Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd - [2024] NSWCATAP 240 - NSWCATAP 2024 case summary — Zoe

NSWNSWCATAP

Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd

[2024] NSWCATAP 240

NCAT Appeal Panel|2024-11-08

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2024-11-08

Catchwords

[1990] HCA 20 Medical Council of New South Wales v Mooney [2024] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
[1986] HCA 40 MZAPC v Minister for Immigration and Border Protection 273 CLR 506
[2021] HCA 17 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36

Source

Original judgment source is linked above.

Catchwords

[1990] HCA 20 Medical Council of New South Wales v Mooney [2024] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40 MZAPC v Minister for Immigration and Border Protection 273 CLR 506[2021] HCA 17 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36

Judgment (47 paragraphs)

[1]

Background

These proceedings concern an application for a "packaged liquor licence", in respect of premises in Woollahra, NSW (the premises). A packaged liquor licence authorises the licensee to sell liquor, by retail in sealed containers, for consumption away from the licensed premises, as specified under s 29 of the Liquor Act 2007 (NSW).
At first instance, the Tribunal considered an application by the (now) first respondent, for review of the decision of the (now) second respondent (the Authority), to refuse to issue a "packaged liquor licence" (the licence). The Tribunal set aside the Authority's decision and directed the Authority to issue the licence, subject to conditions (the Decision). The date of the Decision and of the orders was 28 July 2024. That is to say, the orders had immediate effect.
In accordance with the Tribunal's orders, the licence was granted on 2 July 2024.
This is an appeal, by commercial competitors (the appellants) of the first respondent, against the Decision. The Authority does not appeal. Nonetheless, by its submissions, the Authority supports some aspects of the appeal.

[2]

Standing of the appellants

The Appeal Panel raised, at the hearing, the question of standing of the appellants in circumstances where they are commercial competitors of the first respondent and where the Authority does not itself seek to appeal. Neither respondent challenged the standing of the appellants before the Appeal Panel and the Appeal Panel accepts that the appellants have standing for the following reasons.
The appellants were joined, at first instance, as parties to the first respondent's (then applicant's) application to the Tribunal to set aside the Authority's decision refusing the licence: Ice Box Pty Ltd v Independent Liquor & Gaming Authority [2022] NSWCATAD 358 (the joinder decision). The Tribunal said, in the joinder decision, at [68]: "I find that the Commercial Competitors interests will be affected by the decision or that there is a matter of public interest being the effect on the local community concerning the grant, or refusal of the Licence, which makes them a proper party to be joined to these proceedings."
Neither respondent sought to challenge the joinder decision.
As identified in Commissioner of Police NSW v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327 at [37], the question of joinder is a discretionary decision. The joinder decision was based on the Tribunal's view, on the evidence before it, as to the nature of the appellants' interest and why, in this particular case, they were proper parties. This should not, however, 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.
Appropriately, as parties to the underlying proceedings, the appellants have standing to bring this appeal: s 80(1) of the NCAT Act.
At first instance and before the Appeal Panel, the focus of the appellants' submissions related to the correct application of the statutory test under s 48(5) of the Liquor Act, that the overall social impact of the licence will not be detrimental to the well-being of the local or broader community and not their commercial interests. Their focus was on the public interest, though they never shied away from the fact that they were indeed competitors of the first respondent.
We return below to the way in which the first respondent suggested, with regards to leave to appeal, the Appeal Panel should approach some submissions of the appellants, on the grounds that they were commercial competitors.

[3]

Application for a stay

The appellants sought a stay of the Decision, pursuant to s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW), until the determination of this appeal. As merits of the appeal are relevant to a stay application and as the first respondent agreed not to commence trading before giving 21 days notice, the interlocutory application was listed to be heard by the Appeal Panel, along with the appeal.
The first respondent has now notified its intention to commence trading on 23 November 2024.
The Appeal Panel has power to order a stay of a first instance decision pending appeal. Section 43(3) of the NCAT Act provides: 43 Effect of pending general applications and appeals … (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
A preliminary issue arose.
As a result of the timing of the Tribunal's orders, the form of the orders and the alacrity with which the Authority carried out the Tribunal's direction, an issue arose as to the utility of a stay.
The orders made by the Tribunal were as follows: "(1) The Authority's decision is set aside. (2) The Authority is to issue Ice Box Liquor Pty Ltd with a packaged liquor licence subject to the conditions specified in its application in respect of premises at 136 Queen Street, Woollahra, New South Wales, and subject to the further conditions that customer collections will not be allowed to occur in Peaker Lane and that the Applicant will not make trolleys available for customers in its store."
The nub of the issue is that the Decision has been fully complied with. The licence has issued. On the face of it, there is nothing to stay.
The Appeal Panel invited submissions from the parties in relation to this issue and they were provided on an expedited basis.
We pause to note that a similar issue may arise in relation to the appropriate orders to be made on the appeal. As noted below, the Appeal Panel allows further submissions in relation to that aspect, if necessary.
Section 63(3) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides: (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.
In summary, each party submitted that the orders of the Tribunal at first instance may be construed as the Tribunal, itself, issuing the licence under s 63(3)(c) of the ADR Act. No party suggested that the Tribunal was directing the Authority to reconsider its decision to refuse the licence, as directed in the Tribunal's reasons (under s 63(d) of the ADR Act); and it would not be construed as such a direction to the Authority without further consideration, as that would be beyond power.
This was said to be supported by the Decision at [7]: "For the reasons that follow, I have determined that the overall social impact of a packaged liquor licence issued to the Applicant will not be detrimental to the well-being of the local or the broader community. The effect of that conclusion is that the Authority's decision to refuse the package liquor licence to the Applicant should be set aside, with the result being that the Applicant should be provided with a packaged liquor licence subject to the conditions nominated in its application."
The Authority notes that had the Tribunal, itself, issued the licence, it would have been taken to have had effect as a decision of the Authority; as and from the date of the Authority's decision, unless the Tribunal ordered otherwise (s 66(2)(a) of the ADR Act). Essentially, so it is submitted, Order 2 is indistinguishable from an order of the Tribunal issuing the licence.
The first respondent couches it on the basis that the Tribunal issued the licence; but as the Tribunal does not have the relevant administrative machinery, the Tribunal has directed the Authority to bring the Decision into effect.
Even if there has been a two-step process and the licence itself is the product of a different and later decision and cannot be affected by a stay of the Tribunal's decision, all parties submitted that the Tribunal has power under s 43(3) of the NCAT Act to craft an order that affects the operation of that later decision, pending the appeal (we note the first respondent opposes the stay on balance of convenience grounds). For instance, the first respondent might be precluded from making use of or relying on the licence. Alternatively, the licence may be suspended. The Appeal Panel accepts this.
At first instance, the Tribunal, in accordance with s 63(3)(c) of the ADR Act: 1. set aside the decision of the Authority to refuse the licence; and 2. made a decision in substitution, to issue the licence.
Further still, the Tribunal directed the Authority to give effect to the substituted decision to issue the licence.
Even though the Tribunal has, in effect, directed the Authority to give effect to its decision by issuing the licence on the conditions specified, this is indistinguishable from the Tribunal itself issuing the licence on the conditions specified and it being treated by s 66(2) of the ADR Act as a decision of the Authority. There is accordingly power under s 43(3) of the NCAT Act to, effectively, stay the operation of the licence.
There is now a degree of urgency. Consequently, the Appeal Panel accelerated its consideration of the interlocutory application and the appeal itself. As the Appeal Panel has reached a decision on the appeal, there is no need to determine the interlocutory application.
The interlocutory application for a stay of the Tribunal's decision is, therefore, dismissed.

[5]

On appeal: "on any question of law"

Without attempting to be exhaustive: 1. A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]. 2. A "pure question of law" and "a question of law alone" have been said to be synonymous: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12] and [14], summarising Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr v Cobar). 3. A mixed question of fact and law is not a pure question of law: Orr v Cobar at [60]. 4. A question of law must be articulated with precision, as (absent leave to appeal) it is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]; Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [97]. 5. It should be possible to discern the question of law from the notice of appeal; the question must be discernible on the face of the ground and not depend upon disputed facts: Orr v Cobar at [48] and [109]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz) at [71]. 6. Care must be taken even where the question is couched in terms of facts fully found; because whether there is a question of law should not depend on the answer to the question, such as whether something was "open to find". Such a question might lend itself to the answer "yes", it was open (even though minds might differ), which would not raise a question of law: Orr v Cobar at [58]-[59]. Further, even irrational findings raise questions of fact: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at pp 156-57; Thomas and Naaz at [53]. 7. A ground of appeal may disclose an error of law, yet not raise a question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [42]; Orr v Cobar at [52]-[54]. 8. As an appeal is "on" any question of law, the question must not be arid: albeit in a different context, see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at pp 353-54; [1990] HCA 33. Further, an appeal is against orders: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. This suggests that an appeal on a question of law should be capable of affecting the orders at first instance, in a meaningful way. The Appeal Panel notes, without expressing a view, the earlier decision of the Appeal Panel in Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139, that it is sufficient for there to be some practical utility.
In summary, for each ground of appeal we must be satisfied that it raises, with sufficient particularity, a pure question of law that arises on the appeal. If we are not so satisfied, we must turn our minds to whether leave to appeal ought to be granted.

[7]

Statutory Framework

The relevant provisions of the Liquor Act are those immediately prior to legislative amendments introduced to take effect on 1 July 2024, as a result of the 24-Hour Economy Legislation Amendment (Vibrancy Reforms) Act 2023 (NSW).
The objects of the Liquor Act are identified in s 3: 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.
Sections 48(1) and (5) of the Liquor Act 2007 (NSW) provides: 48 Community Impact (1) The object of this section is to facilitate the consideration by the Authority of the impact that the granting of certain licences, authorisations or approvals will have on the local community, in particular by providing a process in which the Authority is made aware of - (a) the views of the local community, and (b) 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 (c) whether the granting of the application would provide employment in, or other opportunities for, any of the following - (i) the live music industry, (ii) the arts sector, (iii) the tourism sector, (iv) community or cultural sector. … (5) The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to - (a) the community impact statement provided with the application, and (a1) any published cumulative impact assessment that applies to the area in which the premises the subject of the application are located, and (b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions), that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community.

[8]

Decision of the Tribunal at first instance

The Tribunal, after identifying the relevant legislation, recognised by reference to relevant cases, that the Tribunal was required to be "actually satisfied" that the social impact "will not" be detrimental (at [14]); and that, in assessing the overall social impact, the Liquor Act is concerned with harm associated with the misuse and abuse of liquor and ensuring that the sale of liquor contributes to and does not detract from the amenity of community life. To this end, it is necessary to take into account both the positive and negative aspects: Decision at [15]-[16].
The Tribunal set out the statutory question at [17], as follows: "Accordingly, the Tribunal on review must not grant an application for a liquor licence unless it is satisfied that the overall social impact of the licence will not be detrimental to the well-being of the local or broader community: Liquor Act, s 48(5) having regard to the material set out in the subparagraphs to that section."
The Tribunal then set about on a careful analysis of the wealth of lay and expert evidence.
The Tribunal systematically recounted the essence of each piece of evidence, be it oral or documentary, and formed conclusions along the way as to the limitations of the evidence, the strength or relevance of the evidence and where there were competing witnesses, which was to be preferred: Decision, [21]-[125]. Without providing an exhaustive list, the evidence included evidence from: representatives of the first respondent; representatives of the appellants; members of the community; a representative of the NSW Police Force; a traffic and transport planning consultant; town planners; a market researcher; a social planning expert; a representative from the local health district; a traffic engineer; and a social and strategic planner. Further, there was evidence concerning market research and published research in relation to the harms from alcohol use, and the link between those harms and the increased density of liquor outlets. Further still, there was evidence concerning a dormant licence that had been issued several years ago in respect of a Vintage Cellars store, originally to be located in very close proximity to the premises, but which was now planned to be located (at an unspecified time) elsewhere within Woollahra, as part of a Coles Supermarket (the Vintage Cellars licence).
After comprehensively reviewing the evidence, the Tribunal commenced an evaluation of the evidence for the purposes of reaching a conclusion: at [126]-[203]. The Senior Member concluded at [204], as follows: "Having regard to the totality of the evidence, I am satisfied, on balance, that the overall social impact of granting the Applicant a packaged liquor licence will not be detrimental to the well-being of the local or broader community."
In reaching the overall conclusion, the Senior Member made the following conclusions along the way, after, for each category, providing reasons which included references to the evidence.
As to community views: 1. With respect to the local or broader community, there were various and conflicting petitions and other evidence. The Senior Member was unable to make a factual finding. The Senior Member treated this as a neutral factor: [126]-[131]. 2. With respect to the suggestion that the Community Strategic Plan Woollahra 2032 was a good indicator of community expectations, the Senior Member concluded that the fact that a proposal in respect of the Vintage Cellars licence many years ago had been approved, tended to indicate that that application had met community expectations. Also, it followed that the first respondent's application for "a small store, nestled between existing and complimentary retailers, would be in greater conformity with the strategic plan than the Vintage Cellars licence, which was apparently approved by the Council some years before: [132]. 3. With respect to the evidence of Ms Elsing, a resident of the local area and councillor of Woollahra Municipal Council, concerning the institutional opposition to the applicant's proposed use of the premises, the Senior Member said: "I consider the fact that the Vintage Cellars Licence was approved and had been dormant for a decade as being relevant to questions of amenity and community expectations." The Tribunal at [133] noted that Ms Elsing expressly declined to comment on the reasons why the Vintage Cellars application had been granted, whilst the applicant's development application was rejected and the respective differences. 4. With respect to the last two aspects, the Tribunal does not expressly record whether it is a neutral, positive or negative factor.
With respect to factors in favour of granting the packaged liquor licence, the Tribunal at [134]-[149], reasoned as follows: 1. Greater convenience: the Tribunal recorded an agreement, as between the parties, that there was a benefit to the proposed licence. This factor was given significant weight. 2. Decreased need for special trips to purchase liquor: the Tribunal did not consider this to be a significant factor and gave it little positive weight above the consideration of convenience. 3. Increased consumer choice and competition: after noting that increased competition may in fact "entice more people to drink alcohol or entice current (including problem and vulnerable) drinkers to drink in greater amounts, then that would be a matter that would be considered detrimental to the community" and after considering whether an additional liquor outlet contributes to excessive outlets, the Tribunal nevertheless concluded that this was a factor in favour of granting the licence. The Tribunal gave that factor significant weight, "taking into account the needs and aspirations of the community for improved choice and price competition and considering the orderly development of the liquor industry." 4. Increased local employment opportunities: the Tribunal noted that whilst the number of employment opportunities created by the proposal was modest, this factor was given some weight in favour of granting the licence.
With respect to factors against granting the packaged liquor licence, the Senior Member reasoned as follows: 1. Increased licence density: the Tribunal acknowledged that increased density of liquor outlets will increase the risk of alcohol-related harms. Further, the Senior Member took into account the Vintage Cellars licence, in consideration of density. Nevertheless, noting size and scale of the supply of liquor is a more significant factor when considering harm, than the number of outlets per se, the Tribunal noted that the proposal was for a modest size that will not be open late at night or be offering home delivery. The Tribunal therefore accorded little negative weight to the simple incident of increased licence density in the area. 2. Increased risk of alcohol-related crime: the Tribunal noted that the specific location of the premises will be in a low-density area for alcohol-related crime, albeit surrounding areas of Paddington and Double Bay attracted younger and more high-risk patrons; and further, hotspots for vehicle theft surround the transport commercial hubs in Bondi Junction. The Tribunal appears to have given this no negative weight, even though it was understood to be a significant factor. At [160] the Senior Member said: "Accordingly, while I give this consideration significant weight, I am satisfied that the grant of a packaged liquor licence to the Applicant would not increase the risk of alcohol-related crime (non-domestic violence) in the local or broader community." 1. Increased risk of domestic violence: the Senior Member noted that this was a very serious consideration, recognising that the incidence of domestic violence is widely under-reported. The Tribunal referred to the appellants' submission that another packaged liquor licence was likely to exacerbate the rate of domestic violence in the community and said, "this is a risk and … I should give significant weight to this matter." Nevertheless, the Tribunal took into account that the balance of the research strongly supported the proposition that it is the size of outlet and amount of liquor sold rather than the number of outlets that has a greater causal relationship to the increase rate in domestic violence. Further, it was noted that the proposal was for a shop that is part of a small chain of stores owned by a single family, significantly smaller than what was already approved by the Authority in respect of the Vintage Cellars licence. Ultimately, the Tribunal appears to have concluded that it was appropriate to give this factor no negative weight. It was said at [166]: "Accordingly, and giving this consideration significant weight, I am satisfied that the packaged liquor licence, as proposed for the Premises, is unlikely to increase the risk of domestic violence offences in the Suburb or the LGA." 1. Increased risk of assaults: the Senior Member concluded that there would not be an increased risk of assaults arising from or attributable to the licence. The factor was therefore given no negative weight. 2. Increased risk of alcohol-attributable hospitalisation: noting that the statistics show the number of alcohol attributable hospitalisations in the local area is higher than the rate for the whole of New South Wales, and noting that the evidence disclosed that the risk existed, the Senior Member concluded that there was not an "unacceptable" risk from the licence; particularly having regard to the protective nature of the high socio-economic status of the suburb. The Tribunal gave this factor no negative weight and concluded at [172]: "Consequently, while this is a material consideration, I am satisfied that there will not be an increased risk of hospitalisations attributable to alcohol as a result of granting the Applicant a packaged liquor licence in respect of the Premises." 1. Increased risk of short-term and long-term health impacts: the Tribunal agreed that this raised a significant issue for consideration. The Tribunal noted the evidence that short-term harm is more likely to be associated with young people engaging in behaviour such as binge drinking, but that this was more likely to occur at a nightclub or a hotel and not at the type of premises under consideration here. Though the Tribunal accepted that insofar as long-term health impacts were concerned, there was evidence that another licence in the area will be detrimental; nevertheless, the Tribunal noted the willingness to grant the Vintage Cellars licence in the first place, and also that the Vintage Cellars licence was not currently being used, which was said to be protective in a limited way. Ultimately, the Tribunal was not satisfied with the research concerning the relationship between outlet density and high-risk drinking behaviour; regarding it as "inconsistent and of low quality": at [177]. Further, the Tribunal considered the robust socio-economic characteristics of the locale as being protective of many harms and whilst "satisfied that though there are risks associated with any amount of consumption of alcohol, the question to be posed is whether those risks are acceptable and not detrimental to the overall well-being of the local or broader community": [178]. The Tribunal ultimately concluded that the licence did "not present an unacceptable increase in the risk of short and long-term health impacts in the community": [180]. This factor therefore appears to have been given no negative weight. 2. Increased risk of consumption of alcohol in public: the Tribunal noted the evidence was inconsistent. Ultimately, the Tribunal was not satisfied how the introduction of a small bottle shop would change the current situation other than making it more convenient for customers who intend to purchase liquor to do so; and the Tribunal was not persuaded by the evidence concerning impulsive purchases. The Tribunal said, at [185]: "Accordingly, I do not consider that there will be an increased risk of consumption of more alcohol as a result of the grant of a packaged liquor licence to the Applicant with regard to the Premises." 1. Decreased amenity: the Tribunal noted, with respect to noise, pollution and disorderly conduct, that the evidence was generalised and centred mainly on noise disturbances and anti-social behaviour related to drinking, which, it was noted, are problems typically occurring later in the evening, whereas the licence was to operate in standard hours including closing no later than 9:00 p.m. The Tribunal did not consider there to be any further decrease in the amenity of the locale. Moreover, it was noted that the convenience to local consumers may be regarded as increasing the amenity. The Tribunal was therefore satisfied that the licence will not materially detract from the community. This was therefore given no negative weight: [187] 2. Decreased diversity of shops in the Woollahra village: the Tribunal considered the proposed change of use of the premises from the fruit and vegetable shop to packaged liquor outlet, but concluded it would not necessarily reduce the diversity of shops in the area, as freshly cooked food restaurants and cafés and some grocery stores are still present. Further the Tribunal noted the parties' agreement that the inclusion of a small-scale packaged outlet increased customer convenience to consumers in the community. Overall, the Tribunal gave this factor limited negative weight: [189]. 3. Inconsistency with the character of Woollahra Village: the Tribunal, whilst not satisfied the premises would be inconsistent with the character, gave the matter limited negative weight in any event. 4. Increased traffic and pedestrian congestion: the Tribunal was concerned about the use of trolleys and the first respondent submitted to a condition that it would not have trolleys available. On that condition, the Tribunal was satisfied it was unlikely there will be significant negative impacts on the well-being of the local community as it pertains to increased traffic and pedestrian congestion. This factor therefore appears to have been given no negative weight. 5. Decreased parking: the Tribunal was satisfied that the amenity of the area will not be negatively impacted by the licence. This factor was given no negative weight. 6. Adequate arrangements for deliveries and customer collections: the Tribunal formed the view that the site was in fact inconvenient; however, noted that the situation would be no different from the original use of the shop as a greengrocer. In any event, the applicant conceded to a condition that customer collections were not to occur in the rear lane. With that condition, the Tribunal was satisfied that it eliminated the potential for negative impacts. This factor was therefore given no negative weight.
Summarising the above, in determining the overall social impact of granting the licence, the Tribunal gave significant positive weight to convenience, and some positive weight to increased consumer choice and competition, and to total employment. On the other hand, the Tribunal gave some, but little, negative weight to the simple incident of increased outlet density, decreased diversity of shops in the Woollahra Village, and possibility that the premises would be inconsistent with the character of the locale. Also, the Tribunal gave no negative weight to each of the factors relating to an increased risk of alcohol-related harm, and some other negative factors submitted at first instance: increased risk of alcohol-related crime, increased risk of domestic violence, increased risk of assaults, increased risk of alcohol-attributable hospitalisation, increased risk of short-term and long-term health impacts, increased risk of consumption of alcohol in public, decreased amenity, increased traffic and pedestrian congestion, decreased parking, and inadequate arrangements for delivery and customer collections.
It followed that the Authority's decision was set aside.

[10]

Leave to appeal: approach of the parties

Before turning to each ground in turn, we pause to mention the way that the parties approached the question of leave to appeal.
The appellants relied on an Amended Grounds of Appeal, dated 14 August 2024. Leave to appeal was sought by the appellants under two discrete grounds: Ground 11 and Ground 12. Ground 12 concerns Grounds 1A, 1B, 2, 3, 4 and 6, in the event we are not satisfied those grounds raise a question of law. Ground 11 is engaged only if some error is found from determination of one or more of the other grounds; and further that the Appeal Panel considers it appropriate to, for itself, determine the issue rather than remit the matter, pursuant to s 80(3) of the NCAT Act.
The appellants do not seek leave to appeal on the bare basis that findings of fact were not open, or were perversely or irrationally made, or because the overall state of satisfaction could not rationally have been reached. Leave to appeal is tied to the alleged errors in approach.
Ground 11 provides: "The Tribunal erred in concluding that the proposed liquor store will not be detrimental to the well-being of the local or broader community: Judgement at [7] and [204]."
The particulars to Ground 11 are: "(a) The findings at [71], [50], [51], [62], [76], [77], [103], [104], [106], [115]- [117], [123], [125], [133], [136], [139]-[146], [147]-[149], [153]-[154], [158], [164]-[166], [169]-[172], [176]-[180], [187], [194], [200], [202]-[203], and [204] were made ln error. (b) However, it would only be necessary to revisit these findings and the weight that should be given to various matters, affecting the well-being of the local and broader community if the Appeal Panel was otherwise satisfied that the Judgment was affected by an error of law on any one or more of the grounds identified above and decided to redetermine the question of whether the application 'will not be detrimental to the wellbeing of the local or broader community' for itself rather than remitting the matter to be determined according to law."
By Ground 11, the appellants seek to challenge many factual findings; but only in the event that the Appeal Panel was otherwise satisfied it was appropriate to determine the statutory question itself, having found error under one of the other grounds. The appellants submitted that the factual findings are interrelated: in the event of one error, it likely infects other aspects of the Decision.
Section 80(3) of the NCAT Act provides: 80 Making of internal appeals … (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
In Yuen v Thom [2016] NSWCATAP 243, the Appeal Panel said: "[17] Subsection 80(3) of the Act provides that the Appeal Panel may, if the grounds so warrant, determine the appeal by way of a new hearing and in such a case, receive further evidence (including evidence additional to or in substitution for the evidence at first instance). Section 80(3)(b) gives the Appeal Panel the widest possible latitude for the receipt of evidence. This together with the use of the expression 'new hearing' suggests that s 80(3) is contemplating a hearing de novo, as referred to in the extracts above. However, such an appeal is conducted on such a basis only where, in its discretion, the Appeal Panel decides to conduct it as a 'new hearing' because it is satisfied that "the grounds of appeal warrant a new hearing": s 80(3)(a) of the Act. Otherwise, internal appeals to the Appeal Panel are not determined by way of a new hearing."
In contradistinction to Ground 11, Ground 12 is engaged where the Appeal Panel is not satisfied that one of the other grounds raises a question of law.
Ground 12 provides: "To the extent that the Appeal Panel determines that any of Grounds 1A, 1B, 2, 3, 4 or 6, as particularised above, are not errors o[f] law but may be errors of fact, the Appellants seek leave to appeal on those grounds."
Further, we note that even though the Authority supported the appeal in many respects, the Authority has chosen not to appeal. The first respondent identifies this as an issue that goes to leave to appeal.

[11]

Leave to appeal: submissions

The appellants' reasons for why leave should be granted are as follows: "1 If the Appeal Panel is satisfied that the Judgment is affected by an error of law on any one or more of the grounds identified above and decides not to remit the matter to be determined according to law, it will be necessary for the Appeal Panel to revisit the findings made by the Tribunal below and the weight that was given to various matters affecting the well-being of the local and broader community in order to determine for itself the application 'will not be detrimental to the well-being of the local or broader community' for the purpose of s 48(3) of the Liquor Act, 2 The appeal involves questions of principle, most notably the proper construction and application of s 45(3) and 48(3) of the Liquor Act and 62(3) and 64(4) of the ADR Act. 3 The proper construction and application of s 45(3) and 48(3) of the Liquor Act and 62(3) and 64(4) of the ADR Act are matters of public importance: the former provisions are relevant to applications for licences under the Liquor Act and the latter are relevant to applications for administrative review generally. 4 The public has an interest in the due administration of Liquor Act which is recognised in the objects of the Act which 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.' Accordingly, the appeal has a public interest component. 5 The Appellant does not require leave to appeal on Grounds 1 to 10. It is unlikely that Ground 11 or 12 would significantly add to the time and costs required to conduct the appeal. Granting leave in respect of Ground 11 or 12 would not be disproportionate to the importance and complexity of the proceedings."
The Authority supports the appellants' Ground 12 and submits that where the grounds that they support (Grounds 1A,1B, 2 and 3) do not raise pure questions of law, then leave to appeal should be granted. The Authority takes no position with respect to Ground 11 or Ground 12 insofar as it relates to Grounds 4 and 6.
We pause to emphasise that the appellants (including as supported by the Authority) do not suggest that leave should be granted on the general contention that various findings and the overall state of satisfaction were not open. Whilst it is certainly contended that the findings and overall satisfaction were not open, that is not the basis for the grant of leave to appeal. The application for leave to appeal, if necessary, is targeted. The appellants do not seek a mere re-run of the first instance proceedings.
On the other hand, the first respondent submits that the grant of leave would not be in keeping with the appellants' assurance to the Tribunal on their application to be joined as a party, that their joinder would not unnecessarily increase the hearing time. The Tribunal, in the joinder decision said, at [32]: "The Commercial Competitors reject that joining them to the proceedings would unnecessarily extend the substantive hearing contrary to furthering the guiding principle is s 36 of the NCAT Act. The Commercial Competitors contend that if they are not joined as a party, they cannot meaningfully participate in the proceedings and give effect to the legislative considerations of the impact on the community of liquor licensing which is a factor to be considered in the related legislation and affect its interests."
Other relevant submissions of the first respondent are as follows: "189. In relying on the alleged public importance of leave being granted the Appellants do not correctly apply the principle at 2 in Collins v Urban [2014] NSWCATAP 17 at [84]. This is because the decision here relates to one small liquor shop, and the factual findings in this case will not and cannot have any precedential value for later cases, being no more than findings on the evidence before the Tribunal in this case. 190. Secondly, the objects of the Act are consistent with leave being refused to an intervenor to re-agitate issues of fact on appeal when they were joined principally to provide evidence as to 'community life' at first instance."

[12]

Ground 1A: Approach to risk assessment

Ground 1A provides: "The Tribunal erred as a matter of law in its approach to risk assessment."
Several paragraphs of the decision are identified: (a) In assessing the risks associated with granting the proposed licence, the Tribunal found that: (i) "the grant of a packaged liquor licence to the Applicant would not increase the risk of alcohol-related crime (non-domestic violence) in the local or broader community"; Judgement at [160], (ii) "there would not be an increased risk of assaults arising from, or attributable to, the grant of a packaged liquor licence to the Applicant to operate a bottle shop on the Premises": Judgement at [169], (iii) "there will not be an increased risk of hospitalisations attributable to alcohol as a result of granting the Applicant a packaged liquor licence in respect of the Premises: Judgement at [172], and (iv) "the proposed packaged liquor licence would not present an unacceptable increase in the risk of short- and long-term health impacts in the community": Judgement at [180].
For convenience, we refer to these as the Particular (a) findings.
Further particulars are as follows: "(b) The evidence before the Tribunal was incapable of sustaining definitive factual determinations on those issues and the fact that the Tribunal made definitive factual findings in respect of future hypothetical events demonstrates that the Tribunal misdirected itself as to the principles that apply to the assessment of future rusks. (c) Whether a hypothetical or future event, such as the granting of a package liquor licence, will create a future risk of harm is not susceptible to scientific demonstration or proof in the same way that an event which has or has not occurred may be. Where proof is necessarily unattainable, it would be unfair to ignore altogether risks that are not established on the balance of probabilities or not speculative; see, e.g. Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. (d) For the law to take into account future risk, it must do so in terms of the probability of that risk materialising, the seriousness of the risk, the strength of any evidence in support and the relevance of the risk to the applicable statutory enquiry: CXZ v Children's Guardian [2020] NSWCA 338 at [53] per Simpson AJA (McCallum JA agreeing). (e) On the evidence, it is impossible to conclude that it is practically certain that these risks would not materialise. The failure to apply these general principles in circumstances which invited their application constitutes an error of law; CXZ v Children's Guardian's Guardian [2020] NSWCA 338 at [22] per Basten JA."
For convenience, we refer to the last mentioned particular as Particular (e).

[13]

Submissions in relation to Ground 1A

It is submitted by the appellants that the statutory task required the Tribunal to assess the increased risk of particular types of harm that may be occasioned by the licence. This is a necessary part of reaching the required state of satisfaction that the overall social impact of the licence will not be detrimental to the well-being of the local or broader community. In performing this task, the appellant, as supported by the Authority, contends that the Tribunal misdirected itself as to the principles that apply to the assessment of future risks.
The contention is that, instead of ascribing or assessing the increased risk of particular types of harm, were the licence to issue, the Tribunal determined for each factor, on the balance of probabilities, whether there was an increased risk of that particular type of harm. As the statutory question concerns the future impacts of the proposed licence, the statutory task required the Tribunal to form an estimate or assessment of the likelihood that the relevant possibility will occur; in this case, that is the increased risk of the particularised harm. It is contended that the Tribunal, instead of ascribing or assessing the increased risk, purported to determine, as a matter of fact on the balance of probabilities, whether there was a risk or not. Such an approach, whilst appropriate when determining whether or not events have actually occurred, is submitted not to be apposite here.
In support, the appellants rely on several authorities: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, Sellars v Adelaide Petroleum NL [1994] HCA 4, Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64, [1991] HCA 54 (Amann) and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506. Whilst acknowledging the different context in which those cases were determined, nonetheless the appellants submit that the logic applies here.
The Tribunal, here, is said to have fallen into the error described by Toohey J in Amann at [21] that: "as a matter of proof, if an event more likely than not to have occurred the law treats its occurrence as a certainty. But to apply that logic to the assessment of the effect of future unknown events is inappropriate."
The appellants particularly rely on the proposition from CXZ v Children's Guardian [2020] NSWCA 338 (CXZ) at [53], that the appropriate approach to taking into account future risk was to do so in terms of: 1. the probability of that risk materialising; 2. the seriousness of the risk; 3. the strength of any evidence in support; and 4. the relevance of the risk to the applicable statutory enquiry.
This is not accomplished, so it is submitted, by determining whether on the balance of probabilities or not, the risk existed. By this route, it is submitted, the Tribunal has failed to properly assess the increased risk of harm occasioned by the grant of licence. By purporting to work out whether a particular risk exists on the balance of probabilities and finding that it does not, the risk is treated as if it does not exist at all. This approach fails to appreciate the risk or underrates the risk or ignores it.
The appellants maintained that the Particular (a) findings (increased risks of alcohol-related crime, assaults, hospitalisations and short- and long-term health impacts) were incapable of definitive factual determination.
It is submitted that it was not, on the evidence before the Tribunal, open to the Tribunal to definitively determine future or hypothetical events and further it was not open to the Tribunal to determine, rationally, that there was no risk: see Particulars (b) and (e) of Ground 1A.
As mentioned, the Authority supported the appellants' contention in this regard and submitted that the Tribunal did indeed approach the task of risk assessment on the balance of probabilities and that this was an error. The Authority adds further, that Ground 1A should be upheld for the independent reason that the statutory question required the Tribunal to undertake the risk assessment on the basis that the licence "must" be refused "unless" the Tribunal was positively satisfied, overall, that the grant of the licence "will not be" detrimental to community well-being, with the applicant bearing the "practical onus" of adducing evidence to enable the Tribunal to reach that state of satisfaction. The Authority stresses that the Tribunal must reach an affirmative satisfaction of a negative proposition; and that this was, practically speaking, the first respondent's onus. In undertaking the evaluation, the Tribunal must make findings as to the causation of any impacts. Where there is any uncertainty, the satisfaction can not be reached. The Authority maintains that the Tribunal erred in failing to apply the appropriate test.
The appellants and the Authority submit that Ground 1A raises a pure question of law; but if it does not, then leave to appeal should be granted, pursuant to Ground 12.
The first respondent, on the other hand, whilst at one point, appearing to accept that the Tribunal determined the risks on the balance of probabilities, nevertheless submitted that the Tribunal did not err. It is submitted that the Tribunal indeed weighed the probability of each risk. Moreover, the first respondent submitted that the Tribunal considered the seriousness of the risk, the strength of the evidence in relation to it and the relevance of the risk to the statutory question, as evident by the analysis that precedes each of the impugned findings. It is said that the Tribunal used a probabilistic approach.
It is further submitted by the first respondent that the Tribunal has not ignored the risks; but considered them and found that they were not made out on the evidence before the Tribunal. Significantly, the first respondent does not concede that, on the evidence before the Tribunal, findings of no risk with respect to the particularised aspects of alcohol-related harm, were not open. Further, the first respondent submitted the Tribunal correctly reached the relevant satisfaction.
Critically, the first respondent maintains that Ground 1A raises a question of fact, or a question of mixed fact and law and not a pure question of law. The first respondent points to the appellants' own assertion that the evidence was incapable of sustaining the Particular (a) findings of no risk.

[15]

Balance of probabilities issue

The appellants submitted that the approach of the Tribunal was to ask itself, for each of the negative factors, whether there was an increased risk, or no risk; and to determine that question, for each factor, on the balance of probabilities. This, it is submitted, is inapposite.
The question that the statute asks is, overall, whether there will not be a detriment. Necessarily, as steps along the way to reaching that conclusion, the Tribunal must assess the risk of certain harms occurring. This, inevitably, requires some amount of prediction. Prediction as to future events is not capable of a definitive conclusion. The Tribunal's approach is said to have impermissibly discounted risk because the correct approach to risk demanded by the statutory question was not applied, thereby disclosing a misconstruction of the statute.
The first aspect of the question requires the Appeal Panel to determine the correct approach to risk assessment. The second aspect is to determine whether the Tribunal approached the task in the erroneous manner alleged. If the Tribunal erred, this would disclose an error of law; but not necessarily an error on a question of law.
If it is necessary, as it appears to be, to descend into the evidence to determine whether the Tribunal made the error alleged, then Ground 1A would not raise a pure question of law. Certainly, it would not satisfy the test of "a question of law alone". As noted in Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734, Beech‑Jones J at [40], quoted Gibbs CJ in Williams v R (1986) 161 CLR 278; [1986] HCA 88 at p 287: "... there is 'a question of law alone' if the question of law can be stated and considered separately from the facts with which it may be connected in a given case."
Additionally, there are several matters which point to Ground 1A not raising a pure question of law: 1. On its face, Particular (e) brings into play whether or not it was open "on the evidence", to find that there was no risk. This draws the Appeal Panel into the evidence. 2. Particular (e) appears to be an important premise of Ground 1A, that, on the evidence before the Tribunal, "it is impossible to conclude that it is practically certain that these risks would not materialise". Whilst the appellants' fundamental contention is that the findings are of the type that are not susceptible to a balance of probabilities approach, to prove that the Tribunal made the error alleged, the appellants submit that the Tribunal "must" have determined risk on the balance of probabilities, because it was not open to find that there was no risk, as a matter of certainty "on the evidence". 3. Even if this is raising the issue that it is impossible (or irrational) to have made the Particular (a) findings, had the correct test been used, this draws the Appeal Panel into questions whether the Particular (a) findings were irrational, which raises questions of fact. Particular (e) is not, for instance, couched so as to raise the issue of whether there was "no evidence" for the Particular (a) findings; which would raise a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at pp 367-68; [1990] HCA 33; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at p 138. 4. Particular (b) too refers to the "evidence before the Tribunal". 5. The appellants' submissions dated 30 August 2024 (AS) also refer to the evidence. For instance, at AS [38], the appellants identify that it would be an error of legal principle for the Tribunal to approach the fact-finding process in this way and to make purportedly definitive factual findings in respect of future matters not susceptible to definitive proof. Further, the appellants say at AS [38] that the evidence before the Tribunal was incapable of sustaining definitive factual determinations on whether these risks would materialise. Also at AS [38], the submission is made that the Tribunal could not have rationally excluded the possibility of increased risk "on the evidence before it and especially not because of the inherently uncertain nature of future events." The reference to what the Tribunal could do, "on the evidence" appears to draw the Appeal Panel into a factual enquiry.
On the other hand: 1. Particular (b), (despite referring to the evidence before the Tribunal) focusses on the proposition that when one is assessing risk, it is not possible to make definitive factual findings. This contention appears to be made unconnected to the evidence and is a general proposition. 2. This is mirrored in the appellants' submissions. At AS [27] it is said, in effect, that the submissions below were framed in terms of risk because the applicable statutory enquiry concerns the future impacts of a hypothetical licence which are not susceptible to scientific demonstration or proof and are inherently uncertain. The appellants submitted that it would be unprincipled and unfair to determine whether a risk which is not susceptible of scientific demonstration of proof, was likely to materialise on the balance of probabilities, rather than in terms of the degree of probability of that risk materialising: AS [37]. 3. Further, the appellants squarely recognise that when it comes to challenging the Particular (a) findings per se, leave will be required: this is the subject of Ground 11.
Nevertheless, the first two of those last-mentioned factors only go to the first part of Ground 1A: whether it would be an error to have used the balance of probabilities approach. They do not go to whether the Tribunal fell into that error.
In order to determine whether the Tribunal erred in the way alleged, the Appeal Panel is invited to consider that, on the evidence, the Particular (a) findings could not have been made, had the correct approach been used. On a plain reading of Ground 1A, Particular (e) invites an inquiry into the facts and introduces a question of fact into the mix.
The appellants submissions might be put another way: as it was not open to find, on the evidence, that there was no risk, the Tribunal's findings that there was no risk (in the Particular (a) findings) are only rationally explicable on the basis that the Tribunal was satisfied only to the standard of the balance of probabilities.
Recalling that the first respondent does not accept that the Particular (a) findings were not open on a risk assessment approach, Particular (e) supports the first respondent's contention that Ground 1A impermissibly raises a question of fact or a question of mixed fact and law.
We pause to recollect the first-respondent's apparent acceptance that the Tribunal indeed arrived at the Particular (a) findings on the balance of probabilities. However, as the first respondent also referred to the steps the Tribunal took to reach the findings, we see this apparent concession as being equivocal. Further, from the face of the Decision, we are not satisfied from these matters alone, that the Tribunal made the findings on the balance of probabilities.
In conclusion, given that the first respondent does not concede that the Particular (a) findings were not open on the evidence, the Appeal Panel appears to be invited to consider the evidence, to determine whether the findings were open, on a risk assessment approach, in order to determine whether the Tribunal fell into the error alleged.

[16]

The satisfaction issue

The Authority submitted that Ground 1A should be upheld for the independent reason that s 48(5) of the Liquor Act required the Tribunal to undertake a risk assessment; and as the test requires the Tribunal to reach a positive satisfaction that the grant of the licence will not be detrimental to the community (that is to say, the Tribunal must reach a positive satisfaction of a negative matter), if the Tribunal fails to reach that positive satisfaction, the licence may not be issued. The first respondent bears the practical onus. The Authority submitted that despite the certitude with which the Tribunal expressed the findings, the Tribunal did not approach matters this way, thereby also evincing a misconstruction of the statute. Put another way, the Authority submitted that instead of being satisfied that the licence will not be detrimental, the Tribunal was not satisfied that there will be detriment. The Authority submitted at [17]: "Despite the certitude with which the Tribunal expressed these findings, several of the Tribunal's other findings implicitly accepted that granting the First Respondent a packaged liquor licence would increase the risk of alcohol-related harms, and those findings were not counter-balanced or negated by evidence from the First Respondent sufficient to discharge its practical onus. For the reasons that follow, it was not open in those circumstances for the Tribunal to be positively satisfied that the overall social impact of the licence being granted would not be detrimental to the wellbeing of the local or broader community."
We note that the submission was couched by reference to the ultimate statutory task - the overall satisfaction. However, it was deployed with respect to Ground 1A. Ground 1A concerns particular findings, as steps along the way to the ultimate conclusion. We take it that the Authority's submission engages with the findings along the way, to reach the ultimate or overall satisfaction.
We note (as the Authority itself accepted) that the Authority's asserted error on a question of law is at odds with a plain reading of the Decision: for example, at [160] the Tribunal states: "Accordingly, while I give this consideration significant weight, I am satisfied that the grant of a packaged liquor licence to the Applicant would not increase the risk of alcohol-related crime (non-domestic violence) in the local or broader community." (Emphasis added)
Each of the other Particular (a) findings are expressed as a positive satisfaction of a negation proposition. A further example is that at [180] which is as follows: "I am satisfied that the proposed packaged liquor licence would not present an unacceptable increase in the risk of short- and long-term health impacts in the community"
To prove the error, the Authority focussed on inconsistencies in conclusions of the Tribunal rather than evidence per se. By way of example: "27. The Tribunal's acceptance of much of Professor Ryan's evidence relevant to increased risks to community wellbeing, combined with the equivocality and relative weakness of Ms George's evidence, cannot be reconciled with the Tribunal's conclusion that it had reached a positive satisfaction that the overall social impact of the licence being granted would not result in detriment to the wellbeing of the local or broader community. … 31. The Tribunal erred in regarding the inconclusiveness of the research on alcohol-related harms as a factor supporting the grant of a packaged liquor licence. For the reasons explained at paragraphs 14-15 above, if the body of literature bearing on whether granting the licence would increase risks of alcohol-attributable hospitalisation and domestic violence was indeed "inconsistent" and left the Tribunal in a "state of uncertainty", there was no basis upon which the Tribunal could positively satisfy itself that the overall social impact of granting the licence would not be detrimental to the wellbeing of the community. To the contrary, the Tribunal's "state of uncertainty" necessarily meant that the First Respondent had not discharged its practical onus."
The Authority's submissions are, in effect, that due to the inconsistencies and poor quality of the research, in evidence before the Tribunal (as disclosed in the Tribunal's reasoning), the Tribunal could not be affirmatively satisfied of the negative. This focusses on the reasoning of the Tribunal as disclosed on the face of the Decision. Nevertheless, we do not read the Authority's submissions to allow us to ignore the evidence, in determining whether this error is made out.
As the findings were expressed as the Tribunal having reached a positive state of satisfaction, we must consider whether those expressions of positive satisfaction cannot reflect what the Tribunal in fact did. To that end, the Appeal Panel may need to consider the evidence, as part of determining whether the correct statutory test was applied.

[18]

Leave to Appeal: Ground 12 read with Ground 1A

As mentioned above, this is the subject of Ground 12.
In the event that the Tribunal's risk assessment process has miscarried, then this would be a significant matter. The objects of the Liquor Act include: to facilitate the balanced development, in the public interest, of the liquor industry; to minimise harm from misuse of alcohol; and to ensure that the sale of liquor contributes to, and does not detract from, the amenity of community life. The Liquor Act starts from the premise that misuse of alcohol is a harm: s 3(2)(a) of the Liquor Act.
Here, the Decision has found no increased risk (or the risk is unlikely or not unacceptable) of: alcohol-related crime; domestic violence; assaults; alcohol-attributable hospitalisation; short-term and long-term health impacts; or, consumption of alcohol in public. This is the position, even though, as the Decision itself reflects, the Tribunal was referred to abundant evidence of the existence of various risks of harm from increased outlet density. Whilst the Decision also discloses that there was evidence that, for this particular licence, in relation to these particular premises, these risks might be ameliorated or obviated and even though the Decision, on its face, reflects a very careful approach by the Tribunal, we accept that there is some prospect of error.
The Appeal Panel considers that there is sufficient material on the face of the Decision to indicate that there is at least some prospect the risk assessment process miscarried. The Tribunal itself alluded to the inconsistent evidence.
Drawing from the Authority's submissions by way of example only: "[28] Against the background of the significant evidence of alcohol-related harms, it is unsurprising that many of the Tribunal's findings implicitly accepted that granting a liquor licence to the First Respondent would incur some level of detriment to community wellbeing. At J [171], in evaluating the evidence of Professor Ryan and Ms George in relation to increased risks of alcohol-attributable hospitalisation, the Tribunal stated that it did 'not consider that the risks identified by either social planner expert ... were unacceptably increased by granting a packaged liquor licence to the [First Respondent]' (emphasis added). The Tribunal again invoked the concept of acceptability of risk at J [178], where it reasoned that 'though there are risks associated with any amount of consumption of alcohol, the question to be posed is whether those risks are acceptable and not detrimental to the overall well-being of the local or broader community'. Similarly, at J [180], the Tribunal concluded that, 'having regard to the expert opinions of Professor Ryan and Ms George and the published research on harms', it was 'satisfied that the proposed packaged liquor licence would not present an unacceptable increase in the risk of short- and long-term health impacts in the community" … [30] The Tribunal's view that the degree of increase in harm was 'acceptable' appears to have been influenced, in significant part, by its conclusion that the evidence of alcohol related harm in the literature cited by Professor Ryan was 'inconsistent' and for that reason not deserving of significant weight. For example, in considering the increased risk of short-term and long-term health impacts, the Tribunal found that 'the research on the relationship between outlet density and high-risk drinking behaviours was inconsistent and of low quality': J [177]. In support of that conclusion, the Tribunal cross-referenced to J [89], where it noted that both Professor Ryan and Ms George agreed with the finding in a 2015 study by Livingston, Wilkinson and Room that 'the cross-sectional research concerning the effect of outlet density and high-risk drinking behaviours was inconsistent and of low quality'. Likewise, the Tribunal acknowledged 'some high-quality research that suggests a correlation between an increased number of packaged liquor outlets and increased rates of domestic violence' (J [163]), but went on to conclude, by reference to Ms George's evidence, that 'the balance of research more strongly supports the proposition that it is the size and amount of liquor sold, rather than the number of outlets, [that] has a greater causal relationship with an increase in the rate of domestic violence' (J [165])." (Emphasis added).
If the risk assessment process miscarried, there is also a risk that the licence has been issued contrary to the intention of the Liquor Act, with a concomitant risk of harm to the community having been missed. Given the importance of the issue to safety and harmony of the community, then the warrant to grant leave is made out.
The Authority supports the application for leave to appeal with respect to ground 1A.
We note that the first respondent objects to leave being granted and emphasised that the appellants are commercial competitors and should be treated akin to mere intervenors (first respondent's submissions at [189]-[190], extracted above), and notes that the Authority has not appealed the Decision.
As the errors contended go to the risk assessment process, even though facts are engaged, the issue is one of principle. The appellants have put their submissions on the basis of the operation of the Liquor Act and not their commercial interests. Relevant to the joinder decision was that, if joined, they would enjoy a right to appeal: joinder decision, [61].
Given the centrality of the Particular (a) findings, we would accept that this Ground is material. Further, we see that this ground has prospects.
For abundant clarity, as referred to above, the Appeal Panel has not approached the question of leave to appeal on the basis that the appellants (including as supported by the Authority's submissions) are seeking leave to appeal because the Particular (a) findings were not open or because the first respondent failed to discharge the practical onus and it was not open for the Tribunal to reach the states of satisfaction with regard to the findings or overall conclusion. Had we approached matters this way, we may have been disinclined to grant leave to appeal. Even though this is an important issue, in the sense that considerations of the wellbeing of the community are engaged, if the appeal is one of facts only and not framed by questions concerning the approach to risk assessment, it would have no wider application than to this case. In circumstances where the Tribunal's careful and expansive detailing of the evidence discloses a great deal of thought, we do not consider the appellants to have demonstrated more than that the Decision was arguably wrong. There may not, on balance, be the necessary warrant to grant leave. However, that is not how the Appeal Panel sees the case was put.
The Appeal Panel grants leave to appeal on Ground 1A.

[19]

Balance of probabilities

Having regard to the nature of the benefits and disbenefits, we accept the submissions of the appellants, as supported by the Authority, that these interim findings are not susceptible to being determined on the balance of probabilities. The task is to determine, for each type of harm alleged, taking into account the strength of the evidence in relation to it (including the evidence as to causes of harm and protection against harms) and the seriousness of the harm; and then to make some assessment of the level of increased risk of harm (or whether there is no increased risk of harm). If there is a possibility of increased risk of harm, it is required to be taken into account (unless the possibility is merely fanciful or negligible).
The appellants stated in their written submissions at [27]: "The Appellants' submissions were framed in terms of risk because the applicable statutory enquiry under s 48(3) concerns the future impacts of a hypothetical license which are not susceptible to scientific demonstration or proof and are inherently uncertain. The High Court has recognised in the difficulties and uncertainty associated with predicting future events in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 in the context of assessing damages for personal injury where Deane, Gaudron and McHugh JJ held that: '[I]n the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration of proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 percent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur.'"
In CXZ, Simpson AJA held (at [57]) that the task of the Tribunal in an application for a working with children check clearance is: "to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of the children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of circumstances listed in s 30."
To undertake the statutory task, here, on the balance of probabilities would turn a probability of harm into a certainty of harm and turn a possibility of harm into a certainty of no harm; when we are dealing with risks not certainties.
The statutory task is not amenable to making findings of risk on the balance of probabilities. In this regard we see that CXZ at [55]-[57], Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20, and Sellars v Adelaide Petroleum NL 179 CLR 332; [1994] HCA 4 at [19] are all relevant.
In Amann, Deane J observed at p 123 that: "The determination of future and hypothetical events is more likely to involve unavoidable speculation than the determination of what has actually happened in the past and the approach that a fifty percent probability represents a dividing line between certainty and non-existence or irrelevance would inevitably lead to injustice and a degree of absurdity if applied to the hypothetical or the future."
If the Tribunal approached the task on the balance of probabilities, we would be satisfied of error. For the Tribunal to have determined that a particular risk of harm, on the balance of probabilities, is zero and therefore treat that absence of risk as a certainty, is tantamount to discounting the risk. By way of example, if the Tribunal were satisfied that the risk of increased assaults was 49%, the Tribunal would conclude, on the balance of probabilities, that there was no risk of increased assault. This factor would be treated as neutral. It would not be treated as a disbenefit - when a 49% risk of some increase in assaults is some risk of harm. It is a disbenefit.
The question then is, did the Tribunal make that error? The appellants and Authority agree that the Tribunal took a balance of probabilities approach. The first respondent's apparent acceptance of this was equivocal. Even if all parties agreed that the Tribunal made the Particular (a) findings on the balance of probabilities (albeit the first respondent did not accept that this would be an error in approach, because the first respondent saw it as open on the evidence for the Tribunal to find that the risk was negligible or fanciful), we have formed a different view.
The Appeal Panel is in as good a position as the parties to make an assessment, as to what the Tribunal did; and we do not treat the first respondent as having conceded the point.

[20]

Whether the Tribunal use balance of probabilities to make findings on risk

From the face of the Decision, the Appeal Panel is not satisfied that the error contended for by Ground 1A is made out.
As to the finding that the licence "would not increase the risk of alcohol-related crime (non-domestic violence)" (Decision at [160]), the Senior Member considered relevant several matters, including: 1. the impact of an additional licence on incidence of crime, rather than the fact that the incidence of reported crime in the area is currently relatively low; 2. published research on outlet density and crime rates; 3. the protective effect of socio-economic advantage, which was a feature of the area; 4. save for domestic violence assaults, Woollahra has a relatively low incidence of criminal activity and offences related to the misuse of alcohol is low; and this is the case even though the area is "replete with liquor outlets both on premises and packaged"; 5. that the wider areas attracted a younger and more vulnerable crowd and that there were hotspots for vehicle theft.
We note further, that the Tribunal describes this as a matter to be accorded "significant weight" which we take to mean that the factor was important.
As to the conclusion at [169] that there would be no increased risk of assaults, the Tribunal took into account there was some evidence and an abundance of research that increased risk of non-domestic violence is correlated with hotel licences and not packaged liquor licences. Further, the Tribunal again recorded that the rate of non-domestic-violence-alcohol-related assaults in the area are lower than the rest of New South Wales.
As to the finding concerning increased risk of alcohol-attributable hospitalisation, the Tribunal noted that this was a "material consideration" and considered the statistics that indicated the number of alcohol-attributable hospitalisation in the community is higher than the rate for the whole of New South Wales. Further, the Tribunal adverted to the risks identified by Prof Ryan and Ms George and again noting that these risks were tempered with regard to the protective nature of the high-socio-economic status of the community and having regard to the small scales of the proposed premises.
As to the finding that there was no increased risk of short-term and long-term health impacts, the Tribunal: 1. outlined the differences in risk for short-term versus long-term harm; 2. noted that short-term harms are more likely to be associated with young people engaging in binge drinking and is more associated with hotels and nightclubs; 3. accepted it as possible for anyone to be injured while drunk; 4. noted with respect to long-term health impacts, that the community which was made up of affluent and older residents, whose characteristics tended to exceed alcohol guidelines, and who therefore may be susceptible to long-term health harms such as heart disease and mental illness; 5. took into account the Vintage Cellars licence (which is the subject of another ground); 6. noted the research and relationship between outlet density and high-risk drinking was inconsistent and of low quality; 7. noted the robust socio-economic characteristics of the community are protective, despite the risks associated with any amount of alcohol consumption; 8. recorded her disagreement with the appellants' submission that even a small increase in the chance of death from alcohol poisoning was significant; 9. acknowledged that it was an important issue which she would have given considerable weight to, had she thought there was an unacceptable increase; and 10. referred back in particular, to the opinions of Prof Ryan George and published research on harms.
What can be said about each of these findings is the following: 1. Prior to embarking on the particular analysis, the Tribunal gave a comprehensive review of the evidence before her; including where she had some concerns or was not somehow satisfied with the evidence. 2. The Tribunal identified the relevant objects and relevant provisions of the Liquor Act and there is no basis to conclude that she did not have regard to the objects of the Liquor Act, including that each person who exercises functions under the Liquor Act, is required to have due regard to several matters including relevantly "the need to minimise harm associated with misuse and abuse of liquor including harm arising from violence and other antisocial behaviour": at [11]. This suggests that the Tribunal had, at the forefront, the proposition that misuse and abuse of liquor is indeed harmful and that to secure the objects of the Liquor Act the Tribunal must have due regard to that proposition.
Further, and without seeking to put a gloss on the Senior Member's analysis, the Tribunal's conclusions (noting that there was targeted reasoning for each of the Particular (a) findings) that there was no increased risk of harm or no unacceptable increase in risk, would appear to be supported by the Tribunal's conclusions regarding the following: 1. the seriousness of the type of harms; 2. the state of the research and her analysis of it; 3. the scale of the proposed store and the conditions on restricted opening hours; 4. the fact that the community had already reached a certain density of outlets; 5. the fact that the community gained some protection from harms due to socio-economic factors; 6. that the local community was made up of 'older' residents, which also provided some immunity (albeit this came with its own risks); 7. that the local community has a low representation of vulnerable people, the unemployed and people on low incomes; and 8. that the community records low rates and densities of crime, including alcohol-related crime.
Rightly or wrongly made, the Particular (a) findings, follow from the Tribunal's reasoning.
Tellingly, not once throughout the careful and thorough Decision does the Tribunal use the expression "balance of probabilities".
Significantly, each of the Particular (a) findings is preceded by an analysis of the seriousness of the consideration and the evidence which supports the Senior Member's conclusion of no risk.
From the face of the Decision, we reject the contention that the Tribunal made the Particular (a) findings on the balance of probabilities.
We have, ultimately, not found it necessary to descend into the evidence, as foreshadowed might be necessary. This is for the reason that even if those conclusions were incorrect and not open on the evidence (as the appellants and the Authority submit) that would mean that there was an error of fact. It does not necessarily mean that the error of fact was made (assuming there to be error) because a balance of probabilities approach was adopted. Even if there was error in the findings, this does not mean that the error must have been made because the balance of probabilities was applied to an assessment of risk. It may simply mean there was some other error in the fact-finding process.
We reject the proposition that if the findings were indeed not open on the evidence, on a risk assessment approach, then that would necessitate the conclusion that a balance of probabilities approach was adopted. If there was error, it might simply mean that the Tribunal made an error in assessing the risk. An error in fact findings might be described as perverse, or not open; but it does not mean that the finding of fact was made on the balance of probabilities. Even if the findings were indeed irrational, this would not necessitate a conclusion that they had been made on the balance of probabilities. They might simply be wrong.
We reject the contention that the Tribunal determined the risk of harm on the balance of probabilities; as opposed to determining the probability of that risk materialising, considering the seriousness of the risk, the strength of any evidence in support and the relevance of the risk to the applicable statutory enquiry to determine the level of risk or level of disbenefit to the factor (that is to say, the risk assessment approach).

[24]

Ground 1B: Failure to take into account community views

Ground 1B provides: "The Tribunal erred as a matter of law in its approach to community attitudes."
The particulars to Ground 1B are as follows: "(a) In assessing the views of the community, the Tribunal found that 'Overall, I do not find the evidence of community support or opposition to be particularly persuasive or reflective of community views. The material captures the views of some members of the community, but by no means all or even a majority. Accordingly, I am unable to make any finding with respect to this issue' (emphasis added [by appellants]); Judgment at [131]. (b) Properly construed, this reasoning indicates that the Tribunal did not have regard to the views of the community because the Tribunal was not satisfied that they represented the views of "all or even a majority" of the members of the community. (c) However, in determining whether to grant the proposed license the Tribunal was required to have regard to: (i) 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': Liquor Act, s 3(2)(c), and (ii) 'any other matter the Authority is made aware of during the application process, including, for example, by way of reports or submissions', including the 'concerns the local community may have about the relevant application': Liquor Act, s 48(3)(c) and 48(1)(d). (d) The focus of the relevant statutory criteria in s 48(3) of the Liquor Act is the 'wellbeing of the local or broader community'. (e) The Appellants adduced evidence of community concerns about the application from local residents (Sheree Jonathan, Catherine Officer, Nicola Grieve, Richard Haigh and Alan Goulburn), the operators of other licensed venues in the area (William Cooney, Alister Campbell and Theodoras Georgas), a local Councillor (Luise Elsing), the head of a community/residents group with an interest in the amenity of the relevant local area, the Queen Street and West Woollahra Association (QSWWA), members of the QSWWA and signatories of a petition. (f) The applicable statutory criteria did not require that the evidence capture the opinions of 'all or even a majority' of the members of the community an, on the contrary, required the Tribunal to have 'concerns the local community may have about the relevant application' even if they were not concerns shared by 'all or even a majority' of the members of the community. (g) The Tribunal's failure to have regard to the overwhelming weight of the views of the local community on the evidence (because the Tribunal was not satisfied that they were representative all or even a majority' of the members of the community) constitutes a failure to have regard to a mandatory relevant consideration and/or irrational reasoning, both of which are errors of law. (h) Further, the Tribunal's finding demonstrates that the Tribunal misconstrued the requirements of ss 3(2)(c) and 48(3)(c) of the Liquor Act and asked itself the wrong question, which is also an error of law."

[26]

Determination of Ground 1B

The objects of the Liquor Act 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." The objects also include to facilitate the balanced development, in the "public interest" of the industry. Further, each person who exercises functions under the Liquor Act is required to have due regard to the "need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, contributes to, and does not detract from, the amenity of community life".
Section 48(1) of the Liquor Act provides for a process whereby the Authority may consider the impact of certain licences on the local community, including by providing a process under which the Authority is made aware of the views of the local community.
The Appeal Panel is satisfied that in exercising functions under the Liquor Act, which the Tribunal was indeed doing, the Tribunal was required to have regard to community expectations and aspirations and the effect of amenity on community life. It is convenient to describe these factors as "community views". The first aspect of Ground 1B is therefore made out. We do not consider that there was any real dispute about this.
However, as to the second aspect. Whilst the statutory task requires the Tribunal to take into account community views, ultimately, the way that the Tribunal does so, may take several different forms.
The appellants contend that the Tribunal nevertheless erred in its approach to determining community views. The essence of the appellants' complaint is that the Tribunal was looking for a consensus view before taking community views into account when it ought to have been expected that there would be a plurality of expectations and views in the community and that the Tribunal could and should have made findings about community views to the extent that there was evidence about that. The Tribunal should have regarded what evidence there was about community views. What the Tribunal was entitled to determine was the weight to attribute to the evidence, but it was not entitled to disregard it, even though there was no consensus view. Certainly, it is submitted, the Tribunal should have taken into account the evidence from members of the local community who "cared enough to make submissions or give it evidence." Further, the appellants maintain that in disregarding something less than a consensus view, the Tribunal asked itself the wrong question.
The Authority supported the appellants' submissions and submitted further that the Tribunal impermissibly read into "the views of the local community" in s 48 of the Liquor Act, words of limitation to the effect that community concerns must be held by a majority. It was submitted that the views of the (non-trivial portion of the) local community were ignored. There is nothing in the text, context or purpose of s 48 to limit the consideration. Due consideration must be given to considering the views of the community. Further, as a mandatory consideration, there is no discretion to ignore community views that are not reflective of majority views. Further still, it would set an insurmountable hurdle to require community views to be majority or consensus. Whilst obtaining the views of the local or border community may be difficult, and the evidence may be unreliable or not sufficient, it is not possible to ignore it. Here, the Tribunal impermissibly gave the material no weight.
On the other hand, the first respondent maintains that the Tribunal clearly had regard to all the evidence before it of the community views; therefore, it cannot be said to have failed to have regard to it. Further, the first respondent submitted that the Tribunal did not ask itself the wrong question.
Having regard to the way in which the Tribunal approached this, as extracted above, we are satisfied that the Tribunal indeed had regard to the evidence of community views, in the sense of being fully alive to the evidence.
The appellants identified that what is required is due regard to the statutorily identified matter. We note that "due regard" must be had to the considerations identified in the objects: s 3, Liquor Act. This, as the submissions were put, required the Tribunal to treat the community views as they appeared and not search for a consensus or majority view.
The evidence of the disparate views of the community so far as the local community is concerned was given no weight. The question is whether no weight was given because the local community views did not express a majority or a consensus.
The Tribunal said at [131] in relation to the evidence of residents and customers that "I am unable to make any findings with respect to this issue". The question for the appeal is whether this was for the reason that there was not a majority view, or for some other reason.
The Tribunal said at [126]: "Obtaining the views of the local or broader community is a difficult task, and recourse to petitions can be a fraught and unreliable exercise: see, for example, the Tribunal's observations in Adamson at [30]-[35] and North Coast Property Holdings Pty Limited v Independent Liquor and Gaming Authority [2024] NSWCATAD 98 at [35]-[36]. Unsurprisingly, in this case, the various and conflicting petitions and other community evidence point in different and often opposite directions."
Viewed in totality, we are satisfied that the Tribunal regarded community views as a neutral factor, not because of the absence of a consensus view, but for the reason that there were views going both ways, some in support and some opposed; and because other arguments, such as in relation to the Community Strategic Plan Woollahra 2032 were rejected.
It was simply a neutral factor. We decline to read the Decision as if the Tribunal was saying that anything less than a majority or consensus view did not represent the views of the community and so should not be taken into account for that reason.

[28]

Does Ground 2 raise a question of law?

Ground 2 provides: "The Tribunal erred as a matter of law by misconstruing the requirements of s48(3) of the Liquor Act by comparing the impacts that the proposed liquor store would have with the impacts of a larger liquor store that had been approved." (Underlining in original)
The Tribunal was required to be satisfied that "the overall social impact of the licence … will not be detrimental to the well-being of the local or broader community". The appellants submit that a significant step in the reasoning process leading to the Tribunal's view that, overall, there would be no detriment from the licence, was that the Tribunal took into account the dormant Vintage Cellars licence. This indicates, so it is submitted, that the Tribunal allowed itself to be "distracted" from the statutory question and to have regard to an irrelevant consideration, by considering the relative harms under the two different licences; rather than the absolute harms from the licence.
However, there are other potential ways to construe Ground 2.
The appellants refer to the Vintage Cellars licence as an "irrelevant consideration". The use of the language "irrelevant consideration" is language apposite to the exercise of the discretion, relating to a prohibited consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 pp 39-40; [1986] HCA 40. We do not read Ground 2 as raising the question of whether comparison of licences is "prohibited" by the statute. In oral submissions they explained that this was a reference to it being incapable of affecting the statutory question and the existence of the Vintage Cellars licence being of no probative value to the assessment of harm that the Tribunal was required to make.
This suggests that Ground 2 raises whether the Particular (a) findings were arrived at irrationally, on the basis that there could be no utility in the comparison; particularly where, so it is was submitted, there was no evidence or no sufficient evidence of the details of the particulars of the Vintage Cellars licence and circumstances surrounding its approval in the first place.
Said this way, Ground 2 would appear to raise the question of whether it is irrational to compare licences. However, even a perverse or irrational finding of fact, generally only raises a question of fact: Thomas and Naaz at [53].
Further, Ground 2, particular (a)(vi) is as follows: "There was no evidence of the relationship between size of liquor store and the volume of liquor sold generally and specifically with respect to the proposed liquor store. Nor was there any evidence about whether any correlation related to a store's trading area or overall area."
However, the Appeal Panel does not see this as raising a traditional "no evidence ground".
The first respondent's submission is that Ground 2 raises an impermissible challenge to the factual findings which the Tribunal made as steps along the way to the overall conclusion.
The Appeal Panel is not satisfied this Ground raises a question of law with sufficient particularity.

[29]

Leave to appeal: Ground 2 read with Ground 12

Ground 2 concerns the use to which the Tribunal put the approval of the Vintage Cellars licence. The first respondent submitted that the Decision is confined to its facts and not of wider import. However, this issue goes to the risk assessment process adopted by the Tribunal. As this issue goes to how one determines individual risks and the relevance of comparisons, it has wider application than just for this matter. Ground 2 raises an important matter of principle.
For the reasons in relation to Ground 1A, we treat the appellants as parties and not intervenors (who were not joined as parties).
Further, we are satisfied that Ground 2 has prospects: the Tribunal was, (at least after making the findings), bolstered or supported in the ultimate conclusion about the licence, from the fact that the Vintage Cellars licence was approved. If that is all the Tribunal has done, there may be no error. However, there are references to Vintage Cellars throughout the Decision, which warrant further consideration. The appellants submitted at AS [76]: "The following findings suggest that the Tribunal's conclusion in relation to this was based in significant part on the Tribunal's view that the proposed liquor store would not be as harmful as the Vintage Cellars store, which was larger, for which a licence had been granted: (a) 'It is relevant to note … that the proposed outlet would occupy a space of 61 sqm (though there was some debate about whether this was the actual size or only the trading area size) but that, by comparison, Vintage Cellars had been granted a packaged liquor license to operate and outlet almost directly across the street from the proposed site in premises covering 215 sqm (i.e. more than three times the area'). However, the relative size of the proposed liquor store to the Vintage Cellars store is not relevant to the question of whether the proposed liquor license would be 'not be detrimental to the wellbeing of the local or broader community' for the purpose of s 48(3). (b) '[T]he proposed bottle shop is a modest size, it will not be open late at night, and it will not be offering home delivery (unlike at least one of the other Existing Bottle Shops); therefore, it is safe to infer that the scale of its operation is less likely to be harmful than a large bottle shop that operates a significant scale and turnover and is open for business for long periods into the night.' However, the fact that the proposed liquor store may be less 'less likely to be harmful than a large bottle shop' does not mean that it will not be harmful. (c) '[T]he [License] Applicant's proposal is for a shop that is part of a small chain of stores trading under the Georges Cellars brand that have been effectively owned by a single-family operation (compared with a large retailer) and which is, regardless of the controversy over the calculated area, significantly smaller than the store that was approved by the Authority under the Vintage Cellars License in an almost identical location'. Again, this suggests that the Tribunal was distracted by the relative size of the proposed liquor store, rather than determining the Application on its merits. (d) When considering whether the proposed liquor store would result in an increased risk of short and long-term health impacts, the Tribunal found that it was 'prepared to take into account the fact that the Council was willing to grant the Vintage Cellars License, which would have involved a much larger-scale store'. However, the mere fact that the Council was willing to grant development consent for a liquor store on 2 December 2014 has no rational connection with whether the proposed bottle shop 'will not be detrimental to the well-being of the local or broader community'. The Tribunal appears to have assumed that the proposed license would not be detrimental because development consent had been granted in respect of a larger store, but that assumption was not open to the Tribunal. (e) The Tribunal was critical of Councillor Elsing's evidence (at [106]) regarding why the Council granted development consent to the development application by Vintage Cellars but opposed the License Applicant's application for a license in circumstances where the reasons why the Council approved that development application are irrelevant to whether the proposed liquor license would be 'not be detrimental to the wellbeing of the local or broader community' for the purposes of s 48(3). (f) There was no probative evidence of the relationship between size of liquor store and the volume of liquor sold, either generally or specifically with respect to the proposed liquor store. Nor was there any evidence about whether any correlation related to a store's trading area or overall area."
The appellants submit that from the foregoing we would be satisfied that these comparative findings were material to the Tribunal's reasoning and affected the ultimate conclusions reached. The Authority endorses that submission.
On the other hand, the first respondent's submission is that it was entirely appropriate for the Tribunal to have regard to the Vintage Cellars licence and that in any event, it did not play a significant role. The first respondent submitted: "[130] Fairly read, as a whole, the Tribunal did not undertake a purely comparative assessment of harms relevant to the Vintage Cellars Store. Reference to the Vintage Cellars licence was made to reinforce findings made by the Tribunal on the merits of the proposed liquor store. … [102]: The Vintage Cellar licence was only one element of the evidence and it was quite incorrect to characterise any comparison with the level of harm that would be caused by the Vintage Cellar store (if operational) as a significant part of the basis for the Tribunal's s48(5) finding. The Tribunal observed that the Vintage Cellar licence, although dormant, was to be taken into account as a factor against the application as far as licence density was concerned: [76], [124], [66], [153] J. … [120]: It was therefore appropriate, and required as a matter of fairness to the First Respondent, for the Tribunal to consider questions of scale relevant to other licensed premises, including the Vintage Cellars licensed premises. The Tribunal did not err by referring to the relative size of other premises in considering the scale of the proposed Ice Box Store. Considerations of the scale of the proposed liquor store are undoubtedly relevant to the question of whether the proposed liquor licence would or would not be detrimental to the well-being of the local or broader community. Considerations of scale can only be understood in relative terms. Both the applicant and the commercial appellants framed their evidence and arguments by reference to size relativities, as did the ILGA's officers and ILGA itself in handing down its original decision."
Notwithstanding the respondent's submissions, the Appeal Panel is satisfied that this ground has prospects and as the matter raises an important point of principle, there is warrant to grant leave to appeal.
Leave to appeal on Ground 2 is granted.

[31]

How did the Tribunal use the evidence about the Vintage Cellars licence?

The Vintage Cellars licence was granted about 10 years ago and has never been deployed. However, as correspondence from the Coles group indicated, the Vintage Cellars licence was still intended to be deployed by Coles "soon" (Decision at [97]); albeit, the development application of the original site had lapsed and the current use of the premises would preclude a liquor outlet. Correspondence with Coles Group reveals that, if the licence is to be used, its intended use is in conjunction with a Coles supermarket.
The appellants did not cavil with the Tribunal's approach to including the Vintage Cellars licence in determining the overall outlet density.
The Tribunal, at first instance referred to the Vintage Cellars licence as follows (omitting some references with respect to outlet density): 1. At [25] of the Decision, the Tribunal noted: "In respect of that application, the police had not made any similar grounds of objection to a much larger packaged liquor outlet proposed to be located almost directly opposite the Applicant's site; the only conditions sought to be imposed by police for that proposal being the installation of a CCTV camera system and adherence to a plan of management." 1. At [56], the Tribunal noted the evidence of Mr Macdonald, who is a town planner, as follows: "Mr McDonald also stated in his first report that the scale of the outlet is a relevant consideration for the Authority under Guideline 6, though scale cannot, in my respectful opinion, relate only to the size of the premises but the intensity and extent of the business likely to be conducted there. However the size of the premises may tend to indicate the scale or intensity of the operation. It is relevant to note, as Mr McDonald states, that the proposed outlet would occupy a space of 61 sqm (though there was some debate about whether this was the actual size or only the trading area size) but that, by comparison, Vintage Cellars had been granted a packaged liquor licence to operate and outlet almost directly across the street from the proposed site in premises covering 215 sqm (i.e. more than three times the area)." 1. At [74], the Tribunal considers the conflicting evidence of Ms George and Professor Ryan as to whether the dormant Vintage Cellars Licence should be taken into account in relation to outlet density of the area; but goes further. At [75] the Tribunal said: "Here, the Vintage Cellars licence, having been granted, has never been used and the site in respect of which it was granted has been converted to a different use. This, in my respectful opinion, is a relevant consideration on the ultimate issue but not a relevant question on the issue of outlet density." 1. At [76] the Tribunal reiterates that the Vintage Cellars Licence will be taken into account in calculating outlet density. We pause to reiterate that no issue has been taken with the use of the dormant licence in calculating outlet density for the area. 2. At [98] the Tribunal identified that that evidence indicated that the Vintage Cellars outlet was "three and a half times the size of the" premises (and we pause to note that there was some dispute about this) and yet there was evidence before the Tribunal that the Woollahra Council had given development consent and the NSW Police Force had made no objection. 3. At [106] the Tribunal records that the evidence from a councillor, who occupied the position when the Vintage Cellars licence was approved, would not be drawn into the details. The Tribunal said of her evidence: "Her response, in global terms, was that each decision was considered on a case-by-case basis on its merits. Ms Elsing's evidence on that topic was glib and unhelpful to the Tribunal, as had there been an adequate explanation for the different approaches adopted by Council between the Applicant's proposal and that of the Coles Group for a store three and half times the size, then the Tribunal would have been greatly assisted to have known what that was - particularly having regard to the grounds of objection voiced by the Council to the Authority to the present application." 1. At [132] the Tribunal said: "Professor Ryan opines that the Community Strategic Plan Woollahra 2032 is a good indicator of community expectations, needs and aspirations. If that were the case, such a plan would have to have countenanced the Vintage Cellars Licence as part of the mix. It is clear that the Vintage Cellars Licence if it is to be used at all, will be located elsewhere. Professor Ryan does not account for how that licence, compared to a smaller-scale operation as proposed by the Applicant, would have met the aspirations or community expectations of the strategic plan. It would seem obvious that a small store, nestled between existing and complimentary retailers, would be in greater conformity with the strategic plan than the Vintage Cellars Licence proposal - and yet that was, apparently, wholly approved by Woollahra Council some years ago." 1. At [133] the Tribunal said: "As I note elsewhere, however, I consider the fact that the Vintage Cellars Licence was approved and had been dormant for a decade as being relevant to questions of amenity and community expectations." 1. At [145] the Tribunal considers the effect of the Vintage Cellars licence on competition, noting it is dormant. We do not see this aspect of the use to which the Tribunal puts Vintage Cellars to be in issue. 2. At [153] the Tribunal confirms use of Vintage Cellars on the question of density and takes it into account (reiterating that this is not something that is objected to). 3. Relevantly, the Tribunal discussed Vintage Cellars at [165]-[166]: "[165] However, having reviewed the published literature, I have concluded, consistent with Ms George's evidence, that the balance of research more strongly supports the proposition that it is the size and amount of liquor sold, rather than the number of outlets, has a greater causal relationship with an increase in the rate of domestic violence. In that regard, the Applicant's proposal is for a shop that is part of a small chain of stores trading under the Georges Cellars brand that have been effectively owned by a single-family operation (compared with a large retailer) and which is, regardless of the controversy over the calculated area, significantly smaller than the store that was approved by the Authority under the Vintage Cellars Licence in an almost identical location. [166] Accordingly, and giving this consideration significant weight, I am satisfied that the packaged liquor licence, as proposed for the Premises, is unlikely to increase the risk of domestic violence offences in the Suburb or the LGA." 1. At [176], with respect to increased risk of short-term and long-term health impacts: "With regard to this consideration (as opposed to the question of density), I am prepared to take into account the fact that the Council was willing to grant the Vintage Cellars Licence, which would have involved a much larger-scale store. The absence of any use of the Vintage Cellars Licence is relevant when considering whether an additional packaged liquor licence would be detrimental to the short-term and long-term health of the local and broader community. The absence of that licence being used is, in my view, protective and assists the Applicant's position in this limited way."
It is apparent that the Tribunal was troubled by the lack of details regarding the differences in institutional approach as between the granting of the Vintage Cellars licence and the objections and refusal to grant the licence: in particular, the Police's lack of objection, and why the Council's response to the two licences differed, and ultimately the Authority's issuance of the Vintage Cellars licence but refusal to issue the licence. This concern of the Tribunal was not unwarranted. On its face, the granting of the Vintage Cellars licence could appear to be at odds with the refusal to grant the licence.
It is apparent from the review of the Decision that the Tribunal relied on the existence of the Vintage Cellars licence in several ways. This included, by way of cross check or as self-assurance for the Tribunal's findings in relation to the lack of various disbenefits. Further, the perceived inconsistent approach and lack of details with respect to the Vintage Cellars licence was used to assist in determining which witnesses to prefer over others.
However, it is also apparent that the approval of the Vintage Cellars licence has encroached on the Tribunal's assessment of risks of harm under the licence, as well as to community views. The review indicates that the Tribunal has operated on the premise that the store contemplated under the Vintage Cellars licence was larger and seemingly more negatively impactful than the store contemplated under the licence. The fact that this larger store was approved by Council and the Authority and not objected to by the NSW Police Force, affected the Tribunal's thinking.
The real question is whether this demonstrates error.
For the reasons that follow, the Appeal Panel has concluded that this was indeed an error.
With respect to individual risks of harm, it might be inferred from the fact that the Vintage Cellars licence was granted that, a decade ago, the weighing up exercise of benefits and disbenefits supported the issuing of that licence. The result from an overall evaluation that the decision maker was satisfied that the Vintage Cellars licence will not be detrimental to the community, does not speak to whether, in relation to a smaller store opening a decade later, risks of individual harms do not exist, or would be acceptable.
With respect to the Vintage Cellars licence, there may have been countervailing benefits to identified risks. This does not mean that the individual risks, seen on a standalone basis, were "acceptable" or somehow quantifiable. The risk in relation to an individual harm or disbenefit is not discernible from an overall assessment. Put another way, in the case of a smaller store, it does not necessarily follow that the individual risks are nil or acceptable, simply because a licence for a larger store was granted.
The statutory task of the Tribunal requires, first, an assessment of the individual plusses and minuses for the granting of the licence. The fact that, in any particular case, on a net position, the result was to issue the licence, does not without more, tell the decision maker about the assessments of the individual risks with respect to a different licence.
Here, despite an apparent lack of details as to the reasons why the Vintage Cellars licence was approved by Council and the Authority and not the subject of objection by the Police, the Tribunal appears to have considered the Vintage Cellars licence to have posed more risk of particular types of harms, or a more significant negative impact from particular disbenefits, than would the licence. That may indeed be correct; but it does not follow that granting this licence would pose none of the risks identified, simply because the Vintage Cellars licence was ultimately granted.
In circumstances where the Vintage Cellars licence was issued a decade ago and was part of a proposal along with a Coles supermarket and where the impact of size of an outlet may be tempered by other factors such as trading hours and further, where there was a lack of details as to why the Vintage Cellars licence was approved, we consider that a comparison of licences does not assist to answer the statutory question. Overarchingly, whilst we note that the Tribunal was not provided with reasons for the differences between the current approaches by the Police, the Council and the Authority, to the approaches taken to the Vintage Cellars licence, and this absence of explanation, understandably, weighed on the Tribunal, we are satisfied that a comparative approach between licences, is not what the statutory task calls for.
First, if this were the approach, then it would be necessary to take into account all previous approvals, including operating licences; taking into account relevant changes.
Second and more significantly, simply because the risks in one case are ultimately tolerated as evidenced by the issuing of a licence, does not mean that there are no risks in another case. The risks may have been tolerable, not because, objectively, they were negligible or not unacceptable; but because of countervailing positive benefits.
The statutory task asks the Tribunal to assess, at the relevant time, the individual risks of harms from the proposed licence and weigh that up against benefits from that particular licence. That is not achieved by comparing the characteristics of the premises under the licence with characteristics of another licence where there was previously reached an overall satisfaction that that other licence will not be detrimental to the community.
The Appeal Panel is satisfied that a comparison of the licence to the Vintage Cellars licence holds no probative value in working out whether there is an increased risk of the individual harms and in so doing, the Tribunal fell into error. Accordingly, the statutory task miscarried.
We pause to note one other matter exemplified at [178] in the section headed: Increased risk of short-term and long-term health impacts. The Tribunal said: "I am satisfied that, though there are risks associated with any amount of consumption of alcohol, the question to be posed is whether those risks are acceptable and not detrimental to the overall well-being of the local or broader community."
Ultimately, the Tribunal was satisfied that there was not an unacceptable risk. At [180] it was said: "I am satisfied that the proposed packaged liquor licence would not present an unacceptable increase in the risk of short- and long-term health impacts in the community."
If the Tribunal was at [178] and [180] suggesting that for each risk it was necessary to weigh up the risk against benefits to find "overall" if the risk was acceptable, that was an error. The statutory task, so far as increased risk of short-term and long-term health impacts is concerned, was to determine the level of risk for each identified potential harm and then weigh all the benefits and disbenefits. The task was not to be satisfied of whether a particular risk was, "overall" (or all things considered), acceptable. The first step requires the Tribunal to identify absolute risks of harm. It is not until the second step that the overall effect on the community comes into play.

[32]

Ground 3: Vintage Cellars - risk of domestic violence in the local and broader community

Ground 3 provides: "The Tribunal erred as a matter of law by asking itself the wrong question when considering whether the proposed liquor store would increase the risk of domestic violence in the local and broader community."
The particulars provide: "(a) The Tribunal found (at [165]) that "it is the size and amount of liquor sold, rather than the number of outlets, [that] has a greater causal relationship with an increase in the rate of domestic violence' and concluded (at [166]) that the proposed liquor store 'is unlikely to increase the risk of domestic violence offences in the Suburb or the LGA' because 'the Applicant's proposal is for a shop that is part of a small chain of stores trading under the Georges Cellars brand that have been effectively owned by a single family operation (compared with a large retailer) and which is, regardless of the controversy over the calculated area, significantly smaller than the store that was approved by the Authority under the Vintage Cellars Licence in an almost identical location': Judgment at [165]. (b) The proposed liquor store's size relative to the size of the 'the store that was approved by the Authority under the Vintage Cellars Licence' is an irrelevant consideration. (c) Further, there was no evidence that the scale of the Vintage Cellars Licence store was the relevant baseline for assessing the acceptable scale of a proposed liquor store. (d) Even if the detrimental impacts of the proposed liquor store would be fewer in number or less severe than the detrimental impacts associated with a larger store, that is irrelevant to question of whether the relevant application will not be detrimental to the wellbeing of the local or broader community for the purpose of s 48(3). The fact that the Tribunal took the comparison into account is demonstrative of the fact that it asked itself the wrong question. (e) In the premises, the Tribunal applied the wrong test and/or failed to apply the correct test when purporting to grant the licence, and had regard to an irrelevant consideration, which are errors of law."

[35]

Determination of Ground 3

The Tribunal concluded with respect to domestic violence in the local and broader community as follows: "[165] However, having reviewed the published literature, I have concluded, consistent with Ms George's evidence, that the balance of research more strongly supports the proposition that it is the size and amount of liquor sold, rather than the number of outlets, has a greater causal relationship with an increase in the rate of domestic violence. In that regard, the Applicant's proposal is for a shop that is part of a small chain of stores trading under the Georges Cellars brand that have been effectively owned by a single-family operation (compared with a large retailer) and which is, regardless of the controversy over the calculated area, significantly smaller than the store that was approved by the Authority under the Vintage Cellars Licence in an almost identical location. [166] Accordingly, and giving this consideration significant weight, I am satisfied that the packaged liquor licence, as proposed for the Premises, is unlikely to increase the risk of domestic violence offences in the Suburb or the LGA."
The first respondent makes similar submissions to that in relation to Ground 2. In particular that the evidence was before the Tribunal and it would have been wrong to ignore it, that the comparison is logical, and that it was only a very small part of the ultimate determination.
The appellants maintained that it is sufficient if the Tribunal gave this factor some weight even if it was not made a determinative factor, in circumstances where it was not capable of affecting the question at all.
The first respondent maintains that the Tribunal considered the relevant literature linking licence density and consistently with that evidence found that the size and amount of liquor sold rather than the number of outlets had the greater causal relationship with the incidence of domestic violence. Fairly read, it is submitted that the point being made by the Tribunal is that based on the research and evidence before her, a small shop forming part of a small chain is only at low likelihood of causing an increase in domestic violence rates. The Vintage Cellars comparator simply helped the factual analysis and was not treated as a reason for granting or not granting the licence itself.
The Appeal Panel is satisfied that the Tribunal's assessment of risk was influenced by the underlying view that the Vintage Cellars licence was granted. which for the reasons expressed in relation to Ground 2, was in error.

[38]

Determination of Ground 4

At the heart of this ground is whether the Tribunal failed to appropriately consider the appellants' submission that the additional convenience was only minor. The appellants maintained that although the parties superficially agreed that the proposed store would increase convenience, this disregards the substantial disagreement as to the extent of any increased convenience.
The Tribunal records the written submission of the appellants, that increased convenience is a benefit to which little, if any, weight should be given: [134]. It may be accepted that the Tribunal did not record the totality of the submissions on this point. However, the particular submission that has been identified, was one that the Tribunal disagreed with, for reasons expressed: namely, the Tribunal was satisfied that given the central location and other features, there was an increase in convenience. It was not necessary to expressly record the Tribunal's disagreement with the submission.
The Tribunal stated at [136]: "Increased convenience is the only factor that all parties agree is a benefit of the proposed liquor outlet. It is manifestly true that the central location of the proposed premises relative to the neighbourhood and other retailers and services, as well as relatively convenient, high-turnover access to car parks, make convenience a significant factor in favour of the Applicant's proposal for a packaged liquor licence. It is readily capable of being inferred that consumers who live or work in the local community and who are shopping at the butcher, fishmonger, delicatessen, cooked chicken shop or takeaway restaurant would find being able to make purchases from a bottle shop in the same area convenient and desirable. Accordingly, I afford this factor significant weight."
The Tribunal is here expressing disagreement that the increase in convenience is only minor. Accordingly, we do not consider that this aspect of the appellants' submissions was disregarded.
We note that this factor was given significant weight and in circumstances where there were, effectively, no or very small negative factors, this particular finding looms large. Nevertheless, we are not satisfied that the error on the question of law complained of by the appellants is made out.

[39]

Ground 6: Employment opportunities

Ground 6 provides: "The Tribunal erred as a matter of law by finding (at [149]) that the proposed liquor store would create employment opportunities without considering whether any other business that could operate at the premises would create the same or more employment opportunities and by failing to consider the submission that the proposed liquor store would not result in a nett increase in employment opportunities."
The particulars to Ground 6 are as follows: "(a) The Tribunal found that the 'modest' 'creation of employment opportunities' was 'a factor in favour of granting the Applicant a packaged liquor licence': Judgment at [149]. (b) In the proceedings below, the Appellants submitted that the question of whether employment opportunities will be created requires a comparison between the employment opportunities that would exist if the licence was granted and the employment opportunities that would exist if the licence was not granted, and that there was no evidence that the proposed liquor store would generate greater employment opportunities than any other business that could operate at the Premises: Closing Submissions at [206]. (c) In determining whether the overall social impact of the licence - being granted will not be detrimental to the well-being of the local or broader community, the Tribunal is to take into account 'both positive and negative social impacts' that the licence if granted would have: Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224. As a matter of law, the Tribunal cannot fail to have regard to the employment opportunities that would be forgone if the licence were granted and the Premises was used as a liquor store. (d) The Tribunal failed to consider this submission, which was material, and found that the proposed liquor store would create employment opportunities in absence of any evidence about the employment opportunities that would exist if the licence was not granted, which are both errors of law."

[41]

Determination of Ground 6

The appellants submit that as a result of the Tribunal ignoring the material submission of the appellants, the wrong test was used.
Ground 6 concerns increased local employment opportunities. At heart, the appellants maintained that the Tribunal could not be satisfied that the proposed licence would indeed create employment opportunities in the relevant sense. The appellants had submitted that one needs to look at this question from the perspective of the net effect of this store versus another use of the premises. The appellants identified that the Tribunal has not referred to their submissions on this; and further, there is no consideration of employment opportunities that would be foregone if the proposed licence was granted. Accordingly, the submission has been missed.
The appellants reason that if the premises generate particular employment opportunities, but they were less than other uses of the premises, then it would be correct to say that the licence will actually take employment away. As there was no evidence capable of supporting a finding about the number of employment opportunities foregone, the Tribunal could not find that the effect of the licence on employment was positive.
The first respondent maintains that there is no requirement that net employment opportunities be determined and that there was a sufficient evidentiary basis to be satisfied that some employment opportunities would be afforded by the licence.
Fairly read, we are not satisfied the appellants' submission was ignored. Rather, the Tribunal has approached the task a different way, by focussing on the quality of the type of employment, rather than the absolute (or net) number. The Tribunal expressly considers various aspects of the nature of the employment opportunities that would be generated, including, that the number of employees included casuals and that other than with respect to two employees. there were no career prospects. Further, it was noted that unemployment in the area was low. Nevertheless, the Tribunal considered that the area "was not without its young people" ( at [147]) who would benefit from the opportunities.
It is hard to imagine how the net effect could be obtained in a variety of cases. If it was available, it would certainly be useful evidence; however, the fact that it is not available does not mean that there was an error of law by making a finding in its absence. Further, we do not accept that a finding about employment in absolute terms is incapable of being seen as a benefit.

[42]

Ground 11: Leave to challenge factual findings.

As mentioned above, this ground is engaged, where the Appeal Panel is otherwise satisfied of error. Grounds 2 and 3 have been allowed and accordingly Ground 11 is engaged. The appellants submit that this necessitates a revisiting of all of the evidence and all of the findings, as error in one aspect of the Decision makes errors in other aspects likely. The appellants also submit that since the date of the Decision, new legislation has come into effect, which amends the Liquor Act and affects the statutory test.
Section 80(3) of the NCAT Act permits the Appeal panel to have a "new hearing", if it is determined appropriate. Whilst not meaning to be prescriptive, the types of cases where it might be appropriate for the Appeal Panel to determine the matter by way of a new hearing is where the grounds of appeal call for the Appeal Panel to receive evidence that was not before the Tribunal at first instance and it is more convenient for the Appeal Panel to do so, rather than to remit the matter. This might occur where the grounds were particularly confined. That is not this case.
The only errors that have been made out concern Grounds 2 and 3. These errors concerns the Tribunal's treatment of Vintage Cellars. That reasoning affects multiple categories and multiple findings; but not all. It will be necessary to redetermine the particular individual risks of harm, ignoring the comparative difference in treatment between the Vintage Cellars licence and the licence. This will necessitate review of the evidence in relation to those findings. Further, it is not possible to discount the possibility that this will in turn affect other findings. It is certainly capable of affecting the overall conclusion, on a weighing up exercise, once the risks are recalibrated (if necessary). This process may benefit from further submissions from the parties.
The first respondent rejects the notion that it is necessary to review all the evidence again and seeks to be heard further in relation to the relevance of the amendments to the Liquor Act.
The Appeal Panel has determined this is not an appropriate ground of appeal to warrant the Appeal Panel holding a new hearing. The matter is to be remitted in relation to the matters the subject of Grounds 2 and 3.
The parties will be able to make submissions on the remittal.

Parties

Applicant/Plaintiff:

Narraport Woollahra Holdings Pty Ltd

Respondent/Defendant:

Ice Box Liquor Pty Ltd

Legislation Cited (5)

Civil and Administrative Tribunal Act 1997(NSW)

Economy Legislation Amendment (Vibrancy Reforms) Act 2023(NSW)

Administrative Decisions Review Act 1997(NSW)

Liquor Act 2007(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Cases Cited (49)

n and Multicultural Affairs [2003] HCA 26 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 GLJ v The Trustees [2023] HCA 32 Ice Box Pty Ltd v Independent Liquor & Gaming Authority [2022] NSWCATAD 358 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kramer v Stone [2023] NSWCA 270 Kudrynski v Orange City Council [2024] NSWCA 33 Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Medical Council of New South Wales v Mooney [2024] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 MZAPC v Minister for Immigration and Border Protection 273 CLR 506; [2021] HCA 17 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Williams v R (1986) 161 CLR 278; [1986] HCA 88 Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: Nil Category: Principal judgment Parties: Narraport Woollahra Holdings Pty Ltd (First Appellant) Souffle Pty Ltd (Second Appellant) Ice Box Liquor Pty Ltd (First Respondent) NSW Independent Liquor & Gaming Authority (Second Respondent) Representation: Counsel: J Emmett SC / H Grace (Appellants) C Ireland (First Respondent) Z Heger SC / C Beshara (Second Respondent)

Solicitors: BSV Liquor and Gaming Lawyers (Appellants) Hatzis Cusack Lawyers (First Respondent) Crown Solicitor (Second Respondent) File Number(s): 2024/00277397 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2024] NSWCATAD 180 Date of Decision: 28 June 2024 Before: J Gatland, Senior Member File Number(s): 2022/00190816

[1994] HCA 4

(1990) 170 CLR 321

(2014) 87 NSWLR 1

(1992) 174 CLR 64

(1995) 184 CLR 163

(2010) 239 CLR 531

(1990) 169 CLR 638

(1986) 162 CLR 24

(2020) 103 NSWLR 36

(1994) 179 CLR 332

(1986) 161 CLR 278

(1985) 4 NSWLR 139