Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority

Should the Tribunal join the Commercial Competitors as a party?

IBL submits that the application for Commercial Competitors to be joined as a party should not be granted for the following reasons.
There is nothing special or unique about the position of the Commercial Competitors warranting their inclusion as a party to the Tribunal proceedings.
IBL contends that the Commercial Competitors are in the nature of submitters only. Reference to the Act which provides for 'open standing' provisions, whereby any person can make a submission in relation to an application for a licence pursuant to that Act. IBL contends that the purpose of receiving submissions from members of the public, including the Commercial Competitors, allows for decisions to be made by the Authority in the public interest and in accordance with the objects of the Act. Further, submissions can include ensuring the object of the Act for the sale and supply of liquor occurs consistent with community expectations.
IBL contends that the Commercial Competitors have very fulsomely and comprehensively exercised their right to make submissions. Those submissions are contained in the s 58 of the Administrative Decisions Review Act 1997 (the ADR Act") material currently before the Tribunal in respect of the substantive proceedings.
One of the arguments the Commercial Competitors rely upon in support of their application is that they have a "fear that the agency might not pursue their commercial interests as vigorously or in the same way as the commercial competitors might do themselves." In this regard IBL refers to Auld v Independent Liquor and Gaming Authority [2017] NSWCATAD 160 at [19] where the Tribunal stated that administrative review proceedings are not to be conducted in an adversarial manner. IBL submits that the liquor licencing legislative framework obliges administrators, such as the Authority, to make appropriate representations to the Tribunal based on material filed in the administrative review application, and it is this material the Tribunal ultimately takes into consideration when deciding what the preferable decision in taking into consideration the wider public interests and balancing the objects of the legislation. Therefore, there is no reason to think the Authority would not fulfil its duty to assist the Tribunal.
IBL contends that the Commercial Competitors have an innate self-interest which would only seek to delay (and ultimately defeat) the commencement of a competing business within the area in which IBL seeks to trade if it is granted the Licence. The joinder of the Commercial Competitors has the real potential of unnecessarily complicating and lengthening the proceedings than would otherwise be necessary and not in furtherance of the guiding principle found in s 36 of the NCAT Act, namely the just, quick, and cheap resolution of the real issues in proceedings.
The Authority is able to call any evidence that the Commercial Competitors could call including witnesses or file material which negates the need to join the Commercial Competitors to the substantive proceedings.
Where the Commercial Competitors were involved in the process before the Authority when it considered the initial application, that involvement does not make it appropriate that they also be joined as a party to administrative review proceedings.
IBL draws to my attention an analogous decision in the Land and Environment Court, where the Chief Judge made the following observations in Morrison Design Partnership Pty Limited v North Sydney Municipal Council and Director-General of the Department of Planning (2007) NSWLEC 802 at [54]: '54 The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of the determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit as to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a part to proceedings.'
One of the Commercial Competitors, Woollahra Hotel and Cellars, contends that s 13A(5)(b) of the Gaming and Liquor Administration Act 2007 ('GLAA') provides it with a right to apply to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 of a decision of the Authority, where that entity is aggrieved by the decision made in relation to an application under the provisions of the gaming and liquor legislation, including the Act, and prescribed by the Regulations. While the substantive decision under review is not a decision adverse to the interests of Woollahra Hotel and Cellars, because the licence was refused, I should still consider the operation of s 13A(5)(b) when deciding whether to grant leave to join the Commercial Competitors.
IBL says it is not the point that one of the Commercial Competitors may have had a right to initiate such a review if the originating application had been granted by the Authority, instead of being refused. I accept IBL's submission that the intent of s 13A(5)(b) of the GLAA enlivens the Tribunal's review jurisdiction in circumstances where the Authority had granted a licence application and the Commercial Competitors are aggrieved. That is not the case in this matter.
IBL seeks to distinguish the Commercial Competitors' position as to the position of the parties in Commissioner of Police NSW v Fine (2014) 87 NSWLR 1. In its written submissions it contends "In that case, the Commissioner was the applicant for a banning order made by the authority. The person who was objecting to the banning order (Mr Fine) commenced administrative review before the Tribunal naming only the authority as the respondent. The Commissioner, being the original applicant to the order, sought to be joined to the administrative review proceedings; Auld, supra at [13]. Ultimately, it was held that the Commissioner ought be joined."
IBL submits that the interests of the Commercial Competitors in this application are no more than a submitter and more akin to the position of the Secretary in Auld, where joinder was refused.
The Commercial Competitors submit that the principles set out in Fine do not confine a party seeking to be joined that that party is a proper or necessary party. They also contend that the application to be joined need not be special or unusual as found in Fine at [80]. The Commercial Competitors contend that the discretion conferred by s 44 of the NCAT Act is broader than what could be found in Rule 6.19 of the Uniform Civil Procedure Rules. A party whose interest are affected by the decision of the Authority would be a 'proper party' to the proceedings.
Counsel for the Commercial Competitors contends the following reasons should be considered in deciding whether they be joined to the substantive proceedings: The Commercial Competitors are uniquely placed in the local community and are aware of the impact on that community concerning liquor licensing and the impacts it has. By their joinder, the Tribunal will be fully informed given their experience in dealing with liquor licensing and how the community would be impacted by further liquor licences being granted.
He said, it is not sufficient for the Tribunal to obtain only advice from the Commercial Competitors. The administrative review hearing is a de novo hearing and new material could be relied upon. The hearing may change as to what was originally framed in the written material put to the Authority. There is a risk that the Authority may not know of new information that was previously not put before it. Cross-examination of witnesses may be relevant within the administrative review hearing process and answers might require an immediate response which could include tendering additional information to assist the Tribunal in coming to the correct and preferable decision. The decision of the Tribunal will affect the Commercial Competitors directly, but also, the liquor industry generally and community life within the Woollahra area as set out in the objects of the Act. The application to join is consistent with the community participation process within the statutory operation of s 44(1) and (2) of the Act, which provides: (1) Any person may, subject to and in accordance with the regulations, make a submission to the Authority in relation to an application for a licence. (2) 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 licence.
These are matters which the Authority, and the Tribunal, may investigate and enquire into when deciding whether or not to grant a licence. The joining of the Commercial Competitors also allows the Tribunal to take into consideration broader community issues which recognises the impact of the sale of liquor on the community in accordance with s 48 of the Act.
The Commercial Competitors reject that joining them to the proceedings would unnecessarily extend the substantive hearing contrary to furthering the guiding principle is s 36 of the NCAT Act. The Commercial Competitors contend that if they are not joined as a party, they cannot meaningfully participate in the proceedings and give effect to the legislative considerations of the impact on the community of liquor licensing which is a factor to be considered in the related legislation and affect its interests.
It was finally submitted that, whatever decision is made by the Tribunal in the administrative review decision, the Commercial Competitors could bring an appeal pursuant to s 13A of the GLAA. In effect, in furthering of s 36 of the NCAT Act, they should be joined to the substantive application. I reject this proposition, as the operation of s 13A relates to decisions made by the Authority and not decisions made by NCAT.

My consideration

The substantive proceedings are an application for administrative review made under s 13A of the GLAA and s 55(1) of the ADR Act.
Section 13A allows a "relevant person" who is aggrieved by a decision of the Authority to make an application for administrative review. I find ICL is such a person. The Commercial Competitors are not persons so aggrieved by the decision under review.
Only an "interested person" may make an application for an administrative review of an "administratively reviewable decision" under s 55(1) of the ADR Act.
An "interested person" is defined in s 4(1) of the ADR Act as follows: "interested person" means a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision.
An "administratively reviewable decision" is defined in s 7(1) of the ADR Act as follows: (1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
The "administrator" in relation to an administratively reviewable decision is "the person or body that makes (or is taken to have made) the decision under enabling legislation)" (s 8(1) ADR Act). In this application, it is the respondent Authority.
Regulation 27 of the Rules addresses the proper parties to administrative review proceedings [12] above. This could include the Commercial Competitors if they are joined pursuant to s 44 of the NCAT Act. Section 44 is set out at [10] above.
In Fine at [46], the Court said: 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. …
Those principles apply to this matter.
In Fine, the Commissioner of Police sought to be joined to administrative review proceedings in the Tribunal under the Act. The Commissioner of Police had made the application to the Authority, for Mr Fine to be subject to a long-term banning order. The Tribunal at first instance and the appeal panel refused to join the Commissioner for Police. The NSW Court of Appeal reversed the outcome and ordered the Commissioner of Police to be joined.
The Court of Appeal accepted that the power to join a party conferred by s 44(1) of the NCAT Act, was to be read in conformity with the power of removal in s 44(2) of that Act, so that a party who was a "proper or necessary party" ought to be joined in the proceedings. The Court of Appeal also noted that a "proper" party may not also be a "necessary" party, at [38].
The meaning of 'proper' and 'necessary' was further considered.
At [39], the Court said the following about whether a party is necessary: 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. … 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.
The Commercial Competitors involvement with this matter is that they are neighbouring businesses whose commercial interests will be affected by the outcome of this review.
I accept that one of the Commercial Competitors, Woollahra Hotel and Moncur Cellars was required to be notified (cl 21 of the Liquor Regulation 2018) of the application for IBL to obtain the Licence for the purposes of being a "Relevant Person" under s 13A of the GLAA. Jim's Cellars is outside of the specified radius and was not required to be notified on a mandatory basis. However, the operation of s 13A of the GLAA does not assist the Commercial Competitors, because there is a requirement that a Relevant Person, which can only be Woollahra Hotel and Moncur Cellars, to have a legal interest in the outcome of the review, must be aggrieved by the decision of the Authority. It cannot be said that where the Authority has refused IBL's application for the Licence, that it can be aggrieved.
I find that the Commercial Competitors are not necessary parties.
Whether the Commercial Competitors are a proper party to be joined to the application raises different considerations. In Fine, the Court of Appeal considered whether the Commissioner of Police was a proper party at [40] to [41]: …. 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. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene. 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. In the case of the Commissioner, his role in bringing an application under s 116AE is not merely administrative. Nor is it a perfunctory or a convenient device to facilitate the making of a banning order.
The Court examined the statutory "mission" of the New South Wales Police Force, which is "to work with the community to reduce violence, crime and fear": the Police Act 1990, s 6(1). The functions include "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way": s 6(3)(b). That results in the Commissioner of Police, being responsible for the effective and efficient management and control of the functions of the Police Force: s 8(2)(b).
Section 3(2) of the Act provides that, to secure the objects of the Act, each person who exercises functions under the Act is required to have due regard to the need to minimise harm associated with misuse and abuse of liquor. The Court of Appeal found that the functions of the Police Force and the provisions of the Act are complementary. That is reinforced by s 116AE of the Liquor Act 2007, which sets out that the Commissioner of Police is the only party who may bring an application for a long-term banning order. On that basis, the Commissioner of Police was a proper party to be joined in the Tribunal proceedings because the Commissioner for Police was the statutory applicant before the Authority and he had an interest in not only the decision of the Authority, but also in the outcome of any administrative review of that decision: see Fine at [42] - [48].
Further, in Fine the Court of Appeal made the distinction that the Authority determines an application for a banning order as between the Commissioner for Police, as applicant, and the named respondent to the application, and, in that regard, has an adjudicative function to decide on an application between opposing parties: see Fine at [49] - [50].
It remains that s 44 of the NCAT Act confers a discretion upon the Tribunal, and a party whose interests are affected by the decision, could be a proper party. An example provided in Fine is that a Minister may have an interest in being a party because a particular decision affects the operation of a Minister's department or there is a matter of public interest.
I find that the Commercial Competitors interests are affected by the decision under review. They each have an interest in the decision of the Authority and in the outcome of the decision and are a 'proper party' to be joined to the proceedings. This is because of the following.
First, the objects of s 3 of the Act, relevantly include: to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community and in order to secure the objects of the Act. Also, each person who exercises functions under the Act is required to have due regard to the need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, contributes to, and does not detract from, the amenity of community life.
While the authority has included as part of the s 58 material, the fulsome submissions provided to it by the Commercial Competitors, I accept the submission that when hearing the substantive application, the Tribunal could be assisted by having available to it up to date information, testimony and relevant cross examination of witnesses relevant to local community life. I am persuaded that the Commercial Competitors are uniquely placed to provide that information and be in a better position to do so because of their proximity both geographically and in time to the premises. The Authority is not as well placed to provide that information being an absent participant in the daily life of the local community. This goes to the public interest in joining them as a party. The Tribunal would be fully informed with the participation of the Commercial Competitors to further the guiding principle in s 36 of the NCAT Act.
Second, the Tribunal would be assisted during the hearing process with relevant and accurate local community information, which could be tested through the cross-examination of the Commercial Competitors witnesses.
Third, the Commercial Competitors have an interest in the liquor industry and community life within the Woollahra area. They will be directly affected by the decision of the Tribunal and joining them as a party is in my view is consistent with the statutory process set out in s44 (1) and (2) of the Act, which involves the consideration of deciding whether to grant the Licence.
Fourth, the Tribunal must consider when determining the substantive application the community impact in granting the Licence (s 48 of the Act). That includes the views of the local community (including the interests of the Commercial Competitors), the results of any discussions between the applicant and the local community about the issues and concerns that the local community may have in relation to the application and a community impact statement.
Fifth, Woollahra Hotel and Moncur Cellars while they could be a party under s 13A of the GLAA to an administrative review of a decision of the Authority if aggrieved by the decision, cannot be a party to an appeal in the Appeal Panel if they are not a party to the substantive proceeding.
In Auld (at [29]-[31]), it was put by the Secretary he could provide full and up to date submissions. The Tribunal reasoned there was capacity to obtain evidence from experts and information from the Secretary could be given to the authority. The Appellant submits that that is the proper way for a person, even a government agency, to contribute to the Tribunal process. While this is indeed one way for evidence and submissions to be obtained, I do not except that it is the 'only' proper way for participation of a proposed party whose has an interest in the decision and which interest may be affected by the disposition of the proceedings.
I find that the decision in Morrison Design Partnership Pty Limited v North Sydney Municipal Council and Director-General of the Department of Planning can be distinguished in this application, because, the liquor licencing regime is very different to planning. I find that no such limitation should be read into the liquor legislative scheme and s 44 of the NCAT Act. Section 44 of the NCAT is broad, and it will apply to a range of different cases and circumstances.
I reject the proposition that the principles in Fine do not support joining Commercial Competitors in the present circumstances. Allowing the Commercial Competitors to be joined would not render nugatory the regulation administrative review proceedings as found in s 13A of the GLAA. The general power to join a party is in s 44 of the NCAT Act. Despite the operation of a 13A of the GLAA not applying in this proceeding, nonetheless, for the reasons set out above the Commercial Parties are proper parties and should be joined.
I am not satisfied that the s 44 of the NCAT Act is at odds with the liquor licencing legislative scheme. The s 3 objects in the GLAA, provide not only for matters under the gambling and liquor legislation be dealt with in an informal and expeditious manner, but also that the Authority is accessible and responsive to the needs of all persons and bodies who deal with the Authority. That includes, in my view, the Tribunal when exercising its powers of administrative review under s 63 of the ADR Act. Joining the Commercial Competitors allows such access. The resolution of the substantive application is also unlikely to be significantly extended because the Tribunal will ensure the guiding principle in s 36 of the NCAT Act is applied. In any event, should the proceedings become so prolonged or complex, the Tribunal can exercise its discretion to unjoin the Commercial Competitors under s 44 (2) of the NCAT Act.
Despite the Commercial Competitors having filed submissions to the Authority, which are included in the s 58 of the ADR Act material, I accept that the information in those submissions might change or need to be updated. There is no unfairness to ICL when exercising an administrative review right under s 13A GALA, that Commercial Competitors are joined as a party. This is because their interests will be affected by the decision the Tribunal may make.
The Authority does not oppose the Commercial Competitors being joined and does not make any further submission, which in my goes in favour of the Commercial Competitors joinder application.
I find that the Commercial Competitors interests will be affected by the decision or that there is a matter of public interest being the effect on the local community concerning the grant, or refusal of the Licence, which makes them a proper party to be joined to these proceedings.

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Cases Cited (2)

Cited By (2)