Independent Liquor & Gaming Authority v Hurlstone Park Operations Pty Ltd

Appellant's materials before the Appeal Panel

1. The appellant provided the following materials to the Appeal Panel.

Notice of Appeal dated 19 August 2024

1. The Authority states its grounds of appeal as follows: 1. The Tribunal erred in law in failing to dismiss Mr Orr's application to be joined to proceeding number 2023/00035087 filed on 3 October 2023 and further erred in law in failing to dismiss the separate proceeding brought by Mr Orr (2023/00313081) because: (a) Mr Orr only became a licensee on 18 June 2024, shortly before the interlocutory hearing before Senior Member J Sullivan, but months after the filing of the application for review in the Tribunal (the original application for review was filed on 2 February 2023). In such circumstances, the senior member erroneously concluded that Mr Orr was aggrieved stating that "[Mr Orr] as the current licensee, would be directly affected by the decision of the Tribunal", but this overlooks the fact that eligibility to bring a review application depended upon the Tribunal having jurisdiction to give Mr Orr an ETA at the time of the Authority's decision. As Mr Orr was no longer the licensee at the time of the Authority's decision, the Authority did not have Accordingly, the matter should have been dismissed. The fact that Mr Orr, at a much later date became the licensee again, did not alter his status at the time of the Authority's decision, which is the relevant time for determining the entitlement to pursue an application to the Tribunal. (b) The Tribunal erroneously dealt with the matter on the basis that there was not a lack of "utility" (Decision, at [35]; see also [40] where the Tribunal was equivocal about the utility of the separate proceedings), and, thereby failed to provide any consideration of the import of section 13A of the Gaming and Liquor Administration Act 2007 in the reasons for decision. 2. The Tribunal erred in law in failing to dismiss the first set of proceedings filed by Hurlstone Park Hotel Operations Pty Ltd (Hurlstone Park) (case number 2023/35087) and the subsequent set of proceedings filed by Hurlstone Park (2023/00313081) as Hurlstone Park was not the original applicant before the Authority and the Authority's decision did not concern Hurlstone Park. See Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC240 at [1601-[162]. 3. The Tribunal erred in law in failing to dismiss the separate proceedings brought by Messrs Stramandinoli and Arnaout (Decision at [40]). This was despite Messrs Stramandinoli and Arnaout conceding that their joinder applications (which were ultimately refused) were not being pressed. In relation to these applicants, the senior member concluded that she was "not sure of the utility" in their separate proceedings. Given this preliminary indication, and, given no basis was identified upon which they could be granted any relief, their applications ought to have been dismissed.
2. The Authority then states that this is a matter where it is appropriate to grant leave to appeal because: 1. the appeal involves a question of public importance and matters of administration or policy which have general application; and the answer from the Appeal Panel will provide guidance to the Authority on the proper approach where there is a change of licensee at hotel premises following an application for an ETA before the Authority and before any application for administrative review is filed in the Tribunal; 2. the appeal concerns a narrow and confined legal issue of general public importance; that is, the construction and application of s 13A of the Gaming and Liquor Administration Act 2007 (NSW) (LGA Act) in this context; 3. there are no disputed facts; 4. if the appeal is determined favourably to the Authority it will have the effect of avoiding the need for any further substantive hearing of the underlying proceedings.

Reply to Appeal

1. A Reply to Appeal was filed by HPHO Pty Ltd on 10 September 2024.
2. We were told at the appeal hearing that Mr Orr also adopted the contents of the Reply to Appeal.
3. HPHO Pty Ltd there states: No error of law was committed. It is not necessary for a person to be the licensee at the time that the Authority makes its decision in order to have standing to bring a merits review application to the Tribunal. Consistent with the appellant's own previous submissions, Mr Orr was the relevant "applicant" in respect of the underlying application subject of review and the only person to whom the benefit of that application could be granted by the respondent, and in turn, the Tribunal on review.
4. As to leave to appeal, HPHO Pty Ltd states: While the matter involves an issue of principle and question of public importance, the conduct of the appellant in delaying the raising of a jurisdictional issue until just days prior to the hearing of the substantive matter, and subsequent aggressive and uncooperative position taken in respect of the respondent's applications for joinder (made to practically and efficiently resolve any potential jurisdictional issues) as well as seeking summary dismissal of the respondent's substantive claim, are strong factors in favour of refusing leave. The substantive matter was listed for hearing on 4 and 5 October 2023, all evidence having been served in preparation for the hearing by 8 September 2023. The appellant did not raise any jurisdictional question (which is the core matter subject of its current appeal) until it filed its submissions on 29 September 2023, which was less than 3 business days before the hearing. Given that the application subject of decision under review in the substantive proceedings was lodged as long ago as 18 August 2021, the prolonged delay in having the substantive matter heard as a direct result of the appellant taking technical jurisdictional points, is causing unreasonable delay, unnecessary costs and substantial injustice to the respondent.

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
2. It is common ground that the decisions appealed from are interlocutory decisions as defined in s 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and that leave to appeal is required.
3. As we stated at the appeal hearing, given that the respondents agreed that the appeal involved an issue of principle and a question of public importance, we considered that leave to appeal should be granted.

The Decision

1. It is appropriate to briefly summarise the Decision.

The Authority's submissions

1. In summary the Authority makes the following submissions.
2. The decision of the Authority of 19 January 2023 is a reviewable decision under s 13A of the LGA 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) (ADR Act) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
3. To be able to obtain the relief in an application for administrative review pursuant to s 13A, it is necessary for an applicant to be: 1. "a relevant person", being here relevantly "the applicant"; and 2. "aggrieved".
4. None of the HPHO Pty Ltd, Mr Arnaout and Mr Stramandinoli was "the applicant" and therefore neither was a "relevant person".
5. Although Mr Orr was "the applicant" to the Authority, he was no longer the licensee by the time of the decision and was therefore not "a relevant person who is aggrieved by [the] decision".
6. 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".
7. 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.
8. There was therefore no jurisdiction for the Tribunal to entertain any of the applications for review of the relevant decision of the Authority.
9. In any event, there was no power to grant relief to any of the applications, as will be discussed further below.
10. The Authority then refers to Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC 240, where the applicant's application for an ETA was refused by the Authority and an application for review to the Tribunal was unsuccessful.
11. The Authority submits that it follows from Taphouse that: 1. the Tribunal could not make orders in favour of anyone other than the current licensee; 2. the Tribunal could not make orders in favour of a person who was not the applicant to the Authority.
12. The Authority submits that this is also sufficient to exclude the applications of all of the respondents.
13. While the Tribunal found that "[Mr Orr] as the current licensee, would be directly affected by the decision of the Tribunal" (Decision at [38(3)]), it did not consider the issue by reference to whether the jurisdiction of the Tribunal was enlivened pursuant to s 13A and whether the Tribunal had the power to grant any relief.
14. The Authority further submits that this conclusion ignores the fact that: 1. Mr Orr had in fact ceased to be the licensee by the time of the Decision; 2. Mr Orr was not aggrieved by the decision of the Authority at the time it was made and there was therefore no jurisdiction to seek administrative review in the Tribunal under s 13A;
15. Since Mr Orr had ceased to be the licensee by the time of the decision by the Authority, consistently with the decision in Taphouse, there was no power for the Tribunal to grant him relief, and the fact that Mr Orr was again the licensee for a brief period between 18 June 2024 and 9 July 2024 does not alter that fact.
16. In relation to the applications for review brought by the applicants other than Mr Orr, the Tribunal concluded that it was "not sure of the utility" of those proceedings.
17. Given the matters raised above and the "binding decision" in Taphouse, the proceedings could not succeed. There was therefore no valid justification for not dismissing the proceedings; and none was suggested by the Tribunal.

The respondents' submissions

1. The first half of the respondents' submissions address the application for leave, elaborating on the statement in the Reply to Appeal that: the conduct of the appellant in delaying the raising of a jurisdictional issue until just days prior to the hearing of the substantive matter, and subsequent aggressive and uncooperative position taken in respect of the respondent's applications for joinder (made to practically and efficiently resolve any potential jurisdictional issues) as well as seeking summary dismissal of the respondent's substantive claim, are strong factors in favour of refusing leave.
2. The respondents submit that the Authority could have taken this point on many occasions prior to it raising the matter for the first time on 29 September 2023.
3. As to the "dispositive" portion of the Decision, the respondents observe that the Tribunal noted that the key point in Taphouse was: … one of utility, i.e. arising from the fact that at the time of the hearing, [Mr Orr] was no longer the licensee meaning that the proceedings were moot and no relief in the form of orders granting an ETA could be made in favour of [Mr Orr].
4. The respondents submit that that is not the case "here", as Mr Orr will, be the licensee at the hearing.
5. The respondents then continue to analyse the Decision, and submit that the reasons do not contain any error. In conclusion, the respondents submit: 24. Ultimately, the argument of [the Authority] on this Appeal would seem to be that given Mr Orr ceased to be the licensee on 8 February 2022, no relief can be ordered in his favour in the substantive proceedings regardless of whether he were to subsequently become the licensee at the relevant time. No authority is cited for this proposition; and certainly Taphouse does not provide any basis for. [The Authority's] argument presupposes that the fact of removal makes it impossible for such a licensee to subsequently apply for, and be granted relief under section 13A.There is nothing in section 13A to suggest as much; at the time of joinder Mr Orr was a relevant person, given that he was the original applicant for the ETA and given that he will was the licensee at the hearing, he will be a person aggrieved by [the Authority's] refusal to grant the ETA. 25. Those are the only jurisdictional requirements to the grant of relief. 26. To the extent that [the appellant states that he had to be a person aggrieved at the time [the Authority] made its decision, section 13A provides for administrative review by this Tribunal in respect of "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)..."; ss 13A(1). 27. That review has not yet taken place. When it does, the Tribunal will have the powers set out in section 63 of the Administrative Decision Review Act 1977 (NSW) which include, affirming the decision, varying the decisions or setting it aside and making a decision in substitution thereof. If anything is to be taken from Taphouse, it is that the critical issue is whether the Tribunal has the ability to grant relief means that that question can only be determined at the time of the review.

Liquor Act

1. Hotels are licensed under the Liquor Act 2007 (NSW) (Liquor Act). The objects of the Liquor Act are set out in s 3 which provides: 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.
2. As the Supreme Court noted in Taphouse: 73 Licensing of a hotel under the Act depends on the Authority's satisfaction that all the licensing requirements of the statutory scheme are satisfied, so that the power to grant a licence may be exercised. They include a consideration of the fitness of the proposed licensee, it only being the licensee who is permitted to sell liquor at the licensed premises in accordance with the conditions of the licence and it being an offence for others to sell liquor there: Liquor Act ss 7, 8 and 9. 74 The identity of a proposed licensee is thus of relevance not only to the grant of the licence, but also to the conditions which may be imposed on the hotel's licence, on grant or subsequently. It is the licensee whose fitness has been assessed who must make applications to trade at the hotel during extended hours: Liquor Act s 49. On such applications the licensee again comes under the Authority's scrutiny. 75 A hotel licence authorises the licensee to sell liquor at the premises in accordance with the conditions of the licence: Liquor Act s 10. It authorises the licensee to sell liquor there at specified times: ss 12 and 14. 76 The Authority may "impose" conditions on such a licence which require the licensee to cease trading at an earlier time than otherwise required by a licence: Liquor Act s 52(2). Section 53 also empowers the Authority to impose, vary or revoke licence conditions, at any time, after giving the licensee a reasonable opportunity to make submissions in relation to the proposed decision and after taking any such submission into account. It specifically includes the power to impose conditions prohibiting the sale of liquor at specified times or to restrict trading hours. The Secretary is given similar powers: s 54. 77 … there is no provision empowering the Authority to impose conditions on the hotel's licence which permit extended trading at the hotel. 78 Rather, the Act empowers the Authority, on application of the licensee, to authorise the licensee to sell liquor at the hotel during specified extended trading hours: Liquor Act s 49(2). Such extended trading hours continue until varied or revoked by the Authority: s 49(5). … 79 The Hotel's licence continues in force until surrendered, cancelled, otherwise ceases to be in force, or, if for a specified term, when it expires: s 46. 80 Licence transfer to another person depends on the Authority's approval: Liquor Act s 60. …

LGA Act

1. The objects of the LGA Act are set out in s 2A which provides: 2A Objects of Act The objects of this Act are as follows - (a) to ensure the probity of public officials who are engaged in the administration of the gaming and liquor legislation, (b) to ensure that the Authority and NICC are accessible and responsive to the needs of all persons and bodies who deal with the Authority, (c) to promote fair and transparent decision-making under the gaming and liquor legislation, (d) to require matters under the gaming and liquor legislation to be dealt with and decided in an informal and expeditious manner, (e) to promote public confidence in - (i) the Authority's decision-making and in the conduct of its members and staff, and (ii) the NICC's decision-making and in the conduct of its Commissioners and staff.
2. NICC means the New South Wales Independent Casino Commission established under the Casino Control Act 1992 (NSW): LGA Act, s 3.
3. Section 13A of the LGA Act provides: 13A Review by NCAT of certain decisions of Authority (1) A relevant person who is aggrieved by a decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation prescribed by the regulations for the purposes of this section (a prescribed application) may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of that decision. (2) (Repealed) (3) An application for administrative review made under subsection (1) must - (a) be made within 28 days of notice of the decision being published on the website of the Department, and (b) be accompanied by the fee prescribed by the regulations. Note - Section 36C requires notice of the decision to be published on the Department's website. (4) Subsection (1) does not apply in relation to a decision of the Authority that confirms, varies or revokes a decision made by a designated Public Service employee or other Public Service employee acting under a delegation given by the Authority. (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.

ADR Act

1. The following provisions are relevant for these appeals: 7 Meaning of "administratively reviewable decision" (1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. (2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. …, 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

NCAT Act

1. Section 5 of the NCAT Act provides: 5 Meaning of "decision" (1) In this Act, decision includes any of the following - (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) For the purposes of this Act - (a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and (b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and (c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and (d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.

Consideration

1. The first point to observe is that while jurisdiction was raised before the Tribunal, it does not appear that the present argument, namely the meaning and effect of s 13A of the LGA Act was not advanced by the Authority. In such circumstances, usually, the Appeal Panel applies the principle of Coulton v Holcombe (1986) 162 CLR 1 at [9]; [1986] HCA 33, namely that if a point is not taken below, the Appeal Panel will not allow it to be raised on appeal.
2. However, in our view that principle should not apply when it comes to the issue of jurisdiction; in short, either the Tribunal has jurisdiction or it does not. The question of jurisdiction of the subject matter can be raised at any time during the proceedings and even for the first time on appeal: Gavit, Jurisdiction of the Subject Matter and Res Judicata.
3. In any event, jurisdiction generally was a question before the Tribunal, as [32] of the Tribunal's Decision makes clear.
4. The relevant facts are not in dispute: 1. Mr Orr, as licensee of the Hotel, lodged his ETA application with the Authority on 23 July 2021; 2. Mr Orr ceased to licensee on 8 February 2022; 3. On 15 June 2022, when the Authority refused Mr Orr's application for the ETA, Mr Orr was not the licensee of the Hotel; 4. On 19 January 2023, being the date of the Authority's Decision, Mr Orr was not the licensee of the Hotel; 5. Mr Orr was licensee again for the period 18 June 2024 to 9 July 2024; 6. On 24 June 2024, when the Tribunal heard the applications in the substantive proceedings and the secondary proceedings, Mr Orr was the licensee of the Hotel; 7. On 22 July 2024, when the Tribunal's Decision was published, Mr Orr was not the licensee of the Hotel; 8. Mr Orr became licensee again on 21 October 2024, and was therefore the current licensee of the hotel at the time of the appeal hearing.
5. It seems surprising that the Authority, as the licensing authority, did not appreciate at the time of its meeting on 15 June 2022 or at the time of its decision of 19 January 2023, that Mr Orr was no longer the licensee. However, we consider that the Tribunal was correct in determining that it did not matter whether or not the Authority's Decision was validly made or issued by the Authority because of the effect of s 6 of the ADR Act and s 5 of the NCAT Act, both of which are set out above.
6. For the reasons summarised above, the Authority submits that Mr Orr was not a "relevant person who is aggrieved by a decision of the Authority" by reason of him not being the licensee of the Hotel when the Authority's Decision was made.
7. We pause to note that the decision was actually made on 15 June 2022, with the Authority publishing its reasons for decision on 19 January 2023. On both those dates, Mr Orr was not the licensee.
8. The Authority submits that as Mr Orr was not the licensee at the time of the Authority's Decision he is not "a relevant person who is aggrieved by [the] decision", and therefore, there was no jurisdiction for the Tribunal to entertain his application for review of the Authority's Decision.
9. In relation to this argument the Tribunal stated: 32 I do not accept that there is no jurisdiction for the Tribunal to conduct the administrative review because there was no applicant licensee at the time the Refusal Decision was made and that, in hindsight, the [Authority] [1] should not have issued a decision. 33 In this case, the Authority did issue a Refusal Decision. And in this case, it was Mr Orr who applied for the ETA as licensee, and it is Mr Orr who now is before us as the current licensee and who seeks to be joined as a party. Nothing said by the Supreme Court in Taphouse compels me to conclude here that where an applicant for an ETA ceases to be a licensee before the refusal decision issues their rights in respect of the ETA application irretrievably lapse for all time. First, the facts in Taphouse are clearly distinguishable from this case due to Mr Orr now being the licensee again; these were not the facts before the Appeal Panel, or the Supreme Court in Taphouse, in respect of which the findings were made (and must be contextualised). Secondly, there is nothing in the legislation that provides for this outcome.
10. Despite the Tribunal invoking Taphouse to dismiss the Authority's application, the Authority relies on Taphouse to support its present application. On the other hand, Mr Orr asserts that Taphouse is distinguishable as in that case the licensee was no longer licensee at the time the Tribunal made its decision, whereas, in the present case, Mr Orr was once again the licensee when the matter was before the Tribunal.
11. Before considering Taphouse, it will be useful to set out the background to the decision.

Taphouse

1. On 12 May 2021, the Authority had refused to grant an ETA for a licenced hotel at Wetherill Park.
2. The applicant sought a review by the Tribunal of the decision. For the reasons given in Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2022] NSWCATAD 255, the Tribunal affirmed the decision under review.
3. TIPL appealed to the Appeal Panel. However, the Appeal Panel dismissed the appeal pursuant to pursuant to s 55 (1) (b) of the NCAT Act on the basis that the appeal was misconceived and lacking in substance.
4. The reasons for that decision appear in Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171. The central basis for the decision was explained as follows: 3. The appellant was the licensee at material times, including when the appeal was lodged, but ceased to be the licensee in November 2022, before the hearing of the appeal, following the completion of a sale of the hotel business. 4. In its reply submissions on the appeal, provided on 28 February 2023, the Authority raised as a threshold matter that because of the change of licensee the appeal was "without utility and incompetent" on the basis that the appellant no longer had any interest in the appeal proceedings and that the Authority's refusal decision was specific to the appellant. The point was not expanded upon in detail. 5. In its written submissions in response, the appellant relied upon two matters concerning this threshold point. First, that it had the right of appeal conferred by s 80 of the NCAT Act and that it would be an "impermissible gloss on the statute" to adopt some restriction on the exercise of the appeal right in the circumstances that had occurred in this case. Secondly, because the new licensee had no appeal right there would be "an unjust lacuna" should there be no possibility of an appeal in these circumstances. 6. We do not accept the appellant's submission about an impermissible gloss on the right of appeal conferred by s 80 of the NCAT Act. This submission fails to take account of the law concerning moot appeals addressed below and the power to dismiss an appeal pursuant to s 55 (1) (b) of the NCAT Act. 7. At the commencement of the hearing of the appeal, we raised the threshold matter with the parties and drew their attention to authorities concerning moot appeals, including the decision of the Appeal Panel in Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 (Feeney) and to the terms of s 49 (2) of the Liquor Act 2007 (NSW) (the LA), referred to below. 8. After an adjournment to allow the parties the opportunity to consider these matters, we proceeded to hear argument about the threshold matter for most of the time allocated that day to the hearing of the appeal. In the course of doing so, we heard competing arguments from Counsel for the parties about the threshold matter, including whether the appeal should be dismissed leaving the option for the new licensee to pursue a new application to the Authority for an extended trading authorisation. 9. During submissions from Mr Ireland, who appeared for the appellant, the appellant came to make an application for the new licensee, Kelly Marie Hughes, to be joined as a party to the appeal (a formal application in this regard, signed by Ms Hughes, giving the appellant's solicitor as her legal representative, ultimately, came to be provided to us). Mr Ireland informed us that his instructing solicitor had instructions to act for the new licensee and the new owners of the business in respect of the appeal, as well as instructions to act for the appellant. In this connection, Mr Ireland also came to seek to tender a copy of a Deed of Indemnity, dated 24 October 2022, between the appellant and other parties concerning the conduct of the appeal. Mr Cheshire SC, who appeared for the respondent, objected to the joinder application and to the tender of this document. 10. After the hearing of the appeal, the appellant made an application to reopen in order to make further submissions about the utility of the appeal with reference to some decisions concerning the status of decisions about liquor licenses as judgements in rem. The respondent did not object to these further submissions and made some short additional submissions itself on this subject. 11. For the reasons set out below, we have decided to allow the tender of the Deed of Indemnity, reject the joinder application because it does not assist the appellant to resist the moot point argument, and uphold the threshold point taken by the respondent, with the consequence that the appeal should be dismissed.
5. In relation to the "threshold point", TIPL had relevantly submitted that: 1. the grant of an ETA, as with the grant of a licence, was in rem in nature such that it would run with the premises until revoked. In this way, such a grant would be binding upon the public at large, including the new licensee, not just between the parties to the decision and, hence, a decision upon the merits of the appeal was of practical utility. 2. there was relevant utility in the determination of the appeal because the Appeal Panel, if it upheld the appeal, could order that the ETA be granted to the new licensee, who could be joined as a party to the appeal.
6. As to the first contention, the Appeal Panel stated at [21] that that contention "must, ultimately, be directed at overcoming the interpretation of s 49 (2) of the [Liquor Act], according to which the Authority and, hence, the Tribunal or the Appeal Panel, standing in the shoes of the Authority, may only grant an ETA to the licensee who applies for the grant".
7. The Appeal Panel then stated: 28. Through the administrative review proceedings in the Tribunal and subsequent appeal, the appellant sought to overturn the Authority's refusal of its extended trading authorisation application. In this regard, in the Notice of Appeal (lodged on 29 August 2022) the appellant sought orders from the Appeal Panel that: 1. The decision under review is set aside. 2. In substitution for the decision under review, the Tribunal orders that the application is approved. 29. In doing so, the appellant sought to invoke the powers of the Tribunal in administrative review proceedings to stand in the shoes of the decision-maker and decide what was the correct and preferable decision based upon the material presented to the Tribunal; s 63 of the Administrative Decisions Review Act 1997 (NSW). 30. Under s 13A (1) and (5) of the Gaming and Liquor Administration Act 2007 (NSW), because the appellant was the applicant for the ETA, the appellant was a relevant person who was aggrieved by the decision of the Authority and, accordingly, was able to apply for administrative review under the Administrative Decisions Review Act 1997 (NSW). 31. The appellant also sought to invoke the powers given to the Appeal Panel under s 81(1)(d) and (2) of the NCAT Act, in respect of an appeal, to make a decision in substitution for a decision the subject of the appeal and, in doing so, to exercise the functions of the Tribunal conferred by legislation. … 41 … the Authority's decision the subject of these administrative review proceedings was a decision that refused the application for the grant of extended trading hours to the appellant. It follows that the relief sought by the appellant in the administrative review proceedings, and on appeal, must be seen as relief to reverse that situation and obtain a grant of such authorisation, specifically, to the appellant. 42 Furthermore, as we construe s 49(2), neither the Authority, nor the Tribunal, nor the Appeal Panel on appeal, has any power now to grant the ETA sought to either the appellant or to the new licensee in response to the appellant's application. … 61 Because of our interpretation of s 49 (2), it follows that the Appeal Panel in this appeal, just like the Tribunal, has no power to grant the ETA sought by the appellant to the new licensee. 62 We add that, in our opinion, it would be a strange state of affairs if an order granting the ETA to the new licensee was made on this appeal in circumstances where there had been no investigation or consideration of the merits of such a step by the Authority in the exercise of its powers under the [Liquor Act].
8. It was against that background that TIPL appealed to the Supreme Court, with the Court granting leave to appeal but dismissing the appeal. In passages relied on by the Authority, the Court stated 127 Nor do ss 49 or 60 contemplate that a former licensee of a hotel may continue to pursue an application for extended trading which the Authority has rejected. It is no longer entitled to sell liquor there at any time. 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.
9. The Court concluded: 156 The Tribunal no longer has the power to authorise extended trading at the Tavern on Taphouse's application. 157 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. 158 Accordingly, Taphouse's external appeal must also fail. 159 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. 160 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. 161 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. 162 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. 163 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.
10. 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.
11. 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].
12. Accordingly, we consider that the Tribunal erred in refusing the Authority's application for summary dismissal.

Conclusion

1. It follows that, having granted leave to appeal to appeal in both the substantive proceedings and secondary proceedings the appeal in each should be allowed.

Costs

1. If the Authority seeks costs, it may file and serve submissions (and if necessary evidence) within 14 days.
2. Mr Orr may respond within a further 14 days.
3. The Authority may reply within a further 5 days.
4. Submissions are to be limited to 5 pages.
5. We propose to deal with costs "on the papers". Any party opposing that course should address that issue in their submissions. We draw the parties' attention to the observations of the Appeal Panel in Westweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85], that, "costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing". Those observations are equally applicable to these proceedings.

Orders

1. The Tribunal orders: 1. In relation to each of matters 2023/00035087 and 2023/00313081: 1. Leave to appeal is granted; 2. The appeal is allowed and the proceedings are dismissed; 3. On or before 28 November 2024, the appellant is to file and serve submissions and if necessary evidence in relation to costs; 4. On or before 12 December 2024, the respondents may respond; 5. On or before 19 December 2024, the applicant may reply.

Endnote

1. In the Decision the Tribunal erroneously referred to the Tribunal at this point. The sentence as a whole makes it clear that the Tribunal mean to refer to the Authority and its decision. 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

Amendments 20 November 2024 - Order 1 (b) amended. 20 November 2024 - Order 1 (b) at end of decision amended 05 December 2024 - Paragraph 64 - opening statement identity of party changed from, "the Authority" to, "TIPL". 07 February 2025 - name of respondent amended 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: 07 February 2025