Independent Liquor and Gaming Authority v Auld

History of appeal proceedings

1. The appeal was listed for call over on 13 March 2018. The Appeal Panel made directions for the preparation of the hearing of the appeal. A hearing date has been fixed for 11 May 2018.
2. In making directions for hearing, the Appeal Panel continued a stay of the orders of the Tribunal made 30 January 2018. This course was not opposed by the respondent although the respondent did say that the issue of the transfer of the licence had remained unresolved for some time, the decision of the appellant having been made on 23 December 2016.
3. The application for referral of the question of law had been lodged at the time the Notice of Appeal had been lodged and was supported by an affidavit and written submissions. The Appeal Panel subsequently permitted the parties to provide further written submissions. In the case of the appellant, these were dated 15 March 2018. In the case of the respondent, these were provided on 16 March 2018.

Submissions

1. The appellant sought to formulate a number of legal questions which it said should be referred to the Supreme Court for determination. These were: 1. Is there power under s 59 of the Liquor Act to grant a removal application of the kind made by the respondent including with the proposed licence conditions? 2. Are the licence conditions proposed by the respondent in his application for removal inconsistent with the authorisation conferred by the hotel licence pursuant to s 14(1) of the Liquor Act, and if so, is there the power to impose such conditions on the licence? 3. Is the expression "the business or activity to which the proposed licence relates" in s 45(3)(c) of the Liquor Act to be construed as meaning "the business or activity that a person is actually proposing to carry out", or as meaning "the business or activity to which the proposed licence relates", or meaning something else? 4. Is it open to apply the hotel primary purpose test in s 15 of the Liquor Act on the basis that it applies to something less then the entire licensed premises
2. The appellant said the issue is of significant importance to it in dealing with transfer applications, particularly having regard to concerns about the proliferation of packaged liquor outlets. The appellant said that the Supreme Court could make a declaration which would be definitive of the legal issue and bind all parties in these proceedings and in any subsequent proceedings.
3. The Appeal Panel asked the appellant whether, in earlier decisions, it had approved the transfer of licenses on terms that had the effect of converting them from a hotel license to a different form of license defined in s 10 of the Liquor Act, including to a packaged liquor license. The appellant indicated this had in fact occurred in the past.
4. The appellant's submissions in support of the application can be summarised as follows: 1. There is a fundamental question of the proper construction of s 59 of the Liquor Act which is of general importance and goes to the jurisdiction of the appellant, and the Tribunal in reviewing the appellant's decision; 2. There is a public policy benefit in obtaining declaratory relief of the Supreme Court and having the question authoritatively determined; 3. The present appeal is limited to a question of law, there being no dispute on the facts; 4. While it was theoretically open to the appellant to commence judicial review proceedings in respect of the decision of the Tribunal at first instance, "that cause was not a practical one since a powerful discretionary ground for refusing relief in judicial review proceedings is the existence of an alternative remedy (in this case, an appeal to the Appeal Panel)". The appellant referred to the decisions of Saitta Pty Ltd v Commonwealth (2000) FCA 1546 and Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40-41. 5. The appellant relied on a number of authorities including decisions of Deputy President Hennessy LCM in ALZ v WorkCover NSW [2015] NSWCATAD 241 and CTS v NSW Trustee and Guardian [2017] NSWCATAD 119 and a decision of the Civil and Administrative Tribunal of Victoria (VCAT) and said that the applicable principles can be summarised as follows: 1. A referral may be appropriate where there is no existing statement from an appellate court on the particular question of law, where the issues are novel or where there are matters of public interest not previously determined by the Tribunal; 2. The power to refer is not confined to cases where there is no existing authoritative statement; 3. Referral may be appropriate where there is a public policy benefit of having an issue determined authoritatively, including where individuals, beyond the parties to the proceedings, are potentially affected by the determination of the question of law; 4. Referral may be appropriate where an appeal is likely; 5. The question of law must be material to the proceedings; 6. The question of law must be raised in circumstances where there is an "adequate factual matrix" or necessary findings of fact been determined or agreed. In this regard the question of law must not be hypothetical or moot; 7. The Tribunal may take into account other available procedural options, including whether or not proceedings have already reached the internal appeal stage. 8. Referral may also be appropriate where an issue concerns questions that precede the existence of the Tribunal's jurisdiction and that would require the Tribunal to make an authoritative determination of law or fact: Re Zimmax Co Pty Ltd v Collector of Customs, New South Wales (1979) 2 ALD 120. 1. Applying these principles to the present case, the appellant says referral is appropriate because: 1. jurisdictional issues are raised by the proposed questions of law; 2. there is an absence of any existing statement from an appellate court on the questions of law; 3. there is likely to be an increase in the number of removal applications. In this regard the appellant relies on an affidavit of Ms Helen Sims sworn 13 March 2018; 4. as there has been a first instance decision, the Supreme Court will have the benefit of the Tribunal's reasons; and 5. there is no factual contest.
5. The respondent opposed the referral of a question of law.
6. The respondent said that the appellant had available to it the course of seeking judicial review. It did not do so. Further, some of the matters now raised as questions were not raised at first instance before the Tribunal nor did the appellant consider such matters in making its original decision.
7. The respondent adopted the observations of the Administrative Decisions Tribunal in Legal Services Commissioner v Bryden [2009] NSWADT 76 at [22]-[25] and of this tribunal in Milner v Commissioner of Police [2017] NSWCATAD 37 at [15]-[23].
8. The respondent said that the just, quick and cheap resolution of these proceedings is the hearing of the appeal by the Appeal Panel on 11 May 2018. The respondent submits this course reduces the prospect of prejudice to him, particularly in light of the stay order which presently has been made. This approach is consistent with the legislative intention to confer jurisdiction on this Tribunal to resolve issues relating to liquor and gaming matters. The inclusion of the President of the Tribunal, a judge of the Supreme Court, as a Member of the Appeal Panel, makes it inappropriate in all the circumstances for an order for referral to be made.

Consideration

1. The issue for determination is whether an order should be made to refer a question of law to the Supreme Court of New South Wales under s 54 of the NCAT Act. Section 54(1) provides: The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
2. A question may only be referred with the consent in writing of the President of the Tribunal: s 54(2).
3. A decision to refer a question of law to the Supreme Court involves the exercise of a discretion by the Tribunal, in this case constituted as the Appeal Panel.
4. The substantial question of law for which referral is sought is whether, on the proper construction of the Liquor Act, a particular type of license specified in s 10 of the Liquor Act can be converted to another type of license pursuant to a removal application under s 59 of the Liquor Act by change of conditions.
5. There are two matters which should first be noted before deciding whether an order to refer a question of law should be made.
6. First, the factors identified by the appellant as being relevant in the present case to the exercise of a discretion as to whether to refer a question of law under s 54 of the NCAT Act can be readily accepted. However, it is unwise to universally define the factors which might be relevant to the proper exercise of a discretion under s 54.
7. Secondly, in my opinion, it is incorrect to suggest there is a "jurisdictional" question raised by the propose questions of law. There is no issue that the Tribunal at first instance had jurisdiction to review the decision made by the appellant. No suggestion was made by the appellant to the contrary. There is also no question the Appeal Panel has jurisdiction to hear this appeal. Rather, the question is whether the appellant, as the original decision maker, or the Tribunal on review, has power to grant a removal application under s 59 of the Liquor Act on terms that has the effect of converting a hotel licence to a package liquor license.
8. It is unnecessary to conduct any significant analysis of the provisions of the Liquor Act to which the appellant identified into which we have referred above.
9. The following matters are in favour of referral: 1. a determination by the Supreme Court may have general application in respect of applications made under s 59 of the Liquor Act; 2. a determination by the Supreme Court may truncate the legal process by avoiding the possibility of an appeal after a decision is made by the Appeal Panel; 3. due to the potential increase in removal applications, future applicants will benefit from an authoritative determination of the legal questions by the Supreme Court.
10. Factors against a referral include the following: 1. The questions as formulated, particularly question 3, are imprecise, referring to the possibility a construction of the Liquor Act which has not been formulated; 2. Insofar as the orders made by the Tribunal at first instance were, upon the proper construction of the Liquor Act, in excess of the powers granted the appellant or the Tribunal on review, the appellant had available to it the option of seeking judicial review or lodging an appeal and raising a question of law. It elected for the second option. Having regard to s 54(3) of the NCAT Act (which permits the Supreme Court to decline to exercise jurisdiction) and having regard to s 34 of the NCAT Act (which permits but does not require the Supreme Court to refuse to conduct judicial review proceedings if the Tribunal has power to determine a matter by way of internal appeal) the Appeal Panel should give effect to the guiding principle found in s 36 of the NCAT Act and hear the appeal on 11 May 2018; 3. The functions assigned to the Appeal Panel and the powers given to it under the NCAT Act expressly authorise it to deal with issues such as those in the present appeal. 4. The respondent presently has a decision of the Tribunal in his favour although that decision is presently stayed. A delay in resolution of these proceedings has the effect of depriving him of any lawful entitlement to use the licence for the purpose of selling package liquor at the ALDI Supermarket; 5. The appellant has raised the issue of power despite having itself apparently having made decisions to the contrary. While unclear from the submissions, it would seem the change of position in part arises from a concern about the increased numbers of applications to remove hotel licences to premises for the purpose of selling packaged liquor only and a potential change in policy: see Ms Sims affidavit at [11]; 6. The constitution of the Appeal Panel will, at present, include the President of the Tribunal, a judge of the Supreme Court. Consequently, any appeal from a decision of the Appeal Panel so constituted will be to the Court of Appeal of the Supreme Court of New South Wales.
11. In my opinion, those factors against referral, when coupled with the possibility that the Supreme Court might decline to deal with any question referred, count against an order being made under s 54 of the NCAT Act.
12. Further, the Appeal Panel is not satisfied that a referral of a question of law will be likely to result in the just, quick and cheap resolution of the real issues in dispute. Having regard to the manner in which these applications have previously been dealt with by the appellant as the original decision maker, there is no general uncertainty requiring urgent clarification by a superior court.
13. For these reasons the application to refer a question of law to the Supreme Court of New South Wales is refused.

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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: 27 March 2018