words used in that subclause. While cll 7(a) and 7(c) cover "application[s] for the granting or removal" of a licence and "application[s] to vary or revoke" a licence condition, respectively, the phrase "application for" an ETA in cl 7(b) is "compendious". The word "for" in this context is a "generic term" with a "high level of general application".
2. Accordingly, the appellants submit that cl 7(b) does not distinguish between the first application for the granting of an ETA and a subsequent application to vary it by adding additional post-midnight hours.
3. Although the Liquor Act distinguishes between the grant of an ETA and its variation in some provisions, cl 7(b) does not make such a distinction, but rather "includes all applications for an ongoing [ETA] by reference to the result, namely, where they would result in trading after midnight".
4. The appellants submit that another result would jar, or be incongruous with, the surrounding provisions of the GALA Regulation, and would have anomalous consequences. For example, a member of the community would have the right to seek merits review of a decision to grant an initial ETA, but not of a decision to extend an existing ETA further into the post-midnight period, despite the significant community impact the latter decision might have.
5. It is not disputed that s 13A of the GALA Act confers appeal rights that are not plenary. However, the appellants submit that applications for a new ETA and to vary an existing ETA occupy the same "contentious" territory referred to in the Second Reading Speech for the bill introducing s 13A. In that speech, the Minister referred to the previous regulatory model, under which there was an "absence of a review mechanism particularly in relation to contentious matters that have a strong public interest", noting that the new bill "provides for licensing decisions to be reviewed in certain circumstances" (Reasons at [48]).
6. Referring to s 33 of the Interpretation Act 1987 (NSW), the appellants argue that their preferred construction of cl 7(b) best promotes the purpose or object underlying the GALA Act and the GALA Regulation. The purpose of the legislative scheme is seen in the objects in s 2A of the GALA Act, in particular, the objects set out in s 2A(a), (c) and (e): 2A Objects of Act The objects of this Act are as follows - (a) to ensure the probity of public officials who are engaged in the administration of the gaming and liquor legislation, (b) to ensure that the Authority is accessible and responsive to the needs of all persons and bodies who deal with the Authority, (c) to promote fair and transparent decision-making under the gaming and liquor legislation, (d) to require matters under the gaming and liquor legislation to be dealt with and decided in an informal and expeditious manner, (e) to promote public confidence in the Authority's decision-making and in the conduct of its members.
7. While it was acknowledged in the Reasons at [47] that the construction of cl 7(b) contended for by the appellants was consistent with these objects, the appellants say that the Tribunal should have gone further, and found that this was the only construction which was consistent. An alternative construction that "arbitrarily limits" the availability of merits review under the legislative scheme is not to be preferred even if there is a "constructional choice" arising from the ordinary words of the provision.
8. The appellants place emphasis on s 48 of the Liquor Act, which relates to community impact statements - reiterating an argument which was made below and rejected by the Tribunal (at [50]-[51]). Section 48(2)(c) provides that "an application for an [ETA] in relation to a hotel licence", amongst other licence types, is a "relevant application" for the purpose of s 48(3), such that it "must be accompanied by a community impact statement". The appellants argue that this is the provision under which the Authority in this case required them to provide community impact statements with their respective variation applications. Accordingly, the appellants argue that the phrase "application for an [ETA], in s 48(2)(c) should be seen as intending to encompass applications to vary an ETA. They submit that this supports their preferred construction of the same phrase in cl 7(b).
9. The appellants also draw attention to the references to "small bar licence" in s 48. Under s 48(2)(c), an application for an ETA in relation to a small bar licence is a "relevant application" for the purpose of s 48(3), such that it must be accompanied by a community impact statement, but there are exceptions from this requirement in certain circumstances for "small bar applications" set out in s 48(3A). "Small bar applications" are defined in ss 48(3B)(c) and (d) to include an "application for an [ETA] for a small bar" and an "application to vary an [ETA] for a small bar". The appellants say this confirms that s 48(2)(c) would otherwise, absent such a carve out, cover both applications for new ETAs and applications to vary existing ETAs for small bars; the words "application for" were regarded by Parliament as sufficiently broad to include applications seeking a change or variation to an existing ETA.

Authority's submissions

1. The Authority contends that the Tribunal reached the correct conclusion as to the construction of cl 7(b), and that the appeal should be dismissed.
2. The Authority emphasised the distinction in the Liquor Act between applications for an ETA (s 49(2), s 51(2)) and applications to vary or revoke an ETA (s 51(9)(b)), the former can be made by the licensee, and the latter can be made by the licensee, the Secretary or the Commissioner of Police (or on the initiative of the Authority itself).
3. The distinction emerges clearly in ss 48(3B)(c) and 48(3B)(d) of the Liquor Act, by the legislation addressing in successive subsections an application for an ETA for a small bar and an application to vary an ETA for a small bar.
4. Section 49(8) of the Liquor Act requires the Authority to be satisfied of the matters listed in s 49(8) in deciding whether to "grant" an ETA, but not when it is deciding whether to vary an ETA: La La Land Byron Bay v Independent Liquor & Gaming Authority [2014] NSWSC 1798 ("La La Land") at [69].
5. In the Authority's submission, it is "clear" that the language in cl 7(b) of the GALA Regulation corresponds directly with an application under s 49(2)(a) and s 51(2) of the Liquor Act for the grant of an ETA, and not with the concept of an application under ss 51(9) and (10) of the Liquor Act seeking the variation of an existing ETA.
6. It is submitted that granting an application to vary an existing ETA cannot be said to "result in trading past midnight" in circumstances where this was already authorised (as in the present matters).
7. The Authority takes a different view of the significance of the other subclauses in cl 7, submitting that, had the Legislature intended that cl 7(b) cover applications "to vary" ETAs as well as applications "for" ETAs, the same words that appear in cl 7(c) ("application to vary or revoke") could and would have been included.
8. The Authority also objects to the appellants' arguments regarding the purpose of the legislative scheme, and its significance in construing cl 7(b). It says there is no foundation for the appellants' assertion that the Legislature must have intended that s 13A of the GALA Act and cl 7 of the GALA Regulation would provide for merits review in respect of applications of this kind. The purpose of s 13A is to allow for limited rights of administrative review, proceeding on the basis that the regulations would draw the line in this respect. The only reliable indication of where those lines are drawn is from the text of cl 7, construed in its full legislative context.
9. In any event, it is submitted that the Authority's preferred construction of cl 7(b) is consistent with the object of promoting public participation and accountability in decisions by the Authority concerning "contentious" applications. The same imperative of public participation and accountability does not apply in circumstances where a decision to allow trading after midnight has already been made, and the question is merely whether to vary the extent of that authorisation.

Principles of statutory construction

1. It is uncontroversial that both the text and context of legislation are relevant to the interpretation of statutory provisions. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, Brennan CJ and Dawson, Toohey and Gummow JJ stated at [88]: "[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent."
2. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ("Project Blue Sky") at [78], the majority of the High Court emphasised that the text, context and "the purpose of the statute" may be relevant to ascertaining the way in which a provision should be read: "However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
3. More recently, the High Court summarised the relevant principles in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text" (footnote omitted). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."
4. The provisions of a statute must not be read divorced from their legislative context, and we must endeavour to construe each provision so that it is consistent with the language and purpose of the other provisions in the statute: Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 46; (1925) 35 CLR 449 at 455 (per Isaacs and Rich JJ); Scott v Federal Commissioner of Taxation [1966] HCA 48; (1966) 117 CLR 514 at 524 (per Windeyer J); Project Blue Sky at [69].
5. It is well established that, where a number of Acts form a scheme of legislation, it is proper to look at all the Acts comprising that scheme for the purpose of construing the expressions in any one of those Acts: Sweeney v Fitzhardinge (1906) 4 CLR 716 at 726; [1906] HCA 73 (Griffith CJ); Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722-4 (Kirby P).
6. Also well-established are the twin statutory presumptions that (a) where a word or phrase is used consistently in legislation, it should be given the same meaning consistently, and (b) where a legislature could have used the same word or phrase but chose to use a different one, the intention was to change the meaning: D Pearce, Statutory Interpretation in Australia, 2019, at 4.6.
7. This is supported by s 11 of the Interpretation Act that "[w]ords and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made."
8. However, the above presumptions are readily rebuttable in circumstances where a different legislative intention is clear. Further, the difficulty of maintaining consistency in a large and frequently amended Act will reduce the likelihood of a court or tribunal being inclined to give a word the same meaning throughout: Pearce, Statutory Interpretation in Australia at 4.9; Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53 at [10]; Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research (2011) 197 FCR 374; [2011] FCA 1133 at [35]. In the present case, the legislative scheme is extensive, across multiple Acts and Regulations, and when key terms are not defined, their use in one context is not necessarily a reliable guide, by itself, to ascertaining their meaning in another.
9. Finally, we note the provision in s 33 of the Interpretation Act.

Text of the provision

1. We accept the appellants' submission that the plain meaning of the text in cl 7(b) is, on its face, wide enough to encompass both fresh applications for an ETA and applications to vary an existing ETA. Both types of application potentially fall into the broad, flexible category of applications "for" an ETA. Such a construction of cl 7(b), considered alone, does not involve putting a "gloss" on or reading words into the language of the provision. However, we also consider it open, without "reading down" or "reading a limitation into" cl 7(b), to construe that provision as referring only to an initial application for an ETA - not an application for a variation. Both meanings are open on a plain reading of the subclause itself, without any undue exertion required to expand or diminish the meaning of the words used.
2. We accept the Authority's argument that the word "for" is distinct from, and probably narrower than, the phrase "in relation to". However, the question is not merely how the word "for" should be construed, but how the phrase "application for an ongoing [ETA]" should be understood in the context of cl 7, the GALA Regulation, and the legislative scheme. Particularly given the versatility of the words used in cl 7(b), it is necessary to have regard to that context in order to ascertain the intended ambit of the provision (although, as noted above, the modern approach to statutory interpretation indicates that ambiguity is not a prerequisite to a consideration of context).

Legislative context

1. The contextual considerations bearing on the interpretation of cl 7(b) are, in our view, finely balanced. The appellants and the Authority listed a number of provisions in the Liquor Act and GALA Act to support their respective contentions that cl 7(b) either does, or does not, encompass applications to vary an ETA. In particular, both parties pointed to other provisions in the statutory scheme in which the phrases "application for an [ETA]" and "application to vary an [ETA]" are used. These provisions relate mainly to the formal requirements for applications made to the Authority and the provision of community impact statements. Their significance is discussed below.
2. First, both parties placed particular emphasis on the immediate legislative context provided by the other subclauses within cl 7 itself. While we agree that the expression "application for" in cl 7(b) is broad on its face, we do not accept the appellants' contention that it was intentionally drafted to be a "compendious" middle ground between the phrase "application for the granting or removal" in cl 7(a) and "application to vary or revoke" in cl 7(c). While we acknowledged above the word "for" is broad, there is nothing to indicate an intention that it denotes a middle ground between other, more specific descriptions in the clause. We agree with the Authority's contention that, had the Legislature intended to make a decision about an application to vary an ETA reviewable, and included in the ambit of cl 7(b), it could or would have picked up the same or similar language to cl 7(c) ("application to vary or revoke").
3. The express use of the word "vary" elsewhere in cl 7 tends against, rather than supports, the general wording in cl 7(b) including variation in its ambit. The Legislature can be taken to have turned its mind to the concept of "variation" when it chose to include variation of licence conditions as a decision attracting merits review in cl 7(c). The Legislature did not make any express reference to variations of ongoing ETAs in cl 7.
4. Second, ss 49 and 51 of the Liquor Act are important provisions relating to the treatment of "variation" applications under the legislative scheme. Section 51 provides separately for the fee payable for an initial application for an ETA (ss 51(2)(b), (7)), and for an application to vary an ETA (s 51(10)) (also see Liquor Regulation 2018 (NSW), s 5(1)). Further, the Liquor Act makes separate provision for who can make applications - in the case of initial applications for an ETA, licensees (s 49(2)), and in the case of variation applications, licensees, the Secretary, or the Commissioner of Police (s 51(9)).
5. However, we do not accept the Authority's submission that the Liquor Act clearly distinguishes in these sections between the "relevant considerations" in making a decision about granting an ETA, and in making a decision to vary an ETA where that variation is being sought by the licensee.
6. Both the Authority and the Tribunal below referred to the distinct provision in ss 49(8) and s 51(13) of the Liquor Act for "restrictions" on the Authority's discretion to grant or vary an ETA. Section 49(8) sets out requirements of which the Authority must be "satisfied" before "granting" an application for an ETA made by the licensee. Section 51(13) sets out the steps the Authority must take before "varying" an ETA, except in circumstances where the application for variation is made by the licensee.
7. In relation to the operation of these sections, the Authority and the Tribunal referred to the Supreme Court's decision in La La Land at [69]-[70]. The Tribunal (at [49]) summarised this decision as holding that: "while s 49(8) of the Liquor Act restricts the Authority's power to grant an ETA by requiring that it be satisfied of the matters in (a) and (b), it does not so operate in relation to a variation of an ETA; the matters in s 49(8), while relevant, are not a constraint on the exercise of power under s 51 [to vary an ETA]".
8. It is not apparent to us that the Supreme Court went so far in that case. The proceedings in La La Land related to an application to vary an ETA that was made by the NSW Police Commissioner, not the licensee. Accordingly, the considerations in s 51(13) of the Liquor Act were directly engaged, while the considerations in s 49(8) were clearly not applicable. The conclusion reached by Adamson J in La La Land on this point was as follows (at [69]): "Although s 49(8) of the Act restricts the Authority's power to grant an ETA by requiring that it be satisfied of the matters in (a) and (b), it does not, in my view, follow that the Authority may not vary an ETA (by reducing or revoking the ETA) unless it is satisfied of the contrary of (a) or (b). Express words would be required to achieve such a result. Section 51 contains no such express words."
9. The conclusion the Supreme Court reached was not that the considerations in s 49(8) are irrelevant to an application to vary an ETA made by a licensee, but rather, that the Authority is not bound to consider their "inverse" in deciding whether an ETA should be reduced or revoked on the application of another party, or on the Authority's own initiative. Indeed, Adamson J stated at [70] that "it may be accepted" that "the matters in s 49(8), though not a constraint on the exercise of power under s 51, [are] nonetheless relevant factors" when considering whether an ETA should be varied.
10. Conversely to the circumstances in La La Land, where an application to vary an ETA is made by a licensee, as in this appeal, it is expressly provided that the considerations in s 51(13) as to variation do not apply. In fact, there is no provision in the legislative scheme that specifically sets out what the Authority must consider when deciding whether to vary an ETA on the application of a licensee. It is not necessary for us to decide in this case whether the considerations in s 49(8) of the Liquor Act apply to an application to vary an ETA made by a licensee. However, we note that the Supreme Court's comments in La La Land are not necessarily fatal to such a construction. At the very least, we do not think it is accurate to say that the Liquor Act clearly "distinguishes between an application for the grant of an ETA and an application to vary an ETA" in relation to the "relevant considerations to be taken into account in determining an application" (Reasons at [49]). At best, s 49(8) of the Liquor Act provides for the considerations relevant to determining an initial application for an ETA; s 51(13) provides for the considerations relevant to variation when sought by somebody other than the licensee; and there is no provision at all directly dealing with the considerations relevant to variation when sought by the licensee.
11. We accept that applications for the granting of an ETA and applications to vary an ETA are dealt with separately, at least to some extent, in ss 49 and 51 of the Liquor Act. While it is not accurate to say that the legislative scheme provides comprehensively for the treatment of initial applications on one hand, and variation applications on the other, we think it clear that the Legislature intended to designate them as separate concepts, and to indicate that they be treated differently in material respects.
12. Third, both parties provided extensive analysis of s 48 of the Liquor Act, relating to the provision of community impact statements with classes of application. Subsections 48(2)(c), (d) and (e) each provide that "application[s] for an [ETA]" in relation to various licence types are "relevant applications" requiring provision of a community impact statement under s 48(3). It is not in dispute that community impact statements accompanied the variation applications in the cases of Henadeck and Mr Niraula, however the legal basis on which the provision of such statements was required is not clear. We note that, in addition to the other legal bases on which a community impact statement is to accompany an application as provided for in s 48(2), s 48(2)(f) provides the Authority with the power to require provision of a community impact statement with a particular application, or class of application. This presumably includes variation applications of the type under consideration in these appeals. The fact that community impact statements in these cases, and possibly others, were said to be required for applications to vary ETAs does not mean that s 48(2)(c) supported any such request on the part of the Authority, nor that the phrase "application for an ETA" in s 48(2) (and thus cl 7(b)) includes applications to vary ETAs.
13. As indicated above, both parties also referred to ss 48(3B)(c) and 48(3B)(d) in their submissions - the Authority as indication of a legislative distinction between applications "for" and applications "to vary" an ETA, and the appellants as indication that, but for this subsection, both would constitute an "application for an [ETA] in relation to a … small bar licence" under s 48(2)(c). Each of these arguments has some merit. As with many of the issues in these appeals, the constructional choice presented by s 48(3B) is finely balanced.
14. Wherever possible in construing a statute, courts and tribunals are to give meaning to every word that the Legislature has chosen so as to avoid words being rendered redundant: Project Blue Sky at [71]. On the Authority's view, an "application for an [ETA] in relation to a … small bar licence" in s 48(2)(c) would not include applications to vary an ETA, and so the express exclusion of variation applications in s 48(3B)(d) would be otiose. However, on the appellants' view, an "application for an [ETA] for a small bar" in s 48(3B)(c) would include an application to vary an ETA, and so the following subsection (d) expressly referring to variation applications would be otiose. In this sense, neither construction of the phrase "application for an ETA" provides a fully seamless or satisfactory reading of ss 48(2)(c) and 48(3B).
15. However, in our view, the Authority's analysis is more persuasive. Although this has the result that the "carve out" for applications to vary in s 48(3B)(d) is strictly unnecessary, the clearly drawn distinction in ss 48(3B)(c) and (d) between applications "for" an ETA and "to vary" an ETA is difficult to ignore, and points to an intentional differential treatment of those concepts by the Legislature. It is important to note that s 48(3B) relates to small bar licences, and not hotel licences as in the present case. Subsection (3B) was inserted into the Liquor Act on 1 July 2013, long after that Act was first introduced, but prior to the introduction of the GALA Regulation and cl 7(b). By itself, the language used in this subsection is insufficient to support the Authority's preferred construction of cl 7(b). However, it is perhaps the starkest example in the legislative scheme of the Legislature drawing an express distinction, side by side, in the language used to describe applications "for" and "to vary" an ETA.
16. The task of statutory interpretation in these appeals is made difficult given that the legislative scheme under consideration is extensive, frequently amended, and contains words and phrases that are neither defined nor used entirely consistently. The ambiguity of the language used in cl 7(b) makes consideration of statutory context essential. While no single contextual indicator tends decisively towards a construction that the phrase "application for an ongoing ETA" does, or does not, include an application to vary, viewed cumulatively, those indicators tend to favour the Authority's preferred construction.
17. It is clear that the Legislature intended to deal with and describe applications to vary ETAs separately, at least in certain key respects, to initial applications "for" ETAs. Further, there is nothing in cl 7 or in the legislative scheme to support the appellants' contention that the phrase "application for an ongoing ETA" is "compendious". That is, the appellants were unable to point to any provision in the scheme that expressly, or by necessary implication, requires that an application to vary an ETA be treated the same as an application for a new ETA. As the Authority submitted, an application for the grant of an ETA and an application to vary an ETA are not two applications "for" an ETA, made at different points in time. They are not applications of the same kind.
18. On a final note, although this issue was not pressed at the appeal hearing, it is convenient for us to make brief comments about the meaning of the word "ongoing" in cl 7(b). The appellants initially appeared to suggest that the use of the word "ongoing" supported its contention that cl 7(b) applies to variations of existing ETAs. We agree with the Authority's submission, and with Tribunal's finding below, that the use of the word "ongoing" does not have such an effect (Reasons at [33]). The word "ongoing" is not defined or used anywhere else in the GALA Act or the Liquor Act. However, it would seem clear from the provisions in s 49(5) of the Liquor Act that the word "ongoing" denotes an ETA that allows extended trading "on a regular basis", rather than for one or more "special occasions". Accordingly, the word "ongoing" has no bearing on whether the type of application described by cl 7(b) includes an application to vary an existing ETA, or is limited to applications for an initial ETA for trading past midnight.
19. In our view, considered in its statutory context, the phrase in cl 7(b) "application for an ongoing ETA" does not encompass applications both to grant new ETAs and applications to vary existing ETAs.

Objects, purpose and extrinsic material

1. It is clear from 33 of the Interpretation Act that a construction that would promote the purpose or object underlying an Act or statutory rule (including a regulation) is to be preferred to a construction that would not promote that purpose or object. However, we do not think that the purpose of the legislative scheme - either as set out in the objects clauses of the GALA Act and Liquor Act, or as illustrated by the extrinsic materials related to the bill introducing s 13A of the GALA Act - assists in determining the intended scope of cl 7(b). Given some ambiguity in the meaning of cl 7(b), we think that regard can properly be had to extrinsic material pursuant to s 34(1)(b) of the Interpretation Act, but only of course to the extent that any such material assists in the task of construing cl 7(b).
2. Section 13A was introduced to provide an avenue of administrative review in relation to decisions by the Authority, and this is consistent with the object of ensuring the Authority is "accessible and responsive" to those who deal with it (s 2A(b)), promoting "fair and transparent decision-making" under the legislation (s 2A(c)), and promoting "public confidence" in the decision-making of the Authority (s 2A(e)). However, it is equally clear that this right of review was intended to be limited. In our view the statutory objects and purposes of the legislative scheme neither suggest that cl 7(b) should be construed beneficially or narrowly.
3. It is clear, from the Minister's Second Reading Speech, that the GALA Act was intended to introduce "low-cost, non-technical recourse" for local communities and business operators in the form of a "review mechanism particularly in relation to contentious matters", and that under the GALA Act, "licensing decisions" would be able to be reviewed "in certain circumstances". The parties agree that the right to seek merits review under the scheme was not intended to be plenary. However, the appellants placed significant emphasis on the Minister's description of "contentious matters", contending that applications to vary ETAs should be included in this category.
4. The Authority argued that the same imperative of public participation and accountability (including through NCAT's review jurisdiction) does not apply where the Authority is considering whether to grant an application to vary an ETA, where trading after midnight is already permitted. We do not agree. Depending on the particular circumstances, an application to vary an existing ETA for trading after midnight may well be contentious. For instance, an application for a variation to an existing ETA which seeks an extension from 1am close to 4am close is likely to be contentious.
5. In our view, the Minister's Second Reading Speech does not assist in the task of construing cl 7(b) of the GALA Regulation. It is clear from that speech that a limited merits review scheme was contemplated. Whether particular decisions would be reviewable by NCAT was left to be addressed in the regulations. In the matters before us, the only reliable indication of precisely where those lines are drawn is from the text of cl 7(b), construed in its legislative context. The purpose of a statute is not something which exists outside the relevant statute. Rather, "[i]t resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction": Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44]. As French CJ and Hayne J emphasised in Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [26]: "[the] danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions."

Is the Appeal Panel bound to follow the reasoning of Schmidt J in Rogers No 2?

1. The appellants argued that, not only was the Tribunal's construction of cl 7(b) of the GALA Regulation wrong, the Tribunal should have applied the reasoning of Schmidt J in Rogers No 2 to arrive at the result that the decisions in question were administratively reviewable under cl 7(b). The Authority argued that the Appeal Panel is bound to follow that reasoning (and the Tribunal below was so bound).
2. The Tribunal at [35]-[40] details the facts and Schmidt J's comments in Rogers No 2. We will not repeat that background here.

Appellants' submissions

1. The appellants submitted that the Tribunal's decision not to apply the reasoning of Schmidt J in Rogers No 2, in particular at [109], was "legally flawed". Schmidt J's comments at [109] in Rogers (No 2) were as follows: Contrary to the case advanced for the Commissioner, had the application been for a variation of the Hotel's authorisation for extended trading, so that it would still cease after midnight, but at some earlier time than was permitted under the existing authorisation, the application would undoubtedly have been one that "would result in trading after midnight", if granted. That under the existing authorisation, later trading after midnight was permitted, would not alter the nature of the variation application. Such an application would thus have fallen within reg 7. But that was not the application which the Commissioner made.
2. The appellants accept as "technically correct" the Tribunal's characterisation of Schmidt J's remarks in this paragraph as obiter but say that her Honour's reasoning was "the kind of obiter that has emerged from detailed consideration and not the kind that is a throwaway remark on a matter not germane to the case": Nowicka v Superannuation Complaints Tribunal [2008] FCA 939 ("Nowicka") at [21] (Sundberg J).
3. The appellants cite the decision in Farah Constructions v Say-Dee (2007) 230 CLR 89; [2007] HCA 22 ("Farah Constructions") at [134], in which it was held that "seriously considered dicta" of the High Court should not be departed from by "intermediate courts of appeal" lower down the judicial hierarchy. In addition, the appellants rely on Fullerton Cove Residents Action Ground Incorporated v Dark Energy Ltd (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38 ("Fullerton Cove") at [281] (Pepper J), which they say is authority for the approach in Farah Constructions being applicable more widely, such that "seriously considered dicta" of the NSW Supreme Court should not be departed from by the Tribunal, including the Appeal Panel.
4. The appellants point to a number of aspects of Schmidt J's decision which indicate its "seriously considered" nature - including that Schmidt J received submissions from the Commissioner of Police which "put the case against the recognition of merits review"; that her Honour considered the objects of the GALA Act and had regard to the drafting of that Act and the GALA Regulation; and that her Honour "concluded expressly and in the clearest and most considered language that had the application been for a variation of the Hotel's [ETA], so that it would still close after midnight, but at some earlier time ... the application would undoubtedly have been one that 'would result in trading after midnight'".
5. The appellants submit that "[t]his kind of considered obiter dicta [should be] regarded as highly persuasive", "tantamount to a binding decision", and "should not be departed from by a lower court or tribunal unless that court or tribunal [comes] to the view that it was clearly wrong": Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 155 FCR 170; [2005] FCAFC 56 ("Sok") at [81] (Branson J); Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [274]-[295].
6. Departing from such "considered obiter" on the basis that it is plainly or clearly wrong requires a strong conviction that the reasoning was erroneous, not merely open but not preferred, and that the error can be demonstrated with a degree of clarity by applying the correct legal analysis: Gett v Tabet at [294]-[295]. The appellants submit that the Tribunal's decision did not meet this requirement, as it did not explain why Schmidt J's reasoning was in error. In any case, it is submitted that Schmidt J's reasoning "can in no way" be described as "clearly wrong". The Tribunal's finding that Schmidt J's decision was distinguishable, merely on the basis that it was obiter, was not a proper reason not to follow her observations that were "directly applicable" to the circumstances of this matter.
7. The appellants submit that the Appeal Panel is required to adopt the approach articulated by Ward J in Ying v Song [2009] NSWSC 1344 at [19]-[24] (cited in Fullerton Cove at [279]), which requires "considered dicta of appellate courts, though not strictly binding on courts in a lower or equal position within the judicial hierarchy, must be afforded great weight and should be departed from only with the greatest of caution".
8. The appellants accepted that the presence of the NCAT President (a Supreme Court judge) on an Appeal Panel in a particular case may grant it a higher status in the judicial hierarchy than would be the case if the Appeal Panel was constituted solely by non-judicial members. Nonetheless an Appeal Panel whose members include the President must, like all Appeal Panels, exercise caution in departing from findings of a Supreme Court judge, and not depart from those findings unless satisfied they are clearly wrong.
9. The appellants argued that absent a finding that Schmidt J's dicta in Rogers No 2 is clearly or plainly wrong, only the Court of Appeal, could depart from that dicta.

Authority's submissions

1. The Authority submits that Schmidt J's obiter comments in Rogers No 2 do not bind the Appeal Panel, and that it is not necessary for the Appeal Panel to conclude that the obiter comments were "plainly wrong".
2. The Authority submits that Schmidt J's dicta in Rogers No 2 was not "seriously considered" in the sense referred to in Ying v Song, and as described in Farah Constructions at [134]. In particular, Schmidt J did not consider, or give due weight to, the opening words of cl 7(b) which require that an application be "an application for an ongoing [ETA]". As a result, her Honour did not address or provide any reason for dismissing the distinction between an application for an ETA and an application to vary an ETA, which emerges from the Liquor Act itself.
3. The Authority emphasised that, even if submissions are made on an issue where that issue does not need to be determined for the outcome of a case, both the Court and parties are likely to give it less attention, and relevant considerations may be overlooked.
4. Accordingly, the Authority submits that the Appeal Panel is not required to find that Schmidt J's comments regarding the construction of cl 7(b) were "plainly wrong", because they were not "seriously considered". Alternatively, if the Appeal Panel finds otherwise, the Authority submits that the comments were "plainly wrong", as they are inconsistent with the words of cl 7(b) in their full statutory context.

Relevant principles

1. The general principles applicable to the precedential weight of obiter dicta, including the role of the appellate court hierarchy, were largely agreed in these appeals. They can be summarised as follows: 1. Decisions are only authority for what they decide, as opposed to what was held without argument: Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 at [45]; Spence v State of Queensland 93 ALJR 643; [2019] HCA 15 at [294] (Edelman J). 2. An intermediate appellate court should not decline to apply a legal principle which has been set out in "seriously considered dicta" by a majority of the High Court, and which is otherwise consistent with a substantial line of common law authority: Farah Constructions at [134]. 3. Although "considered dicta" of an intermediate appellate court is not strictly binding on courts in a lower or equal position within the judicial hierarchy, it must be afforded great weight and should be departed from only with the greatest of caution: Ying v Song at [19]; Fullerton Cove at [279]. 4. Intermediate appellate courts should not depart from the decisions of intermediate appellate courts in other jurisdictions in relation to the interpretation of the same legislation or of common law principles: Farah Constructions at [135]; Gett v Tabet at [286]; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 483; [1993] HCA 15 at [4]. 5. The same principle should apply when the Court is asked to depart from one of its own decisions that is on point, and when it is confronted with a decision of an Australian intermediate appellate court of comparable jurisdiction in relation to similar legislation: Harrison v Melhem [2008] NSWCA 67 at [188] (Mason P). 6. Generally speaking, intermediate appellate courts are not legally bound to follow their own earlier decisions (including statements made in ratio decidendi). However, as a matter of practice, they should only depart from such authority, or the authority of courts of coordinate jurisdiction within the national system, if they are of the view that the decision is "plainly wrong": Gett v Tabet at [273], [277]-[278], [281]. 7. As a matter of comity, single judges of the NSW Supreme Court will generally follow an earlier decision of another single judge, although they are not legally bound to do so: see e.g. Segal & Anor v Waverley Council [2005] NSWCA 310 at [48], [57]-[59]; New Cap Reinsurance Corporation Ltd (in liq) v A E Grant & Ors [2008] NSWSC 1015 ("New Cap Reinsurance") at [109] (White J). 8. Statements made in obiter dicta have varying degrees of authority. For example, a "mere passing remark or a statement or assumption on a matter that has not been argued" or "broad observations made on the spur of the moment" will have less weight than "a considered judgment on a point fully argued": Nowicka at [21]-[25]. 9. The weight accorded to obiter dicta will vary depending on the circumstances in which it was made: Ying v Song at [19], [23]. 10. In circumstances where a matter was not fully argued before the earlier court, and "relevant material" was not drawn to its attention, a subsequent court of coordinate jurisdiction may consider that a party before it should not be "disadvantaged" by reason of the earlier obiter conclusion: Sok at [34] (per Branson J, with Marshall J agreeing); see also New Cap Reinsurance at [109]. 11. In order to depart from such earlier authority, a court must have a "strong conviction" that the earlier decision was erroneous (not merely that the former approach is no longer preferred), and must be able to clearly demonstrate "the nature of the error … by the application of correct legal analysis": Gett v Tabet at [294]-[295]. 12. That reasonable minds may differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument is "plainly wrong": Nowicka at [21]-[22].
2. In Fullerton Cove, Pepper J examined the meaning of the phrase "seriously considered", and what is required to ascertain whether a decision is "plainly wrong", in the context of determining whether to depart from obiter statements of Biscoe J in two previous Land and Environment Court decisions, and those of Spigelman CJ in a Court of Appeal decision, regarding whether s 112 of the Environmental Planning and Assessment Act 1979 (NSW) gives rise to a jurisdictional fact.
3. Pepper J referred at [282]-[283] to the "useful guidance" in Informax International Pty Ltd v Clarius Group Ltd (2011) 192 FCR 210; [2011] FCA 183 at [56], in which Perram J emphasised that "plainly wrong" means more than mere, or even strong, disagreement with the decision in question - it requires an actual conclusion that the reasoning process has miscarried.
4. The "difficulty" with Biscoe J's obiter statements in Fullerton Cove case was said to be that they did not "disclose the reasoning process dispositive to the controversy". Thus, Pepper J found herself "unable to tell if the decisions [were] 'plainly wrong', or conversely, if they [were] not 'plainly wrong'": Fullerton Cove at [284].
5. Furthermore, although the dictum of Spigelman CJ fell in circumstances which "requir[ed] due deference to be paid to it", Spigelman CJ's remarks could "not, in all fairness to his Honour, and with the utmost of respect, be characterised as 'considered' in the sense described by Ward J in Ying v Song (at [21])": Fullerton Cove at [285].
6. Accordingly, Pepper J found that the appropriate course of action in all the circumstances was to examine for herself whether s 112, on its proper construction, gives rise to a jurisdictional fact. As it happened, Pepper J came to the same conclusion as that suggested by Biscoe J and Spigelman CJ - but did not consider that she was required to do so by adopting their obiter reasoning.

Application of principles

1. Based on these principles, we accept the appellants' submission that the Appeal Panel, however constituted, should follow seriously considered obiter dicta of a single Supreme Court judge unless it thinks that obiter is plainly wrong. In this respect, although not necessary for us to decide in this case, we are persuaded by the appellants' arguments that the obligations of the Appeal Panel when a judicial member such as the President is sitting, and when one is not, are for practical purposes much the same.
2. In the matters before us, we do not think it is necessary to decide whether Schmidt J's statements, made in obiter, were "plainly wrong". This is because we are persuaded by the Authority's submission that the obiter dicta at [109] of Schmidt J's reasoning, while somewhat "considered", was not "seriously considered".
3. As White J put it in New Cap Reinsurance at [109], Schmidt J "did not have to consider the particular matters [we] consider to be persuasive". We also note that Schmidt J said in Rogers No 2 at [100] that: "The language used in this regulation is admittedly awkward, as the parties both submitted. It is not necessary, however, to resolve all of the questions which they addressed as to the proper construction of this regulation."
4. It is not clear what submissions Schmidt J had before her about the construction of cl 7(b) of the GALA Regulation, and whether her Honour's attention was drawn to the possible meanings of the phrase "application for an ongoing [ETA]". Schmidt J's reasons did not address the proper construction of that part of cl 7(b), including the effect of its statutory context, and there is nothing to indicate that submissions were made to her Honour specifically on this point.
5. Rather, it is apparent that her Honour's focus, and the focus of the submissions made by the parties, was on the broad import of the words "would result in trading after midnight". It can be accepted that Schmidt J gave serious consideration to the question of whether an application by the Commissioner to vary an ETA, such that trading would cease at an earlier time than previously but still extend past midnight, would be an application that "would result in trading after midnight" if granted, satisfying the second part of cl 7(b). So much is made clear in [102], where her Honour said: "Regulation 7(b) is concerned with applications for an ongoing extended trading authorisation and reg 7(c) with applications to vary or revoke a licence condition, which in either case, "would result" in trading after midnight. In understanding what this term means, it is apparent that the regulation is concerned with applications which, if granted, would have the specified result."
6. The other paragraphs preceding [109] in Rogers No 2 deal more broadly with the interpretation of cl 7 as a whole, or with subclauses (b) and (c) together, highlighting the importance of the repeated phrase "would result in trading after midnight". Rather than assisting the appellants in this case in suggesting that the construction of cl 7(b) as a whole was "seriously considered", this tends to suggest that Schmidt J's focus was not on the issues which have arisen during this appeal - namely, whether an application to vary an ETA constitutes an "application for an ongoing [ETA]" within the meaning of cl 7(b).
7. With respect, we do not think that her Honour gave serious consideration to whether such an application would satisfy the first part of cl 7(b) - "an application for". At no point did Schmidt J address the specific construction of this phrase.
8. Rather, the broad statement at the conclusion of [109] - "[s]uch an application would thus have fallen within reg 7" - appeared to flow only from Schmidt J's analysis of the circumstances in which an application would "result in trading after midnight". Insofar as that statement is read as a pronouncement on the meaning of the words "an application for an ongoing [ETA]", it can, with respect, more properly be characterised as a "passing remark … statement or assumption on a matter that has not been argued" than a "considered judgment" on a "point fully argued": Nowicka at [21].
9. As a result, we do not think it can be said that her Honour "seriously considered" the meaning of the clause as a whole. It follows that the Tribunal did not err in declining to follow Schmidt J's obiter reasoning.

Conclusion

1. We agree with Schmidt J when she commented in Rogers No 2 that the language used in the regulation is "awkward" (at [100]). This is particularly so with regard to cl 7(b). In our view, whether cl 7(b) provides administrative review rights to relevant persons, on the facts before us, is a question on which reasonable minds will differ. The submissions from the parties in these proceedings were very helpful and we would like to thank counsel for their efforts in this regard.
2. Notwithstanding some ambiguity in the drafting of cl 7(b), after careful consideration, we do not think that the words in cl 7(b), read in context, encompass applications to vary an ETA that would result in trading after midnight where that ETA already permits trading after midnight. Accordingly, we are not satisfied that the Tribunal below erred in dismissing the applications for administrative review made by Henadeck and Mr Niraula for lack of jurisdiction.
3. We are also satisfied that the Appeal Panel is not required to apply the reasoning of Schmidt J in Rogers No 2, on the basis that her Honour's obiter comments with respect to the meaning of cl 7(b) were not "seriously considered" within the meaning of the authorities referred to earlier.
4. It follows from our reasons that the appeals should be dismissed.

Orders

1. We make the followings orders: 1. The appeal in proceedings AP 20/13337 is dismissed. 2. The appeal in proceedings AP 20/13332 is dismissed.

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: 30 September 2020