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

Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 7, 9, 63
Civil and Administrative Tribunal Act 2013 (NSW), ss 30, 44, 55, 60, 83
Gaming and Liquor Administration Act 2007 (NSW), ss 2A, 6, 13A
Gaming Liquor and Administration Regulation 2016 (NSW) cl 7
Liquor Act 2007 (NSW), ss 7, 9-12, 14, 49, 51, 59-64
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Hurlstone Park Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2024] NSWCATAD 199
Independent Liquor & Gaming Authority v Hurlstone Park Operations Pty Ltd [2024] NSWCATAP 232
LA Ward Racing Syndicate v Trotting Appeal Committee (1987) 46 SASR 467
Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 52
Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC 240

Texts Cited: Nil

Category: Procedural rulings

Parties: Hurlstone Park Hotel Operation Pty Ltd (First Applicant)
Mark Leonard James Orr (Second Applicant)
Independent Liquor and Gaming Authority (Respondent)

Representation: Counsel:
P Bolster (Applicants)
A Cheshire SC and M Gaven (Respondent)
Solicitors:
LAS Lawyers (Applicants)
Maddocks Lawyers (Respondent)

File Number(s): 2024/00463932

Publication restriction: Nil

JUDGMENT

1. This judgment concerns an appeal from the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT). The substantive legal question relates to standing to pursue an appeal through NCAT from a decision refusing to authorise extended trading under s 49 of the Liquor Act 2007 (NSW). The right to sell liquor beyond standard trading hours is known as an “extended trading authorisation” (ETA).

2. Hurlstone Park Hotel Operations Pty Ltd (Hurlstone Park) is the first applicant, it is the corporation in control of the Hurlstone Park Hotel (the Hotel). Mark Leonard James Orr (Mr Orr) is the second applicant, he was the licensee who commenced the application for the subject ETA. The applicants are represented by P Bolster of counsel.

3. The Independent Liquor and Gaming Authority (the Authority) is the respondent. It is the statutory corporation constituted under s 6 of the Gaming and Liquor Administration Act 2007 (NSW) and is charged with administration of much of the Liquor Act. It is represented by A Cheshire SC and by M Gaven of counsel with him.

4. The parties relied on a joint court book of 473 pages (Ex A). It consisted almost entirely of the decisions of NCAT and the materials put before it.

Background

5. On 23 July 2021, Mr Orr, the then licensee of the Hotel, applied to the Authority under s 49(2) of the Liquor Act to be granted an ETA permitting him to trade outside the standard trading hours.

6. On 8 February 2022, Mr Orr ceased to be the licensee of the Hotel. Mr Orr was succeeded by:

(a) Jonalee Kopko on 9 February 2022; (b) Hurlstone Park on 16 May 2022; (c) Warwick Arnaout on 1 June 2022; (d) Andriy Peykov on 26 July 2022; (e) Francesco Stramandinoli on 14 November 2022; (f) Bijay Adhikari on 9 March 2023; (g) Hurlstone Park (again) on 12 November 2023; (h) Mr Orr (again) on 18 June 2024; (i) Mr Adhikari (again) on 9 July 2024; (j) Mr Orr (again) on 21 October 2024; (k) Mr Adhikari (again) on 12 February 2025; (l) Thuy Tien Tran on 15 April 2025.

7. There is some dispute as to when the Authority made the decision to refuse the ETA. Hurlstone Park’s position is that it occurred at a meeting on 15 June 2022. This date was accepted in NCAT below. However I note on 19 January 2023 the solicitors of Hurlstone Park were informed by the Authority that the application for the ETA had been refused.

8. On 2 February 2023, Hurlstone Park filed an application in NCAT for administrative review of the Authority’s decision (the Primary Proceedings). The matter was fixed for hearing on 4 and 5 October 2023.

9. On 29 September 2023 the Authority filed submissions whose main import was that Hurlstone Park had no standing to proceed with the appeal in NCAT because Mr Orr was no longer the licensee.

10. At around that time, the October hearing was adjourned in anticipation of the delivery of this Court’s decision in Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC 240 (Taphouse), a subject to which I will return.

11. On 3 October 2023, the issue of standing having been raised, Mr Orr, Mr Stramandinoli and Mr Warwick filed applications to be joined to the Primary Proceedings which had been commenced by Hurlstone Park. Mr Orr was the licensee who initiated the application, Mr Stramandinoli was the licensee at the time of the decision to refuse the application was notified (19 January 2023), Mr Arnaout was the licensee at the time the applicants submit the decision was made (15 June 2022). As noted above, Mr Orr was again licensee for the Hotel from 18 June 2024 to 8 July 2024 inclusive and from 21 October 2024 to 11 February 2025 inclusive.

12. At the same time, Hurlstone Park, Mr Orr, Mr Stramandinoli, and Mr Warwick also filed a further application in NCAT for administrative review of the decision to refuse Mr Orr’s application for an ETA (the Secondary Proceedings).

13. By order of NCAT dated 22 July 2024, the Authority’s application to dismiss both sets of proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) was unsuccessful at first instance. Mr Orr alone was joined in the Primary Proceedings (Messrs Stramandinoli and Arnaout were not) and the Secondary Proceedings were allowed to remain on foot: Hurlstone Park Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2024] NSWCATAD 199 (First Instance Decision). Section 55 of the Civil and Administrative Tribunal Act is in the following terms:

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

14. On 15 November 2024, on appeal to the Appeal Panel of NCAT, the Authority was successful in having both the primary and secondary proceedings dismissed: Independent Liquor & Gaming Authority v Hurlstone Park Operations Pty Ltd [2024] NSWCATAP 232 (Appeal Decision).

15. On 17 February 2025, the Appeal Panel of NCAT refused to make orders as to costs with the intent that the parties bear their own costs: Independent Liquor & Gaming Authority v Hurlstone Park Hotel Operations Pty Ltd (No 2) [2025] NSWCATAP 26 (Costs Decision).

16. By way of amended summons filed 15 April 2025, the applicants seek leave to appeal under s 83(1)(a) of the Civil and Administrative Tribunal Act; an order that the orders of the Appeal Panel in the Appeal Decision (and, it seems, in the Costs Decision) be set aside and that proceedings be remitted to it; and an order that the Authority pay the applicants’ costs. Section 83 reads as follows:

83 Appeals against appealable decisions

(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

…

(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—

(a) an order affirming, varying or setting aside the decision of the Tribunal,

(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

…

(5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.

Statutory framework

17. Schmidt AJ in Taphouse provided a comprehensive and thorough outline of the licensing regime under the Liquor Act and so only some critical provisions are referred to below.

18. The sale of liquor in New South Wales is governed by the Liquor Act. It is an offence for a person to sell liquor unless the person is authorised to do so by a licence issued under the Act: Liquor Act s 7. It is an offence to sell or supply liquor contrary to one's licence: s 9.

19. A 'hotel licence' is one of the licences that may be granted and held under the Act: Liquor Act s 10(1)(a). The 'standard trading period' is the period from 5am to midnight: s 12(1)(a). A hotel licence authorises the licensee to sell liquor by retail on the licensed premises for consumption on or away from the licensed premises: s 14(1). Liquor may be sold for consumption on the licensed premises or for consumption away from the licenced premises during the standard trading period or at such other times as may be authorised by an ETA: ss 14(2), 14(4).

20. The Authority may authorise a licensee to trade beyond the standard hours: s 49. If during the application process there is a change in the information regarding the application, the applicant must immediately notify the Authority of that change: s 51(4).

21. Sections 59-64 of the Liquor Act provide for the transfer of licences between licensees, and the transfer of licenses between different premises. In short, those sections provide that an application for a transfer of a licence is to be dealt with and determined by the Authority as if it were a fresh application by the ultimate licensee. That is to say, the rights which are enjoyed under a licence, including any rights held under any ETA attaching to a licence, cannot be transferred between premises or licensees as of right. Any such transfer is to be treated as if it were a fresh application for a licence.

22. As stated, the Authority refused Mr Orr’s application for an ETA on 19 January 2023 (or at the latest when Hurlstone Park became aware of the refusal).

23. Through the combined effect of s 13A of the Gaming and Liquor Administration Act; cl 7(b) of the Gaming Liquor and Administration Regulation 2016 (NSW); ss 7, 9 and 63 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act, a decision to refuse an ETA under s 49 of the Liquor Act is a decision that is appealable to NCAT. Section 13A of the Gaming and Liquor Administration Act is a key provision, it governs the right to make a review and is as follows:

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.

…

(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.

24. If there is no person party to the proceedings who meets the description of “relevant person who is aggrieved” the jurisdiction of the Tribunal never arises. Any proceedings in this instance are a nullity. It is important to note that the Appeal Decision does not seem to have turned on, or even involved, s 13A, although it is mentioned. Rather, the Appeal Decision seems to have turned on s 55 of the Civil and Administrative Tribunal Act and the application of Taphouse, which I consider below.

Taphouse

25. There are some important factual differences between this appeal and that in Taphouse. Taphouse Investments Pty Ltd, the original applicant for an ETA, had had a clear break from the premises to which the licence attached, and had completely disengaged from the premises and business. At the time of the proceedings in NCAT and the Supreme Court, Taphouse Investments had no interest in the business or the premises to which the licence attached: Taphouse at [9]. Taphouse Investments was contractually bound to pursue the appeals: Taphouse at [49]. Furthermore, neither the then-current owner nor any of the licensees succeeding Taphouse Investments had sought to pursue Taphouse Investments’ application for an ETA: Taphouse at [7]. In Taphouse at [7]-[10] Schmidt AJ stated:

“[7] Neither the current owner nor any of Taphouse’s successor licensees have sought to pursue its application, as it has. Nor have any of them sought to become parties to the proceedings Taphouse has pursued, or made any other application for extended trading at the Tavern.

[8] The evidence is that Taphouse had an agreement with the current owner of the Tavern to continue pursuing its review of the Authority’s refusal of its application. It also agreed to pursue its appeals. Taphouse relied on this to explain its delay in commencing these proceedings and to advance its appeal.

[9] But the current position is that Taphouse is no longer the licensee of the Tavern and has no other interest in it, the conditions of its licence, or its own unsuccessful extended trading hours application. All the licensees which succeeded it had the right to make a fresh application for extended trading at the Tavern, but none of them have exercised that right.

[10] Neither the new owner nor any of those licensees have sought to be made parties to any of the proceedings Taphouse has pursued. Nor have they been substituted for Taphouse, a course which it considered could have been pursued, although that is disputed. Taphouse’s belated application to join the current owner and then licensee as parties to the internal appeal was refused.”

26. In Taphouse, therefore, Taphouse Investments was pursuing a license as if on a frolic of its own, disengaged with the business of the premises. The then-current owners and successor licensees were not as heavily involved as they have been in this appeal.

27. Importantly, her Honour characterised the principal dispositive question as “whether the internal appeal before the Tribunal [NCAT] was moot”: Taphouse at [14]. “Mootness” was the key operative concept in her Honour’s decision. “Mootness” seems to have been her Honour’s shorthand for proceedings that were, within the meaning of s 55(1)(b) of the Civil and Administrative Tribunal *Act “*frivolous or vexatious or otherwise misconceived or lacking in substance”. The word “moot” had also been used in the decision of the Appeal Panel below (Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171).

28. The capacity of Taphouse Investments to pursue an appeal was decided as a matter of statutory construction of the Liquor Act, not as a matter of jurisdiction under s 13A of the Gaming and Liquor Administration Act, which was only mentioned in another context: Taphouse at [42], [160]; see below. Her Honour considered that the proceedings before NCAT were moot because, whatever the course of those proceedings, an order under s 49 properly construed (the provision under which ETAs are granted) granting an ETA could only be made in the favour of the licensee at the time of the decision and only where that licensee was also the applicant: Taphouse at [37], [114]. Her Honour also pointed out the absurdity that would result if this weren’t the case:

“[128] Were it otherwise, a former and current licensee would be able to pursue competing reviews or appeals in relation to failed applications. Or a successor licensee could make a competing new application for extended hours authorisation at the same hotel, or could challenge an application a former licensee was pursuing.”

29. Her Honour upheld the decision of the Appeal Panel of NCAT dismissing the proceedings on the basis of “mootness” because NCAT, standing in the shoes of the Authority, would have had no known power under s 49 of the Liquor Act to make orders in favour of any of the licensees past, current, or future. Any favourable decision would have been a nothingness as it would have been unactionable. Although her Honour does not seem expressly to deal with s 55 of the Civil and Administrative Tribunal Act, that was the operative provision and was squarely dealt with by the Appeal Panel below.

30. Finally, her Honour refused leave to amend a pleading so as to appeal a refusal by the Appeal Panel to join the then-current licensee (Kelly Marie Hughes) in the proceedings. This refusal was based on a jurisdictional issue presented by s 13A of the Gaming and Liquor Administration Act:

“[42] It is a party to an internal or external appeal who may, with leave, appeal to this Court: s 83(1) of the Tribunal Act. Neither the current owner nor current licensee were parties to the internal appeal or this appeal. There is also no suggestion that they made submissions to the Authority about Taphouse’s application, or that they were a “relevant person” under s 13A of the Gaming and Liquor Administration Act 2007 (NSW), entitled to be heard on the review, or sought to do so.”

The Appeal Decision

31. As stated, the Appeal Decision relied on and quoted heavily from Taphouse. The Appeal Panel noted at [53], that at both the time the decision was made (15 June 2022) and the date at which it was published (19 January 2023), that Mr Orr was no longer the licensee. On the reasoning of Taphouse, this disabled the Authority and NCAT, standing in its shoes, from making an order in Mr Orr’s favour under s 49 of the Liquor Act.

32. Before the Appeal Panel, Hurlstone Park argued that its case was distinguishable from that of Taphouse, in particular because in Taphouse, when NCAT came to make its decision the applicant-licensee was no longer the licensee. However, here, the applicant-licensee, Mr Orr, was again the licensee when the matter was before the Tribunal.

33. At [69]-[70] of the Appeal Decision the Appeal Panel stated:

“[69] True it is that there are distinguishable facts in Taphouse, however we see the key applicable principle was identified by the Court at [128], namely that former and current licensees are not able to pursue competing reviews or appeals in relation to failed applications, and were it otherwise, a successor licensee could make a competing new application for extended hours authorisation at the same hotel, or could challenge an application a former licensee was pursuing.

[70] By way of extension to that application, we consider it must follow that, for the purpose of the present appeal, the Authority could never have granted Mr Orr an ETA in the first place, as he was no longer licensee, and therefore the Tribunal could not have done so on review. In this respect see Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14] and [15].”

The applicants’ submissions

34. The applicants urge that the Appeal Panel “failed to grapple with the significant differences” between Taphouse and the present matter. As best I understand it, it is submitted that the Appeal Panel impermissibly let the fact that a ruling in the applicants’ favour would concede that it would be possible to have multiple concurrent applications for the same premises:

“What the Appeal Panel drew from Taphouse was essentially a proposition that any other construction of the relevant provisions, but in particular the construction adopted at first instance might result in competing applications for review by a former licensee whilst there was on foot a competing application for review by a third party who was the current licensee.”

35. Similarly, the applicants submitted that the Appeal Panel was of the incorrect view that for an applicant to be an “aggrieved person” within the meaning of s 13A of the Gaming and Liquor Administration Act, they must also be the licensee at the time the relevant decision is made.

36. It is submitted that the above interpretation is wrong because s 13A itself provides a mechanism to prevent the pursuit of multiple proceedings in NCAT. This is because of the closed definition found in s 13A. “A relevant person who is aggrieved” may apply to NCAT: s 13A(1). A “relevant person” is the applicant: s 13A(5).

37. Apart from this, it is submitted that in this particular instance there was no prospect of any competing review application since, unlike from in Taphouse, Mr Orr was the licensee. It is submitted that Mr Orr seeks to be joined to the proceedings in his capacity as a licensee, and not a former licensee.

38. The applicants urges that an object of the statutory regime established by the Gaming and Liquor Administration Act is the informal and expeditious handling of matters: s 2A. It is submitted that if the Authority’s and the Appeal Panel’s construction of s 13A is accepted, that would lead to a process of review that is neither informal nor expeditious. It would mean, for example, that more than two years after Mr Orr filed his first application, the current licensee would have to start that process again. It is submitted that this could not have been the intention of Parliament.

The Authority’s submissions

39. The Authority stresses that the decision of the Appeal Panel was correct in its construction and application of s 13A. On the one hand, at [23]-[24] of the Appeal Decision it was noted that neither Hurlstone Park nor another two licensees were an “applicant” and therefore none of them were a “relevant person”. The result was that none of them hand standing under s 13A. On the other hand, it was said at [24] of the appeal decision that although Mr Orr was an applicant, he was not a licensee at the time of the decision, and therefore not “aggrieved” by the decision. The result is that same that he did not have standing under s 13A.

40. The Authority submitted that the applicants do not engage with this issue and fail to explain how Mr Orr was aggrieved in circumstances where he had ceased to be a licensee:

“Section 13A governs the right to make a review. If the person is within section 13A, then the application must be made within 28 days of the decision. The jurisdiction depends upon the person being the “applicant” and being “a person who is aggrieved by [the] decision”. As the Appeal Panel observed at [26] “As a matter of logic, the test of jurisdiction must therefore be determined as at the date of the relevant decision. This is reinforced by the use of the present tense in that phrase”.”

41. The Authority quoted from Taphouse as follows:

“[144] Given the words used, it must be accepted that s 49(2) is not concerned with the premises, its licence or licence conditions, but with what the applicant licensee is authorised to do there, after grant of its application for authorisation of extended hours trading.

…

[153] This reflects that s 49 does not empower the Tribunal to make orders in favour of a licensee on a former licensee’s application.

…

[156] For these reasons, it follows that it cannot be accepted that the Liquor Act contemplates that if a hotel licence is transferred to a new licensee after the former licensee’s application for authorisation for extended trading has been refused, that the former licensee can successfully pursue a review or appeal in respect of its failed application.

[157] Accordingly, Taphouse’s external appeal must also fail.

[158] As events have unfolded, if Taphouse’s appeal were now upheld and its application referred back for further review, while the Tribunal would again stand in the position of the Authority as decision maker, it could make no orders on Taphouse’s application. It is only a licensee who can successfully pursue orders about such authorisations. Taphouse is no longer such an applicant.

[159] That this result is unfair, contrary to the statutory scheme or impractical, as Taphouse contended, cannot be accepted. It will not necessarily be the case that a former and successor licensee will take the same view about an application which the Authority has refused, a review or appeal, or what extended trading hours should be pursued at a hotel.

[160] Considerable time has passed since Taphouse made its unsuccessful application after community consultation. A number of licensees have succeeded it and none have pursued its or any other application. That the current licensee has any interest in Taphouse’ s application, or its own, is not apparent.

[161] The Authority necessarily became aware of the changes in the Tavern’s licensees, it having to approve them. But this did not require or permit its consideration of their fitness to conduct extended trading hours at the Tavern, as the legislative scheme contemplates, none of them having sought such authorisation.

[162] The result of the course which Taphouse and its successor licensees have each pursued must thus be the refusal of its appeal. That is not the result of absurd, impractical constructional choices which the Appeal Panel made, as Taphouse contended, but the intended operation of the statutory scheme.”

Consideration

Leave to appeal

42. An appeal under s 83 of the Civil and Administrative Tribunal Act 2013 requires the leave of this Court. In Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 52 (Targeted Property Investments) at [33], [36]-[37] Griffiths AJA collated important authorities on s 83 and the granting of leave generally. At [38] his Honour stated:

“[38] An applicant for leave under s 83 must demonstrate something more than that the impugned decision of the Appeal Panel is arguably wrong. Ordinarily, leave will only be granted where there is a matter that involves an issue of principle, a question of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable.”

43. It is my view that, in regard to the Appeal Decision, the construction of s 49 of the Liquor Act is a matter of general public importance. That section touches on very many venues which serve alcohol and therefore the community more broadly. It is desirable that the meaning of that section be clear and unambiguous. Although Taphouse has provided important and comprehensive guidance, further comments are necessary to cover this precise factual scenario.

44. On the other hand, and as I will expand on below, the same considerations do not apply to the Costs Decision. Most importantly, the applicants have not sufficiently identified an error of law, but have only pointed to a few discretional points which were matters wholly for the primary decision maker. As Griffiths AJA stated in Targeted Property Investments at [33], “it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself.”

45. I would not grant leave to appeal from the Costs Decision, nor is it clear that this Court has any power to give leave to appeal where a question of law has not been sufficiently indicated.

The Appeal Decision

46. As to the issue presented by s 13A of the Gaming and Liquor Administration Act, it is not clear that the fact that an applicant-licensee has ceased to be a licensee cannot be “aggrieved” within the meaning of that section. For a helpful overview of that terminology see LA Ward Racing Syndicate v Trotting Appeal Committee (1987) 46 SASR 467 at 477-480. For example, as in Taphouse, the applicant-licensee who has ceased to be licensee may be contractually bound to pursue an appeal in the case of rejection by the authority (setting aside for the moment the utility of any such appeal).

47. Also, it is not clear that only persons who fall within the definition of “relevant person who is aggrieved” can be joined to proceedings concerning an ETA. Section 13A of the Gaming and Liquor Administration Act states that it is only such a person who “may apply”, however section 44 of the Civil and Administrative Tribunal Act separately determines who may be joined to a proceeding. Relevantly, it is sufficient for NCAT to consider that the person “should be joined”:

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.

…

48. However, determination of s 13A of the Gaming and Liquor Administration Act is not necessary to deal with this appeal. In Taphouse, this Court decided that under s 49 of the Liquor Act, the Authority, or NCAT standing in its shoes, could only grant an extended trading authorisation to the present licensee, and further only where that licensee was the applicant (because of s 13A of the Gaming and Liquor Administration Act).

49. In Taphouse, that question was treated as quasi-jurisdictional, although her Honour employed the term of ‘mootness’, which I have described above. There, the applicant-licensee had fallen out of the picture, and NCAT, which stood in the shoes of the Authority, had no power to grant an authorisation in its favour. For that reason, the proceedings were moot and were to be dismissed.

50. Here, the applicant-licensee at some point again became the licensee. The applicants submit that this is sufficient to distinguish the present case from Taphouse so as to arrive at a different result.

51. Accepting the correctness of Taphouse, the applicants here, as best as I understand it, seem to suggest that proceedings before the Authority or before NCAT could fluctuate between soundness and mootness depending on the identity of the licensee. For example, it is implied that a non-applicant licensee could pursue the length of the appeal through NCAT (moot all the way through) before stepping down to allow the applicant to become licensee again (at which point the proceedings would become sound). It is true that the Liquor Act contemplates changes in circumstances relating to an application (for example, it requires that the applicant immediately notify the Authority of any such changes: ss 40 (5) and 51(4)), however, it does not seem to contemplate a change of licensee within the same application.

52. The interpretation advanced by the applicants is somewhat unsatisfactory and does not sit well with Taphouse where it was emphasised that an application for a license or an authorisation is concerned with the suitability of the particular licensee who will hold the license. There is no right to transfer licences between licensees, but such an application for transfer is to be considered as a fresh application.

53. It is my view that the right to pursue an application under s 49 of the Liquor Act expires when a licensee changes. That is the case whether the application is before the Authority at first instance or working its way through appeals in NCAT. The applicants’ submission that this leads to an inconvenient result (for example, that applications would need to be renewed whenever licensees change) has some force. However, as contended by the Authority, such an argument from inconvenience was rejected by Taphouse at [159].

54. Also, that inconvenience is countervailed by the consideration that if it weren’t the case that the right to pursue an application under s 49 expired upon change of a licensee, it would be possible for successive licensees concurrently to pursue parallel applications under s 49 relating to the very same premises and venue. That in my view is a greater inconvenience. Moreover, there is capacity in the Liquor Act to overcome such an inconvenience, for example, by installing a corporate licensee whose management could more easily be altered.

55. There are good policy reasons to require that the same licensee pursue the application all the way through. It is necessary for the Authority to form a view about the particular licensee who will be holding the license or authorisation and determine their suitability. This process is hindered where there is such a frequent change of licensees as here (see par 6 of this judgment).

56. Therefore, I agree with the Appeal Panel’s conclusion at [69]-[70] (reproduced above at par 33 of this judgment). It was correct to dismiss the proceedings under s 55(b) of the Civil and Administrative Tribunal Act. The right to advance those proceedings (whether before the Authority or before NCAT) expired when Mr Orr ceased to be a licensee. The appeal from the Appeal Decision is dismissed.

The Costs Decision

57. As noted above, the applicants also sought leave to appeal from the Costs Decision where NCAT refused to make an order as to costs with the intention that each of the parties bear their own costs in relation to both the First Instance Decision and the Appeal Decision. That refusal was based on NCAT’s general rule as to costs found in s 60 of the Civil and Administrative Tribunal Act which indicates that parties before it are to bear their own costs and that the Tribunal may only award costs if it is satisfied that there are special circumstances warranting such an award. Section 60 is as follows:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may—

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5) In this section—

costs includes—

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

58. The applicants’ chief contention both before NCAT and before this Court was that an injustice (whether procedural or substantive) had been effected by the Authority’s late argument concerning jurisdiction. The Appeal Panel was not persuaded that there had been. It considered that its power to award costs under s 60 never even arose because it was not satisfied of special circumstances. It stated that even if that power had arisen, it would have been “disinclined” to exercise it because of the multiplicity of the proceedings involving the Authority and the licensees of the Hurlstone Park Hotel (Costs Decision at [30]).

59. It is also to be noted that Hurlstone Park was the unsuccessful party before NCAT. Despite this, it sought costs in what is usually a no-costs jurisdiction.

60. The applicants have not revealed any error of law vitiating the Costs Decision or any relevant question of law to be determined. This is not withstanding that it points to nine discrete factors which are said to prove that the “factual basis of [the Costs Decision] was flawed and in error”. Those nine points describe some fine discretionary considerations which would be important in determining a costs order by a primary decision maker. In that instance, it is not clear that, here, this Court has jurisdiction to disturb the Costs Decision. Section 83 of the Civil and Administrative Tribunal Act provides for appeals to this Court, with leave, on questions of law.

61. Whether by refusing leave to appeal or by entertaining the application, I would not disturb the Costs Decision.

Costs in this Court

62. Costs are discretionary. The general rule is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. There is no reason to depart from this rule. The first applicant is to pay the respondent’s costs.

The Court orders that

1. Leave to appeal from the decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal in Independent Liquor & Gaming Authority v Hurlstone Park Operations Pty Ltd [2024] NSWCATAP 232 is granted under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).
2. The appeal on the substantive issue is dismissed.
3. The appeal from the costs decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal in Independent Liquor & Gaming Authority v Hurlstone Park Hotel Operations Pty Ltd (No 2) [2025] NSWCATAP 26 is dismissed.
4. The amended summons filed 15 April 2025 is dismissed.
5. The first applicant is to pay the respondent’s costs of these proceedings.

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