Liquorland (Australia) Pty Ltd v Independent Liquor and Gaming Authority

Texts Cited: Nil

Category: Procedural rulings

Parties: Liquorland (Australia) Pty Ltd (Applicant)
Independent Liquor and Gaming Authority (Respondent)
Also heard:
Cameron Hotels Pty Ltd (Applicant for joinder)
Cape View Wholesale Pty Ltd (Applicant for joinder)

Representation: Counsel:
NL Sharp SC (Applicant)
C Ireland (Applicants for joinder)
Solicitors:
JDK Legal (Applicant)
Crown Solicitor (Respondent)
BSV Liquor and Gaming Lawyers (Applicants for joinder)

File Number(s): 2026/00121694

Publication restriction: Nil

REASONS FOR DECISION

1. The applicant in the substantive proceedings, Liquorland (Australia) Pty Ltd (Liquorland) applied to the Independent Liquor and Gaming Authority (the Authority) for a new packaged liquor licence for proposed premises in Alstonville in the Ballina Local Government Area. The proposed premises are a standalone shop in the Alstonville Plaza, which is anchored by a Coles Supermarket.

2. On 18 February 2026 the Authority refused the application under s 45 of the Liquor Act 2007 (NSW). In its decision the Authority stated that it was not satisfied that approving the proposal would facilitate the balanced development of the liquor industry in the public interest or that the overall impact of the licence would not be detrimental to the wellbeing of the local or broader community. The Authority referred, among other things, to social impacts, harm minimisation, impact on the amenity of community life and density of outlets. The Authority noted the unusually high number (122) of submissions on the proposal from the local community.

3. Liquorland sought administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision made by the Authority. Cameron Hotels Pty Ltd and Cape View Wholesale Pty Ltd have sought to be joined as parties to the review application before the Tribunal. Cameron Hotels Pty Ltd trades as the Federal Hotel in Alstonville and Cape View Wholesale Pty Ltd trades as Alstonville Cellars. The businesses of both companies are located near the proposed premises and both had made submissions to the Authority.

4. For the reasons set out below, I have refused the joinder applications.

Tribunal’s power to join a party

5. Under cl 27 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), the parties to an application for administrative review of a decision are the applicant, the person or body in respect of whom an order or other decision is sought, the Attorney General or another relevant Minister if that person intervenes and any other person required to be joined or joined under s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

6. The Tribunal has power under s 44(1) of the NCAT Act to order that a person be joined as a party to the proceedings “if the Tribunal considers that the person should be joined as a party”. The power is discretionary and, by its terms, is very broad. Section 44(2) provides for the removal of parties if the person has been improperly or unnecessarily joined or ceased to be a proper or necessary party.

7. It has been consistently held that, given the provisions in s 44 and relevant authorities, a person should be joined as a party if the Tribunal considers that joinder is “necessary” or “proper”: C**ommissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 (Fine); Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182; Auld v Independent Liquor and Gaming Authority [2017] NSWCATAD 160 (Auld).

8. When deciding whether to exercise the discretion to join a person as a party, “the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case” are all relevant factors: Fine at [57]. Whether prejudice would be caused by joinder, such as delay to proceedings, is relevant. In addition, as stated by the Tribunal in Auld at [14]: “[w]hen exercising its powers under the [NCAT Act], including the power under s 44(1), the Tribunal is to seek to give effect to the guiding principle…to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

The Liquor Act

9. Section 48(3) of the Liquor Act (as in force at the relevant time) provides that the Authority must decline an application unless it is satisfied that the “overall impact” of the licence “will not be detrimental to the well-being of the local or broader community”. I note that since the decision was made s 48 has been replaced by s 72I which is in the same terms.

10. The objects of the Liquor Act are set out in s 3. Two objects which are particularly relevant to the issues in these proceedings are “to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community” and “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”.

11. By virtue of s 3(2), the Authority, and any person exercising functions under the Liquor Act, is required to have “due regard” to certain factors. Relevantly, these include “the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour)” and “the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life”.

Submissions of the joinder applicants

12. The joinder applicants argue that they are a “proper” party to the proceedings on a number of bases. As I understand the submissions, they do not claim to be a “necessary” party and, indeed, they would not meet the test as outlined in Fine that a person whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party: at [39]. There is no suggestion that any orders of the Tribunal will bind the joinder applicants.

13. In summary, they submit:

14. They are persons whose interests are affected by the decision as they are a part of the liquor industry, operate existing outlets and are representatives of the local community;

15. Their participation in the original process was at such a level that it should be replicated in the review by the Tribunal;

16. They can provide information and present evidence, including on local impacts and community views, in response to new material placed before the Tribunal by Liquorland which the Authority may not, or may not be able to, present;

17. They will be in a far better position than the Authority to cross examine Liquorland’s witnesses due to their local knowledge and to obtain local and expert evidence in response to the application;

18. Had the authority granted the application, they would have had a right themselves to seek review of that decision under s 13A of the Gaming and Liquor Administration Act 2007 (NSW) (GLAA); and

19. If they are not joined, due to the Authority’s general approach to matters before the Tribunal, the matter will proceed without a proper contradictor.

Liqourland’s submissions

14. Liquorland opposes the joinder application and submits that the joinder applicants are neither “necessary” nor “proper” parties. It also states that, if made parties, the joinder applicants will unnecessarily prolong the proceedings and disproportionately increase costs, contrary to the guiding principle in s 36 of the NCAT Act.

15. Liquorland accuses the joinder applicants of orchestrating the large number of community submissions made to the authority. Liquorland provides material produced under summons which it states supports this contention. Liquorland submits that the joinder applicants cannot effectively represent the community position because they have manipulated it.

16. Liquorland further submits that the interests the joinder applicants seek to protect are their commercial interests and that the Liquor Act is not concerned with the protection of competitors’ business interests.

17. Liquorland also submits that there is no basis for the joinder applicants’ submission that the Authority will not be an active contradictor in the proceedings. Liquorland notes that the Authority has not filed a submitting appearance.

Authority’s position

18. The Authority does not object to the joinder of the joinder applicants and makes no submissions in respect of the application.

Consideration

19. The applicants for joinder argue that I should, as a matter of comity, follow the Tribunal’s decision in Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority [2022] NSWCATAD 358 (Ice Box). In that matter, which concerned review of a decision of the Authority refusing an application made by Ice Box Liquor Pty Ltd (Ice Box) for the grant of a packaged liquor licence in respect of premises in Woollahra, the Tribunal made orders joining two commercial competitors of Ice Box to the proceedings.

20. The Tribunal found that that the joinder applicants’ interests in that case were affected by the decision under review. The Tribunal held they each had an interest in the decision of the Authority and in the outcome of the decision and were a proper party to be joined to the proceedings.

21. The Tribunal’s reasons for so finding were:

22. At the hearing the Tribunal would be assisted by having available to it up to date information, testimony and relevant cross examination of witnesses relevant to local community life. The commercial competitors are uniquely placed to provide that information and be in a better position to do so because of their proximity both geographically and in time to the premises.

23. The Tribunal would be assisted during the hearing process with relevant and accurate local community information, which could be tested through the cross-examination of the commercial competitors witnesses.

24. The commercial competitors have an interest in the liquor industry and community life within the Woollahra area. They will be directly affected by the decision of the Tribunal and joining them as a party is consistent with the statutory process set out in s 44(1) and (2) of the Liquor Act, which involves the consideration of deciding whether to grant the licence.

25. The Tribunal must consider when determining the substantive application the community impact in granting the licence. That includes the views of the local community (including the interests of the commercial competitors), the results of any discussions between the applicant and the local community about the issues and concerns that the local community may have in relation to the application and a community impact statement.

26. While they could be a party under s 13A of the GLAA to an administrative review of a decision of the Authority if aggrieved by the decision, they cannot be a party to an appeal in the Appeal Panel if they are not a party to the substantive proceeding.

27. Liquorland submits that Ice Box is wrongly decided and should be treated with caution. Liquorland points to the Appeal Panel’s comments in Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 at [8] that the fact that commercial competitors had been joined in the primary proceeding “should not suggest that a similar conclusion would necessarily be reached in a different case where the party seeking to be joined was a competitor, or a resident of the relevant community”. Narraport Woollahra Holdings Pty Ltd was one of joined parties.

28. In the substantive decision on the Ice Box application (Ice Box Liquor Pty Ltd v Independent Liquor and Gaming Authority [2026] NSWCATAD 4) the Tribunal said at [9]:

“Whether the Second and Third Respondents were necessary and proper parties, and the manner in which those parties largely controlled the running of the appeal and the first-instance hearing was a matter of some comment by the Appeal Panel: Narraport AP [4]-[8],[120]-[121]. While entities that will have to carry out or be responsible for the orders made by the Tribunal are necessarily and properly joined, I acknowledge that there is significant debate over whether commercial competitors are properly and necessarily joined, having regard to the text of s 44 of the Civil and Administrative Tribunal Act and the authorities that consider that provision.”

24. I am not bound by the joinder decision in Ice Box. The Tribunal conducts merits review of a decision of the Authority and each matter will be determined by applying the law to the facts particular to that matter.

25. There is no doubt that the joinder applicants, as local businesses in the liquor industry, have an interest in the outcome of the application. As was stated in Fine, a party whose interests are affected by the decision will usually be a proper party: at [40]. There is a question, however, whether the interests of the joinder applicants are such as to lead me to conclude they may be “proper” parties.

26. In its submissions Liquorland describes those interests as being purely commercial and submits that that is not a proper interest in the context of the Liquor Act. Liquorland refers to the abolition in 2007 of what was described as the “needs test” by which an objection to the grant of a licence could be made on the ground that the needs of the public could be met by existing facilities for the supply of liquor. Liquorland also refers to Guideline 6 - Consideration of overall impact under section 48(3) of the Liquor Act 2007 issued by the Authority which states that “[t]he fact that a locality may already be well served by liquor businesses is not, of itself, a basis for refusing a new licence application”.

27. The joinder applicants state that they are not seeking to protect or rely upon their commercial interests. Rather, they say they are able to provide evidence and submissions relating to density and community impact. Density of premises selling alcohol relates to the object in s 3 of the Liquor Act “to facilitate the balanced development, in the public interest, of the liquor industry.” Matters relating to density of outlets and other premises in my view require an objective assessment of demographics and related matters which the Authority itself is able to obtain from objective sources. This information was before the Authority when it made its decision and the Authority has access to such information on an ongoing basis.

28. The joinder applicants submissions focus primarily on their ability to provide evidence and submissions and to represent community views. As noted above, Liquorland submits that the joinder applicants have orchestrated or fomented opposition to the application. This is primarily because the joinder applicants made available a petition opposing the application by Liquorland to be signed by members of the community. They also made available a flyer which had a QR code which could be scanned to take a person to the submissions page on the Authority’s website. The joinder applicants acknowledge they provided petitions for patrons to sign and rounded up and collected submissions from persons in the community opposed to the application by Liquorland. They state that this does not, however, affect the validity of the opinions expressed by those who made submissions.

29. The issue in this application is not whether the joinder applicants played a role in organising opposition to the application or whether the opinions expressed by those who signed the petition or made submissions are genuinely held. Rather, it is whether the claims of the joinder applicants to represent the community and present evidence on local impacts and community views mean they may be proper parties to the application.

30. I am not satisfied that the joinder applicants are best placed to represent in an impartial way the views of the broader community or that they themselves can be said to represent the community. From the information provided, the petition and flyer were made available primarily to patrons and customers of the businesses of the joinder applicants. Those persons comprise a sub-set of the broader community, being those who, if not all, at least by a significant majority, consume alcohol. The joinder applicants make broad statements about their ability to provide community views, but it is not clear how they intend to garner the views of the broader community as distinct from those who are similarly involved in the industry as customers, patrons, suppliers or others with an interest in the liquor industry. The joinder applicants themselves are involved in the liquor industry and their statements that they are best placed to represent the views of the broader community must be treated with caution given their position as commercial competitors.

31. In addition, persons and organisations in the community wishing to make submissions were provided with such an opportunity by the Authority prior to the making of its decision. A number of submissions were received. It is not clear, when the decision was made a relatively short time ago, why the joinder applicants appear to argue that there is significant community opinion which could now be provided. I do not consider that this is likely to be the case.

32. It is true that, if the decision of the Authority had been to grant the licence, the joinder applicants would have had a right under the GLAA to seek review by the Tribunal of that decision. That does not mean, however, that anybody who made a submission to the Authority should be considered a proper party to any application made to review a decision of the Authority to refuse an application. The GLAA does not make provision for any objectors before the Authority to play a role in Tribunal proceedings where an application has been refused. If that was intended, such provision could have been made along the lines of third-party objectors having a right under s 104(3) of the G**overnment I**nformation (Public A**ccess) Act 2009 (NSW) to appear and be heard in Tribunal proceedings. I do not consider this aspect to be a matter indicating that the joinder applicants may be proper parties to the proceedings.

33. The joinder applicants argue that the proceedings will proceed without an active contradictor if they are not joined. As was noted by the Court of Appeal in Fine at [81], “… the question whether a party (sic) should be joined as a party to the proceedings is not to be determined by reference to the question of whether the decision-maker is or is not an active protagonist in the proceedings”.

34. As was also stated by the Tribunal in Auld at [40], merits review proceedings before the Tribunal are not conducted in a strictly adversarial way. The Tribunal makes its decision on the basis of all relevant factual material and any applicable written or unwritten law. In any event, the Authority has not indicated that it will make a submitting appearance in the substantive application or that it will take no active part. Indeed s 36(3) of the NCAT Act places a duty on a party “to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal”. As a party and a model litigant, it would be expected that the Authority will be an active participant in the proceedings.

35. It is difficult to ascertain whether there would be any significant delay to the proceedings if the joinder application was granted, but there would at least be additional time required at a hearing and in preparing evidence and submissions which may be said to be not in keeping with the guiding principle to facilitate the just, quick and cheap resolution of the real issues in dispute.

36. Overall, I am not satisfied that the joinder applicants are proper parties. The application for joinder must therefore be refused.

Orders

1. The application by Cameron Hotels Pty Ltd and Cape View Wholesale Pty Ltd to be joined as parties is refused.
2. The substantive application is listed for directions at 9:30 am on 4 August 2026.

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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