Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd

NCAT Appeal Panel|2021-03-26

Overview

Green Soul Trader (the Store) is owned by D & D Natural Health Pty Ltd, the respondent to these proceedings. The Store sells natural and organic products in premises on the first floor of the Bridgepoint Shopping Centre in Mosman, NSW. The Store wants to sell organic wine but the Independent Liquor and Gaming Authority (the Authority) has refused their application for a packaged liquor licence. The Authority decided that it could not grant the Store a packaged liquor licence because it was a "mixed business shop": Liquor Act 2007 (NSW), s 31(1). The Store applied to the Tribunal for an administrative review of that decision. On review, the Tribunal set aside that decision: D & D Natural Health Pty Ltd v Independent Liquor and Gaming Authority [2020] NSWCATAD 307. The Tribunal found that the Store was not a "mixed business shop" within the meaning of that expression in s 31(1) of the Liquor Act.
The issue on appeal is whether the Tribunal made a legal mistake that justifies setting aside the decision: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b). In our view, the Tribunal's decision was not affected by legal error. For the reasons it gave, the correct and preferable decision was to set aside the Authority's decision to refuse the application.

Prohibition on granting packaged liquor licence to a "mixed business shop"

Regulation of packaged liquor licences in the Liquor Act

It is an offence to sell liquor without a licence: Liquor Act, s 7. Part 3 of the Liquor Act regulates liquor licences which includes packaged liquor licences, hotel licences, club licences, and "on premises" licences which are generally for cafes and restaurants. The long title of the Liquor Act is: An Act to regulate and control the sale and supply of liquor and the use of premises on which liquor is sold or supplied; to repeal the Liquor Act 1982; and for other purposes.
The objects of the Act are set out in s 3. They 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". Among other things, a person exercising functions under the Liquor Act "is required to have due regard to the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour)": Liquor Act, s 3(2)(a). We set out the objects in full below: 3 Objects of Act (1) The objects of this Act are as follows - (a) 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, (b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following - (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) 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, (d) the need to support employment and other opportunities in the - (i) live music industry, and (ii) arts, tourism, community and cultural sectors.
A "packaged liquor licence" authorises a licensee to sell liquor in sealed containers for take away consumption: Liquor Act, s 29(1). Division 5 of Part 3 of the Liquor Act (ss 29-31) regulates packaged liquor licences. Among other things, s 29 regulates the times during which a licensee may trade. Section 30 applies to businesses such as supermarkets, whose primary purpose is not selling packaged liquor. Those businesses may only sell liquor in an area that is adequately separated from the other activities.
Before granting a packaged liquor licence for premises which are not regulated by s 31 of the Liquor Act, the Authority must assess the impact that granting the licence will have on the local community. The Authority must be satisfied that "the overall social impact of the licence . . . being granted will not be detrimental to the well-being of the local or broader community": Liquor Act, s 48(5).

Orders

The Tribunal set aside the Authority's decision. Rather than substituting a decision that a packaged liquor licence be granted, the Tribunal remitted the matter for reconsideration. The reason for doing so was that the Tribunal found that the Store had not strictly complied with a procedural requirement in relation to the community consultation process outlined in s 48 of the Liquor Act. The Tribunal made the order in the following terms: The decision made by the Independent Liquor and Gaming Authority to refuse to grant a packaged liquor licence to D & D Natural Health Pty Ltd is set aside and remitted to the Authority for reconsideration in accordance with the Tribunal's decision that the subject premises is not a "general store" within the meaning of s 31 of the Liquor Act 2007 (NSW).

Features of the Store

At [4] - [10] the Tribunal provided an overview of the Store's features including its location (on the first floor of a neighbourhood shopping complex in Mosman); trading hours (8.30 am - 6 pm, 7 days a week); the terms of its lease (sale of natural and organic products); and the target market (Lifestyles of Health and Sustainability - LOHAS).
As to the range and type of products sold, the Tribunal summarised the Authority's submission at [19]: In concluding that the Store was a mixed business shop, the Authority took into account its product inventory which listed approximately 5,500 items including pantry items (such as chocolate, tea, jam and flour), cleaning products, baby food, nappies, health and beauty items, homewares, apparel, pet supplies and refrigerated and frozen food products. The Authority characterised those items as being of a "day-to-day" or "household" nature: Reasons at [15].
The Store's product range reflects certain values including minimising harm to the earth and personal health and well-being. The Store does not stock certain items, such as "tobacco and cigarettes, takeaway food, bread, cakes and baked products, milk (except almond, oat and coconut), 'mainstream' soft drinks such as Coke, Schweppes, dairy chocolate, and refined sugar", because they do not reflect these values. Nor do they stock "SIM cards, transport cards, newspapers and magazines": D & D Natural Health Pty Ltd v Independent Liquor and Gaming Authority [2020] NSWCATAD 307 at [8] and [9].

The issues

The Tribunal summarised the differences between the parties' cases at [25] - [28]. Essentially, the Authority submitted that the term "mixed business shop" is a shop which sells a mix of categories of miscellaneous day-to-day household products - both food products and non-edible household and personal products. The Authority contended that the hallmark of a mixed business shop is that it offers a mix of categories of goods. A shop selling only one or two categories of goods but a wide range of products within those categories, for example, a delicatessen, bakery or health food shop, is not a mixed business shop.
The Tribunal contrasted the Authority's submission with the Store's characterisation of a mixed business at [28]: On the other hand, Natural Health contends that a mixed business shop is closely analogous to the other types of shops listed in the definitions of general store and shares many common characteristics with those types of stores: generally being small, being located in roadside locations, trading long hours and selling a modest array of groceries and other goods, citing in support, Seldan Pty Limited v Liquor Licensing Commission (unreported, Supreme Court of Victoria, 15 May 1990) ("Seldan"). In addition, Natural Health asserts that generally those shops would sell food prepared on the premises such as sandwiches or hamburgers, and in addition, transport cards, phone cards, newspapers and magazines. It contends that "organic speciality shop" is a more apt description of the Store.

Summary of Tribunal's reasoning

When addressing the significance of the term "general store" in s 31 of the Liquor Act, the Tribunal found at [46]-[47], that that term should not be taken into account in construing the term "mixed business shop": Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc 1994) 181 CLR 404 at 419. The Tribunal went on to consider the Macquarie Dictionary and the Oxford Dictionary definitions of the terms "mixed business shop", "milk bar", "convenience store" and "corner shop". The Tribunal found at [94], that these terms are not interchangeable.
The Authority urged the Tribunal to adopt the reasoning in a 2018 decision of the Tribunal - MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260. In that case, the Tribunal applied the definition of "mixed business shop" in the Macquarie Dictionary. That definition is "a small grocery shop, which also sells a selection of other merchandise". The Oxford Dictionary defines "mixed business shop" as - "Australian a shop selling a wide variety of goods, often incorporating a newsagent, delicatessen, etc., and sometimes also a petrol station, a convenience store".
At [49], the Tribunal pointed out that while it is permissible to consult dictionaries to determine the ordinary meaning of a word, ultimately it is a matter for the Tribunal to determine that meaning. At [99]-[102], the Tribunal gave four reasons for rejecting the Authority's submission that it should follow MJ Trading and apply the Macquarie Dictionary definition: First, the text of the statutory definition of general store tends against that meaning. If the Authority is correct, the second and third limbs of that definition - that the premises be small (a retail floor area of not more than 240 square metres) and be used primarily for the retail sale of groceries or associated small items - would have little work to do. This difficulty is not cured by the Authority's contention that the hallmark of a mixed business shop is a mix of product categories being offered for sale. It is difficult to imagine a "small grocery shop" that would not offer a mix of product categories. Second, if by the term "mixed business shop" the legislature meant in effect "small grocery shop", it raises the question why it did not use that commonly understood term. Third, for the reasons discussed below, the Macquarie Dictionary does not accord with my understanding of the ordinary meaning of the term. Fourth, with respect to the argument that the decision in MJ Trading is "not plainly wrong" and should be followed, it appears from the reasons for that decision, specifically the decision to adopt the definition of mixed business shop given by the Macquarie Dictionary, that neither party took issue with that approach. Nor does it appear that the parties brought to the attention of the Tribunal the extensive material, including legislative history, I have had the advantage of considering. The decision could not be characterised as "seriously considered dicta".
The Tribunal concluded that, while not bound by either the Macquarie or the Oxford Dictionary definitions, the Oxford Dictionary definition came closer to the ordinary meaning of the term "mixed business shop". The Tribunal's conclusions about the various dictionary definitions of "mixed business shop" appear at [103]-[104]: That the term "mixed business shop" has entered the common language of modern Australia is evidenced by the fact that it is now contained in two authoritative dictionaries. While broadly similar, the meanings given by the Macquarie and Oxford dictionaries are not identical. While I am not bound to adopt either meaning, nonetheless, in my view that offered by the Oxford Dictionary comes closer to my understanding of the ordinary meaning of the term "mixed business shop". In contrast to the Macquarie Dictionary, it suggests something more than a small grocery store which also sells a selection of other merchandise. Of particular significance, in my view, is the reference in the Oxford Dictionary to "often incorporating a newsagent, delicatessen, etc., and sometimes also a petrol station; a convenience store". While, as the Authority points out, the use of the word "often" indicates that to incorporate a newsagent, delicatessen etc., is not an essential element of a mixed business shop, it recognises that this will often be the case. In my view, this more closely accords with the ordinary meaning of the term "mixed business shop". That is, a shop which in addition to selling groceries and a selection of other merchandise incorporates some other type of business or activity such as a newsagent, delicatessen, post office, small café, take-away food outlet.
At [105], the Tribunal regarded various Victorian decisions as being consistent with its conclusion as to the ordinary meaning of "mixed business shop". In Seldan Pty Limited v Liquor Licensing Commission (unreported, Supreme Court of Victoria, 15 May 1990) ("Seldan") the Supreme Court of Victoria was interpreting the term "convenience store". Under the relevant statutory scheme in force at the time, the Victorian Liquor Control Commission was prohibited from granting a liquor licence in respect of "premises that in the opinion of the Commission are used primarily as a milk bar, convenience store or mixed business": Liquor Control Act 1987 (Vic), s 60(1). Although not interpreting "mixed business", Nathan J made the point at p 5-6 that, like the term "milk bar", the term "mixed business" is an antipodean phenomenon. His Honour went on: A mixed business is commonly taken to mean a small scale retail operation selling a variety of readily consumable products. They are referred to in the United States as Mamma and Poppa Stores. . . .Scale of operation, the range of products sold, and in some cases location are all indicia of premises which would be commonly accepted as being mixed businesses or milk bars.
The Tribunal also referred to three other Victorian cases, two decided by VCAT (Victorian Civil and Administrative Tribunal) and one decided by the Victorian Commission for Gambling and Liquor Regulation.
In the first VCAT decision, Jaza v DLL [2000] VCAT 1651, the Victorian Tribunal was considering the meaning of "mixed business" in circumstances where the regulator was prohibited from granting a packaged liquor licence (except in particular circumstances) in respect of "premises that, in the opinion of the Director, are used primarily as a milk bar, convenience store or mixed business": Liquor Control Reform Act 1998 (Vic), The premises sold grocery items such as milk and bread, take away food, fresh fruit and vegetables, ice-cream and tobacco products. In addition, it operated a postal agency, news agency and video hire. VCAT held that even if the premises were expanded to include a supermarket area, it would still be primarily a mixed business or convenience store. At [28] VCAT adopted the following "conventional" description of a 'mixed business" from a decision of the Victorian Liquor Licensing Commission in another case (Decision 94 Sherwood Investments Pty ltd, Pyramid Hill, 3 August 1989): One of the Directors of the store described the business as "basically mixed" in evidence. I agree with that description in the sense that more than one form of business is carried on in the store, and through the storage areas and yard around the store. However I do not regard the business, or the primary purpose of the business as being a mixed business in the conventional sense of those words as they apply to a corner store or milk bar which commonly provides products as milk, ice cream, drinks, confectionary, a limited range of groceries, sometimes a news sub-agency, video tapes for hire, tattslotto, a postal agency or a banking agency. I believe that it is in this latter conventional sense that the words "mixed business" are used ….
At [29] VCAT distinguished the store under consideration in Jaza v DLL from a small supermarket: The present store has a postal agency (run as a separate business), take away food, news agency and magazine items, cards, ice creams, milk and bread, soft drinks, video hire and a limited range of groceries. It is quite different in style from the business at 830 Main Road which is a small supermarket with what appears to be a large range of groceries even though it sells take away food.
In the second VCAT decision referred to by the Tribunal, Jones the Grocer Store Pty Ltd v Director of Liquor Licensing (Occupational and Business Regulation) [2009] VCAT 899 ("Jones the Grocer"), VCAT found that the applicant for the licence was not a suitable person to hold a licence. In obiter remarks, VCAT also dealt with another ground for refusing the licence. The regulator maintained that "the premises had all the characteristics of a mixed business being a delicatessen, grocery store, cafe and wine bar". VCAT made the following observation in response to that submission at [22]: . . . it is difficult to see how these premises could be considered a mixed business or a convenience store. They are clearly quite a unique type of premises. They are not something that is found on each street corner. They do not sell the type of goods that one would expect of mixed business or convenience store.
In the decision of the Victorian Commission for Gambling and Liquor Regulation (Application by Sonia Martinez t/as Wattle Park Green Grocer premises (Liquor - internal review) [2018] VCGLR 8 (26 March 2018)) the Commission decided that an "organic health food store" was not used primarily as "mixed business" or "convenience store". The Tribunal below summarised the Commission's reasoning at [64] of the decision: The Commission considered relevant that the store's operating hours were generally between 9.00 am and 6.00pm and not those of a "typical mixed business or convenience store"; the store did not sell products "typically supplied by a mixed business or convenience store, such as newspapers, magazines or hot food"; while some of the products sold are similar to those sold in a mixed business or convenience store, such as milk and bread, the half of the products sold are only available in the organic variety and the focus of the produce is on "gluten-free, dairy-free, gut health diets and low FODMAP diets": [50]-[52]. The Commission concluded at [54] that the nature and purpose of the applicant's business did not accord with the meaning of "mixed business" or "convenience store ".
The Tribunal outlined the legislative history of s 31 of the Liquor Act at [75]-[83] and concluded at [95] that the mischief s 31 was intended to address is not limited to drink driving. The Tribunal summarised its overall conclusion at [109]-[110]: 109 For the reasons given above, I am not persuaded that a small grocery store which sells a mix of products fully captures the ordinary meaning of the term "mixed business shop" used in s 31. The definition offered by the Oxford Dictionary offers a better fit - that is, a shop which in addition to selling groceries and a selection of other merchandise, incorporates some other type of business or activity, such as a newsagent, delicatessen, post office, small café, take away food outlet. Intangible features, such as those nominated by Nathan J in Seldan at [6]: "scale, product range, locality and ambience of premises", may also assistance in determining whether a particular store can be categorised as a mixed business shop. 110 While undoubtedly the Store sells a wide range of goods for domestic use, of itself this does not make it a mixed business shop. In my view, the fact that the store does not incorporate some other type of business such as those listed at [104] above, or offer customers some other form of service tends against a conclusion that the Store is a mixed business shop. I am not persuaded that the Store falls within the definition of general store.
The reference in [110] to businesses such as those listed in [104] is a reference to a business which "in addition to selling groceries and selection of other merchandise incorporates some other type of business or activity such as a newsagent, delicatessen, post office, small cafe, take-away food outlet."

Grounds of appeal

The three grounds of appeal set out in the Notice of Appeal are: 1. The Tribunal erred in law in finding at [109] that the term "mixed business shop" in s 31(3) of the Liquor Act 2007 (NSW) should be construed to mean "a shop which in addition to selling groceries and a selection of other merchandise, incorporates some other type of business or activity, such as a newsagent, delicatessen, post office, small cafe, take away food outlet" and ought instead to have construed it to mean: 1. "a small grocery story which sells a mix of products"; or, alternatively 2. "a shop selling a wide variety of goods, often incorporating a newsagent, delicatessen, etc., and sometimes also a petrol station". 1. Further or alternatively, the Tribunal erred in law: 1. at [46]-[47], in finding that the label "general store" was not to be taken into account in construing the term "mixed business shop"; 2. at [60]-[67], in following Victorian decisions concerning the meaning of "mixed business" on the basis that they provided insight into the "ordinary meaning" of that term; 3. at [99], in finding that the statutory context, and particularly the words "that has a retail floor area of not more than 240 square metres and that is used primarily for the retail sale of groceries or associated small items", favoured a narrower construction of "mixed business shop" rather than a wider one; and/or 4. at [102], in failing to follow the definition of "mixed business shop" adopted by the Tribunal in MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260. 1. The Tribunal erred in finding at [110] that the subject premises was not within the definition of "general store" in s 31(3) of the Liquor Act 2007 (NSW) because it did "not incorporate some other type of business such as [a newsagent, delicatessen, etc.], or offer customers some other form of service", and ought instead to have found that it was within that definition by virtue of being a "mixed business shop" and otherwise meeting the relevant criterion.
The Authority sought orders setting aside the Tribunal's decision and substituting a decision to affirm its decision to refuse to grant the Store a packaged liquor licence.
In their Reply, the Store contended that the ordinary meaning of a term such as "mixed business shop" is a question of fact, not a question of law. The Authority can only appeal, as of right, on a question of law: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b). For the following reasons, we accept that each of the grounds of appeal identifies a question of law.
In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395, the High Court addressed several propositions derived from the Full Federal Court's decision in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. One of those propositions was that, "[T]he ordinary meaning of a word or its non-legal technical meaning is a question of fact." The High Court cast some doubt on that proposition and authors Aronson, Groves and Weeks believe that there is no longer any point to that rule: Aronson, Groves & Weeks, Judicial Review of Administrative Action and Government Liability (3rd ed, 2017, Thomson Reuters) at 219. In any case, as the authors point out at 219, several decisions have watered down that proposition. In particular, it has been held that 'the misconstruction of an ordinary English word is an error of law" and "misunderstanding an ordinary meaning is an error of law": Industry Research Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 at 577; Universal Magazines Pty Ltd v Comptroller-General of Customs (1990) 21 ALD 502 cited in Judicial Review of Administrative Action and Government Liability at 219.

Ordinary meaning of "mixed business shop" - grounds 1 and 3

Ground 1 is that the Tribunal erred at [104] in construing the term "mixed business shop" to mean "a shop which in addition to selling groceries and a selection of other merchandise, incorporates some other type of business or activity, such as a newsagent, delicatessen, post office, small cafe, take away food outlet". Ground 3 picks up the Tribunal's finding to similar effect at [110]. This definition is based partly on the definition in the Oxford Dictionary which defines a mixed business shop as: "Australian a shop selling a wide variety of goods, often incorporating a newsagent, delicatessen, etc., and sometimes also a petrol station; a convenience store" (Emphasis added). The Tribunal also included examples of other types of business, namely "post office, small cafe, take away food outlet" which were mentioned in various Victorian decisions.
According to the Authority, the Tribunal should have construed that term to mean either "a small grocery story which sells a mix of products" or adopted the Oxford Dictionary definition word for word including the word "often".
As to the first option, which is also reflected in Ground 2(c), the Authority submitted that the context favours a broad construction of the term "mixed business shop". The Tribunal was said to have erred by finding that the words "that has a retail floor area of not more than 240 square metres and that is used primarily for the retail sale of groceries or associated small items" in s 31(1)(a) and (b) favoured a narrow construction of "mixed business shop". The Tribunal responded to that submission at [99] when giving reasons for rejecting the Authority's submission that the wider Macquarie Dictionary definition of "mixed business shop" should be adopted: First, the text of the statutory definition of general store tends against that meaning. If the Authority is correct, the second and third limbs of that definition - that the premises be small (a retail floor area of not more than 240 square metres) and be used primarily for the retail sale of groceries or associated small items - would have little work to do. This difficulty is not cured by the Authority's contention that the hallmark of a mixed business shop is a mix of product categories being offered for sale. It is difficult to imagine a "small grocery shop" that would not offer a mix of product categories.
In our view, the Tribunal was correct to reject the Authority's broad construction of the term "mixed business shop". We agree that the area requirement and the usage requirement would have little work to do if a broad construction was adopted. The Authority's submission to the Tribunal summarised at [25] was that the hallmark of a mixed business shop is that it offers a mix of categories of goods. We also agree with the Tribunal's finding at [104] that the ordinary meaning of a "mixed business shop" is something more than a small grocery store which sells a mix of products. As the Tribunal impliedly found, the term "mixed business" refers to premises where the types of businesses carried on were mixed, not to premises selling a mix of products.
The second option put forward by the Authority was that the Tribunal erred by not adopting, word for word, the Oxford Dictionary definition. According to the Authority, the Tribunal impermissibly supplemented the Oxford dictionary definition by requiring that a shop selling groceries and associated small items, also conducts another type of business to come within the meaning of "mixed business shop". That construction was said to be unnecessarily restrictive or narrow.
The Tribunal responded to a similar submission at [104]: While, as the Authority points out, the use of the word "often" indicates that to incorporate a newsagent, delicatessen etc., is not an essential element of a mixed business shop, it recognises that this will often be the case. In my view, this more closely accords with the ordinary meaning of the term "mixed business shop". That is, a shop which in addition to selling groceries and a selection of other merchandise incorporates some other type of business or activity such as a newsagent, delicatessen, post office, small café, take-away food outlet.
The term "mixed business shop" is not defined in the Liquor Act. It is not a technical term and there is nothing in the statutory scheme which would suggest that it should be given any meaning other than the ordinary meaning which it now has in Australia. A dictionary definition may be used as a guide when determining its ordinary meaning: Pearce and Geddes, Statutory Interpretation in Australia, (9th ed 2019 LexisNexis) at 3.33. There is no error in failing to adopt a dictionary definition word for word if that definition does not accord with the ordinary meaning of the term in context.
In New South Wales Associated Blue-Metal Quarries ltd v Federal Commissioner of Taxation (1957) 94 CLR 509, the High Court was determining whether a company extracting blue metal was engaged in "mining operations" on a "mining property". Although a dictionary definition defined a "quarry" as a "stone mine", Kitto J thought it an "inapt use of language to apply the term "mining operations" to "the getting of stone such as blue-metal by open excavation." His Honour considered that "the conclusion must depend on one's own understanding of the sense in which words are currently used".
The Tribunal referred to dictionary definitions and to observations of Victorian decision makers but ultimately formulated a definition which accorded with the Tribunal's understanding of the sense in which the term "mixed business shop" is currently used. The Tribunal found at [94], that the terms "mixed business shop", "milk bar", "convenience store" and "corner shop' are not interchangeable. While they share some common features, a "mixed business shop" has features which distinguish it from the other three kinds of shop. The Tribunal did not make an error by finding, in effect, that one of those distinguishing features is that it incorporates some other type of business or activity such as those listed. The Tribunal has not misconstrued or misunderstood the ordinary meaning of the term "mixed business shop".

Following Victorian decisions - Ground 2(b)

Ground 2(b) was that the Tribunal erred by following Victorian decisions concerning the meaning of "mixed business" on the basis that they provided insight into the "ordinary meaning" of that term. The Authority's primary submission to the Tribunal was that it would be an error to treat the Victorian decisions as instructive or even persuasive. Alternatively, the Authority submitted that those decisions support the Authority's position as to the meaning of "mixed business shop".
After expressing its conclusion as to the ordinary meaning of "mixed business shop" the Tribunal observed that: That conclusion is consistent with a common observation made throughout the Victorian decisions cited by Natural Health: for example, "sometimes a news sub-agency, video tapes for hire, Tattslotto, a postal agency or a banking agency (Sherwood Investments); "all the characteristics of a mixed business being a delicatessen, grocery store, café and wine bar" (Jones the Grocer).
The Tribunal selected various examples of business activities which accorded with its understanding of the sense in which the term is currently used. A "news sub-agency, video tapes for hire, tattslotto, a postal agency or a banking agency" were mentioned in Sherwood Investments. A "delicatessen, grocery store, cafe and wine bar" were mentioned in Jones the Grocer. The Tribunal did not include all these examples. Videos are no longer available for hire in mixed business shops and wine bars are self-evidently not the kind of business that would be incorporated in a mixed business shop. (That example may have been mentioned in Jones the Grocer because the application was for both a packaged liquor licence and a general licence to operate a wine bar.) By being selective, and not exhaustive, in the examples it gave, the Tribunal was reflecting the sense in which the term "mixed business shop" is currently used.
At [60] the Tribunal came to the following conclusion about the relevance of the Victorian decisions: In my view, because the relevant terms used in the Victorian and NSW legislation are general Australian expressions, the Victorian decisions may provide some insight about the ordinary meaning of those terms, notwithstanding the different regulatory context, and the attendant need to exercise caution.
That observation is uncontroversial. The Tribunal did not "follow" the Victorian decisions, it merely noted that the conclusion it had reached as to the ordinary meaning of the term was consistent with observations made in those decisions. The term "mixed business shop" is an Australian expression. That finding is supported by the use of the word "Australian" as a regional label in the Oxford Dictionary definition. The Tribunal did not err by including within the ordinary meaning of the term, examples of other types of business or activity mentioned in Victorian decisions.
Contrary to the Authority's submission, the Tribunal did not adopt a factual finding about the meaning of "mixed business" made by the Supreme Court in Seldan. Rather, at [109], the Tribunal found that intangible features "such as those nominated by Nathan J in Seldan at [6] ". . . may also assist in determining whether a particular store is a mixed business shop". (Emphasis added.) There was no error in that approach.

The label 'general store' - Ground 2(a)

When addressing the text itself - in particular the definition of "general store" in s 31 of the Liquor Act, the Tribunal found at [46]-[47], that the label "general store" was not to be taken into account in construing the term "mixed business shop". Ground of appeal 2(a) submitted that this conclusion was in error.
The Tribunal followed the High Court's decision that the term to be defined does not colour the meaning to be given to the definition which follows it: Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 419; [1994] HCA 54 ("Shin Kobe Maru"). Applying that principle to this case, the Tribunal concluded that the meaning of "general store" does not colour the meaning of "mixed business shop".
The Authority's submission relied on observations by Leeming JA in Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 at [127] quoted by the Tribunal at [45]. However, as the Tribunal stated at [46], the Court of Appeal decided not resolve the issue given the absence of full argument. The Tribunal was correct to conclude, in accordance with High Court authority, that the term to be defined does not colour the meaning to be given to the definition which follows it.
Alternatively, the Authority submitted that Nathan J was correct in the definition given to "mixed business" in Seldan Pty Ltd v Liquor Licensing Commission and Wonga Park village Supermarket Pty Ltd (unreported, Supreme Court of Victoria, 15 May 1990). As this point was not included in the grounds of appeal, there is no need to address it.

Failure to follow MJ Trading - Ground 2(d)

The Authority submitted that the Tribunal made a legal error by failing to follow the Macquarie dictionary definition of "mixed business shop" adopted by the Tribunal in MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260.
The Tribunal is not bound by the doctrine of precedent to follow earlier decisions. However, in the context of the legislation governing one of the predecessor Tribunal's to NCAT - the Administrative Decisions Tribunal - it was said that the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or a Deputy President, unless they are clearly wrong: Rittau v Commissioner of Police [2000] NSWADT 186 at [60]. We agree, however no such qualification has been expressed in relation to first instance decisions by Tribunal Members other than the President or a Deputy President. It follows that the Tribunal did not make a legal error by failing to follow the decision in MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260.
In any case, as the Tribunal pointed out at [102], "neither party took issue" with the Tribunal adopting the Macquarie Dictionary definition in that case. The Tribunal also noted that the parties in MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260 did not rely on the extensive material including the legislative history which the present Tribunal had had the advantage of considering.

Context including legislative history

We have not addressed the purpose of the legislation in any detail. Both parties made submissions on that subject but none of the grounds of appeal directly relate to that topic. As we are not conducting a merits review of the Tribunal's decision, there is no need to respond to those submissions.

Costs

There was no application for costs. If either party wishes to apply for costs, they should do so within 28 days of the date of these reasons.

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: 09 June 2021

Liquor Control Act 1987(Vic)

At a glance

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Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (11)