Hurlstone Park Hotel Operations Pty Limited v Independent Liquor and Gaming Authority; Orr v Independent Liquor and Gaming Authority

NCAT Administrative and Equal Opportunity|2024-06-24

REASONS FOR DECISION

The Substantive Proceedings (2023/00035087) concern an application filed on 2 February 2023 for administrative review of a decision of the Independent Liquor and Gaming Authority (the Authority) to refuse an application for an extended trading authorisation (ETA) in respect of the Hurlstone Park Hotel (Hotel). Hurlstone Park Hotel Operations Pty Ltd (HPHOPL), the applicant in those proceedings, has been at all relevant times the owner of the Hotel.
This decision concerns a preliminary point raised by the Authority alleging that HPHOPL had no standing to bring its application and that the Tribunal had no jurisdiction to grant the relief sought. That argument was based on the fact that the licensee of the Hotel had changed on multiple occasions since the ETA application was originally lodged with the Authority. The hearing of the Substantive Proceedings was therefore adjourned pending the outcome of litigation involving Taphouse Investments Pty Limited and the Authority, which addressed a similar issue.
A number of persons who had held the position of licensee of the Hotel at material times, together with HPHOPL, also commenced proceedings seeking relief as parties aggrieved by the decision of the Authority to refuse the ETA application by filing an application on 3 October 2023 (the Secondary Proceedings, 2023/00313081). The applicants were Mark Leonard James Orr (Mr Orr), Francesco Stramandinoli (Mr Stramandinoli), Warwick David Arnaout (Mr Arnaout) and HPHOPL.

Relevant Facts

On 30 November 2020, Mr Orr became the licensee of the Hotel.
On 23 July 2021, Mr Orr applied to the Authority under s 49(2) of the Liquor Act 2007 (NSW) (Liquor Act) for an extended trading authorisation (ETA Application).
On 19 January 2023, the Authority wrote to Mr Orr stating that the ETA Application was refused in a meeting held on 15 June 2022, and providing reasons for that decision (Refusal Decision). At that time, Mr Orr was not the licensee of the Hotel.
Mr Orr had ceased to be the licensee of the Hotel on 8 February 2022. The licence was then transferred a number of times so that the licensee of the Hotel was, relevantly: 1. Jonalee Kopko from 9 February 2022 to 15 May 2022; 2. HPHOPL from 16 May 2022 to 31 May 2022; 3. Mr Arnaout from 1 June 2022 to 25 July 2022; 4. Andriy Peykov from 26 July 2022 to 13 November 2022; 5. Mr Stramandinoli from 14 November 2022 to 8 March 2023; 6. Bijhay Adhikari (Mr Adhikari) from 9 March 2023 to 28 September 2023; 7. HPHOPL (again) from 29 September 2023 to 12 November 2023; and 8. Mr Adhikari (again) from 13 November 2023 to around 17 June 2024.
On 18 June 2024, Mr Orr became (again) the licensee of the Hotel.

The CAT Act

The "guiding principle" in s 3(d) of the CAT Act is: to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible..
In respect of joinder of parties, s 44 of the CAT Act provides: 44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has - (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. …
In respect of the dismissal of proceedings, s 55 of the CAT Act provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …
Section 39 of the CAT Act provides: 39 What constitutes an application For the purposes of this Act, an application to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision.
Rule 27 of the Civil and Administrative Tribunal Rules 2014 (NSW) (CAT Rules) provides as follows: The parties to proceedings for a general decision or administrative review decision are - (a) the applicant, … (d) any other person who is made a party to the proceedings by the Tribunal under s 44 of the Act, and …

The Liquor Act

Section 48 of the Liquor Act (Community impact) provides, inter alia: (2) In this section - Relevant application means any of the following - (a) an application for a hotel licence, club 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 5am) … (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 - [sets out various matters, including the community impact statement provided with the application] that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community.
Section 49 deals specifically with ETAs: 49 Extended trading authorisation - general provisions (1) Application of section This section applies in relation to the following types of licences (referred to in this section as a relevant licence) - (a) a hotel licence, (b) a club licence, (c) an on-premises licence (other than an on-premises licence that relates to a vessel), (d) a packaged liquor licence, (e) a producer/wholesaler licence. (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 and 5 am on any day of the week, (b) in the case of a relevant licence other than a hotel licence - a specified period between midnight and 5 am on any day of the week, (c) in any case - a specified period between 5 am and 10 am on a Sunday, (d) in any case - a specified period between 10 pm and midnight on a Sunday. …

Gaming and Liquor Administration Act 2007 (NSW) (GLAA) and Gaming and Liquor Administration Regulation 2016 (NSW) (GLA Regulations)

Section 13A of the GLAA provides for administrative review by the Tribunal: 13A Review by NCAT of certain decisions of Authority (1) A relevant person who is aggrieved by a decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation prescribed by the regulations for the purposes of this section (a prescribed application) may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of that decision. (2) (Repealed) (3) An application for administrative review made under subsection (1) must - (a) be made within 28 days of notice of the decision being published on the website of the Department, and (b) be accompanied by the fee prescribed by the regulations. … (5) In this section, relevant person in relation to a prescribed application means - (a) the applicant, or (b) a person - (i) who was required to be notified of the prescribed application, and (ii) who made a submission to the Authority or the Secretary in respect of the prescribed application.
Clause 7 of the GLA Regulations provides: 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… (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, ….

The Administrative Decisions Review Act 1997 (NSW) (ADR Act)

Section 6 of the ADR Act provides: 6 Meaning of "decision" (1) General meaning A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, … (g) doing or refusing to do any other act or thing. (2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation. (3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it.

Submissions of the Parties

The parties were represented by counsel - Mr Cheshire SC for the Authority and Mr Bolster for the Applicants.

The Authority's submissions

The Authority's written submissions were filed before Mr Orr became the licensee of the Hotel again. They are relevantly set out below: …The position of an application for an ETA where there has been a change in licensee was squarely addressed in Taphouse. That decision is not distinguishable on the facts here. Mr Orr. The applicants contend that the correct and preferable decision is to grant Mr Orr's application for an ETA… However, Mr Orr is no longer the licensee and thus the Tribunal could not grant any relief in those terms: Taphouse at [158] Other former licensees. For the same reason, relief cannot be granted to any of the other former licensees that seek to be joined. If a successor licensee seeks an ETA, he/she/it must do so by making an application to the Authority in his/her/its own name so that the application can be determined by the Authority by reference to that person. Thus, the only person who could now seek an ETA is Mr Adhikari, the current licensee, which is precisely what he had done by making his own application to the Authority.
There is no dispute that Mr Orr subsequently returned as the licensee of the Hotel. At the hearing, the Authority submitted that the proceedings must be dismissed because of a lack of jurisdiction, because Mr Orr was not the licensee at the time that the Refusal Decision was issued. They submitted that the provisions of the Liquor Act made it clear that there was no power to issue the refusal decision, because it had to be issued to the applicant who had continued as the licensee from the time of the application to the time of its issue.

The Applicants' submissions

The Applicants filed written submissions on 6 May 2024. In respect of Mr Orr, it was noted that the Authority had acknowledged in its board paper that there had been a number of changes to the licensee of the Hotel between the date of lodgement of the ETA application and the date of the paper.
Further submissions were filed by the Applicants on 21 June 2024, by which time Mr Orr had again become the licensee of the Hotel. Accordingly, they submitted that Taphouse, which only addressed the position of an appellant/applicant, who is not the licensee at the time of the hearing, could have no application; orders could be made in favour of Mr Orr, and there was therefore no prospect that the appeal/application for review, will be moot. On that basis, they submitted that it was both appropriate and necessary that Mr Orr be joined to the Substantive Matter, consistent with the principles in John Alexander's Clubs Pty Ltd v White City Tennis Club [2010] HCA 19, where a non-party should be joined to proceedings if the outcome of such proceedings would have a direct effect on their rights.
At the hearing, the joinder application was not pressed in respect of Mr Arnaout and Mr Stramandinoli. In essence, the Applicants submitted that Mr Orr was a proper party, he was the applicant for the ETA, he had been issued the Refusal Decision and, on the Authority's own submissions, Mr Orr was aggrieved, and was a proper party. Further, the Authority had not taken issue with the applicant being HPOHPL when the application was lodged. There was nothing in the legislation, or in Taphouse that suggested that continuity of the licensee was required, and nothing turned on the fact that Mr Orr was not the licensee when the Refusal Decision issued.

Authority's submissions in reply

The Authority said that we were here concerned about an application for review of a decision the Authority made. The Tribunal stands in the stead of the Authority, and the question was "What was the jurisdiction at the time the refusal decision was issued". Mr Orr had no rights at the time of the Refusal Decision; he could not have been granted an ETA at that time, and as a result the Tribunal had no jurisdiction.

consideration

The guiding principle of the Tribunal is to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible.
In Taphouse, the issue was one of utility, in circumstances where the Appeal Panel found (and the Supreme Court agreed) that there was no decision that could be made that would be of any use. Because the licensee who applied for the ETA was no longer the licensee.
In that case, the licensee (Taphouse Investments Pty Ltd (TIPL)) applied to the Authority for an ETA, was refused, applied to the Tribunal for administrative review, and remained the licensee when the Tribunal issued its decision to uphold the Authority's refusal. TIPL appealed to the Appeal Panel. By the time the matter was under consideration by the Appeal Panel, the hotel had been sold to new owners, and there was a new licensee. However TIPL (the now former licensee) was contractually obliged under the terms of the sale agreement to continue the appeal process. The appeal was dismissed, for the primary reason that it was of no utility. Because even if the decision of the Appeal Panel were favourable, the ETA could only be granted to TIPL, who was not then not the licensee. The ETA application (and rights to pursue it in appeal proceedings) did not "travel" with the licence, or allow a subsequent licensee to "step in"; the rights lay with the original applicant for the ETA. After considering the statutory context (including the construction of s 49 of the Liquor Act), Schmidt AJ said: 82. I have concluded that the internal appeal proceedings were moot, as the Appeal Panel concluded and that this did not wrongly deprive Taphouse of its right to appeal. 83. Rather, the Appeal Panel recognised that what was raised by Taphouse's appeal could not result in any orders in its favour on a further review and so should not be further entertained. … 94…the appeal was moot because the Tribunal could no longer make effective orders on Taphouse's application in relation to extended trading hours at the Tavern. …
There were some entertaining submissions from counsel before me - and discussions regarding whether (or not) upon a change of licensee, an ETA application fell into a "black hole" or was "put into the bin", never to return. The Authority submitted that the Refusal Decision should - in hindsight - never have been made, because Mr Orr, who applied for the ETA, was no longer the licensee. And that was key to the conclusion that the Tribunal had no jurisdiction.
I do not accept that there is no jurisdiction for the Tribunal to conduct the administrative review because there was no applicant licensee at the time the Refusal Decision was made and that, in hindsight, the Tribunal should not have issued a decision.
In this case, the Authority did issue a Refusal Decision. And in this case, it was Mr Orr who applied for the ETA as licensee, and it is Mr Orr who now is before us as the current licensee and who seeks to be joined as a party. Nothing said by the Supreme Court in Taphouse compels me to conclude here that where an applicant for an ETA ceases to be a licensee before the refusal decision issues, their rights in respect of the ETA application irretrievably lapse for all time. First, the facts in Taphouse are clearly distinguishable from this case due to Mr Orr now being the licensee again; these were not the facts before the Appeal Panel, or the Supreme Court in Taphouse, in respect of which the findings were made (and must be contextualised). Secondly, there is nothing in the legislation that provides for this outcome.
Further, it does not matter whether or not the Refusal Decision was validly made, or validly issued, by the Authority. 1. Sections 6(2) and (3) of the ADR Act specifically extend a "decision" to include "a purported exercise" of a function conferred on the Authority under the Liquor Act to refuse the application, or a decision made without power. 2. Section 5 of the CAT Act also confirms that there is a "decision" if there is a purported decision under enabling legislation, "even if the decision was beyond the power of the decision-maker to make".
For the reasons noted below, I have also decided to allow the joinder of Mr Orr. The Authority's application to dismiss the proceedings is therefore refused because the Tribunal does not lack jurisdiction; nor are the proceedings misconceived or lacking in substance. They are not "moot", as was the case in Taphouse, and there is utility in proceeding.
The discretion conferred on the Tribunal by s 44(1) of the CAT Act to join a party is general and stated broadly. However, the Tribunal is guided by the discretion in s 44(2), as has been acknowledged in the following cases: 1. In Commissioner of Police NSW v Fine (2014) 87 NSWLR 1 (Fine) at [38]- [41], the Court of Appeal said: 38. The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party "if the Tribunal considers the person should be joined as a party": s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is "improperly or unnecessarily joined, or ... ceased to be a proper or necessary party": s 44(2). The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a "proper or necessary party" ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions "proper" and "necessary", noting that the expressions are used in s 44(2) disjunctively and that a "proper" party may not be a "necessary" party. 39. A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application. The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal. The Appeal Panel appeared to accept that this was so: see at [37], referred to at [30] above. Further, the Rules provide for the joinder of the decision-maker: r 27(b). For that reason alone, the Authority was properly joined as a party in this case and because of the provisions of the rules is a necessary party to the proceedings. However, the fact that a party such as a decision-maker is a necessary party to proceedings does not of itself require that party to take an active role in the proceedings. This is discussed below in relation to the Hardiman principle. 40. The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party… 41. A party who is an applicant in the process before a decision-maker would also be a proper party. In the ordinary course, a successful applicant would have a relevant interest in the review proceedings and would, therefore, be a proper party to an appeal. … 46 Under the Administrative Decisions Review Act, s 63, the Tribunal is required to make the correct and preferable decision on the material then before it: s 63(1). The Tribunal is not confined to the material before the decision-maker. Importantly, for the purposes of making "the correct and preferable decision", the Tribunal may exercise all of the functions conferred on the decision-maker. In effect, in exercising the merits review function, the Tribunal stands in the position of the decision-maker. It must follow that persons who are parties to the application before the decision-maker are proper parties before the Tribunal. … 1. The Appeal Panel of this Tribunal stated in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 (Rice) at [105]: When deciding whether to exercise the discretion to join a person as a "party", "the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case" are all relevant factors… Whether prejudice would be caused by joinder, such as delay to proceedings, is relevant. Further, as previously stated by the Tribunal, [w]hen exercising its powers under the [CAT Act], including the power under s 44(1), the Tribunal is to seek to give effect to the guiding principle…to facilitate the just, quick and cheap resolution of the real issues in the proceedings. [citations omitted]
Further, a person "ought to be joined as a party if its legal rights are directly affected by the orders sought but not otherwise": Metcash Ltd v Jardim (No 2) [2010] NSWSC 1042 at [7]; see also John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1; 266 ALR 462 at [131]-[132].
It is clear from the above that Mr Orr ought to be joined as a party to the Substantive Proceedings because he is a "proper" party, and likely also a "necessary party": 1. Mr Orr was an applicant in the process before the decision-maker, being the Authority: see Fine at [41]. 2. Mr Orr is a "relevant person" under s 13A(5)(b) of the GLAA. (He is also relevantly "aggrieved" for the purpose of s 13A(1)). 3. Mr Orr's interests, as the current licensee, will be directly affected by the decision of the Tribunal and joining him as a party is consistent with the statutory process set out in ss 48 and 49 of the Liquor Act, which involves the consideration of deciding whether to grant the ETA. He has an interest in the decision. 4. For completeness, Mr Orr's current position as a licensee means that he has been assessed to be a fit and proper person by the Authority; per Taphouse at [112] - [113]: As the Appeal Panel found, it is the licensee at the time of the extended hours application who has already been found on initial grant or later transfer of the licence, to be a fit and proper person to carry out an hotel's licensed business, who can make and pursue and extended hours application…. The current licensee has been found to be a fit and proper person to carry out the Tavern's licensed business.
I also find that there is no prejudice in the joinder of Mr Orr to the Substantive Proceedings. His joinder would neither unnecessarily complicate nor lengthen the proceedings. It would be in furtherance of the guiding principle found in s 36 of the CAT Act, namely the just, quick, and cheap resolution of the real issues in the proceedings.
As I have found above, the Authority's application to dismiss the proceedings is refused. I am not sure of the utility in the Secondary Proceedings progressing, but note that Mr Orr and HPHOPL are among the applicants in that matter. This can be dealt with at the next directions hearing, or the parties to those proceedings may choose to withdraw them prior to that directions hearing.

Orders

I make the following orders in respect of the Substantive Proceedings: 1. Mark Leonard James Orr is joined as a party to the proceedings. 2. Warwick David Arnaout is refused leave to be joined as a party to the proceedings. 3. Francesco Stramandinoli is refused leave to be joined as a party to the proceedings. 4. The application by the Authority (Respondent) for dismissal of proceedings 2023/00035087 is refused.
I make the following orders in respect of the Secondary Proceedings: 1. The application by the Authority (Respondent) for dismissal of proceedings 2023/00313081 is refused.

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: 22 July 2024

Gaming and Liquor Administration Regulation 2016(NSW)

(GLAA) and Gaming and Liquor Administration Regulation 2016(NSW)

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