Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority

Supreme Court of NSW|2024-02-02|Before: Schmidt AJ

Solicitors: LAS Lawyers (Appellant) Maddocks (Respondent) File Number(s): 2023/245709 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2023] NSWCATAP 171 Date of Decision: 26 June 2023 Before: P Durack SC, Senior Member J Lucy, Senior Member File Number(s): 2022/256854

Conclusion

For reasons which follow, I am satisfied that while the extension of time and leave to appeal Taphouse seeks must be granted, its application to amend its pleadings must be refused and its appeal must be dismissed.
I agree that its internal appeal was moot. Under the Liquor Act, the Tribunal cannot make orders in favour of Taphouse, it no longer being the licensee of the Tavern. Nor can it make orders in favour of the current licensee on Taphouse's application.

Issues

The principal issue raised by the appeal is whether the internal appeal before the Tribunal was moot. Taphouse contended, in essence, that despite no longer being the licensee of the Tavern, its appeal was not moot and that the Tribunal could still make orders in its favour, or in favour of the current licensee, on its application. It argued that it was an impractical construction of the Liquor Act to regard a "pending" extended trading application as terminated on transfer to a new licensee and that it had been impermissibly deprived of its appeal rights.
The Authority disputes this. Taphouse's application having been refused and it no longer being a licensee, who could be granted an extended trading authority under the Liquor Act, the Appeal Panel could not make orders in its favour and ultimately, the extended trading authority it still seeks to pursue cannot be granted. That further review depends on the merits of its application, the determination of which could not have any practical consequences for it.
The proper course under the Liquor Act, in the circumstances, was for the current licensee to make a fresh application, Taphouse's application having failed and it no longer being one which the Tribunal could grant.
The questions which this dispute finally generated included: 1. should Taphouse be given the 8 day extension of time to commence the proceedings which it requires, in circumstances explained in the affidavit of its solicitor, Mr Manca? 2. should Taphouse be given leave to appeal? 3. should Taphouse be given leave to amend its appeal? 4. are the orders Taphouse wishes to pursue, no longer being the Tavern's licensee, statutorily available to it, given the proper construction of the Liquor Act? 5. did the Appeal Panel wrongly deprive Taphouse of its right of appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW)? 6. did the Panel err: 1. in concluding that the appeal had no practical consequences for the parties? 2. in concluding that the Tribunal did not have jurisdiction to authorise the extended trading hours Taphouse still pursued, it no longer being the licensee? 3. in not finding that the Tribunal could authorise the then licensee trading during the extended hours Taphouse pursued? 4. in not concluding that authorised extended trading hours "ran" with the premises, such an authorisation permitting new licensees to continue to operate the Tavern during authorised hours, without having to make further applications to the Authority for approval of such trading? 1. should orders be made directing the joinder of the current licensee to the internal appeal proceedings? 2. if leave to appeal is given and the appeal is upheld, should the matter be remitted to a differently constituted Appeal Panel?

Extension of time and leave to appeal

I am satisfied that the interests of justice require that the extension of time and the leave to appeal Taphouse sought be given, in exercise of the Court's undoubted discretion.
The appeal was filed only 8 days out of time, in circumstances explained by Taphouse's solicitor, while negotiations between it and the purchaser of the Tavern were finalised. The evidence was not challenged. It explains Taphouse's relatively short delay and it was not suggested that the Authority would suffer any prejudice as a result of the exercise of the Court's discretion.
I also accept that the appeal does raise important questions about the operation of the statutory schemes, including about the consequence of a new licensee being appointed while proceedings before the Tribunal or this Court are being pursued by a predecessor licensee in respect of an extended trading authority. These questions do not appear to have previously arisen for consideration.
This, and the reasons which follow, explain how the issues lying between the parties arose and must be resolved. They have helped persuade me that Taphouse must be granted the extension it needs, as well as the leave to appeal which it requires.

Leave to amend Taphouse's pleading should not be granted

I am satisfied, however, that the leave to amend Taphouse's pleading, in order to appeal the refusal of the joinder of the current owner and then licensee to the internal appeal, should not be granted. Nor can the joinder of the current licensee be ordered. This application also requires an extension of time, which does not appear to raise any real prejudice. But still I am not satisfied that the leave sought can justly be granted.
The leave was articulated to be "to include specifically an additional appeal ground, namely, that the appeal panel was in error in rejecting the application for joinder of the then licensee, which is the subject of their decision at para 84, subcl 1. And secondly, I also seek to amend in the second respect of seeking an additional order possibly in addition to order 4 as ultimately formulated if this appeal is successful by your Honour directing the joinder of Nelmeer Ashfield Pty Ltd to the remitted proceedings below". That company is the current licensee.
There was no explanation for the delay in making this application. Nor is there any apparent statutory basis for the Tribunal making orders about an unsuccessful extended trading hours application in favour of an owner, a former licensee, or even the current licensee.
The Liquor Act does not contemplate that an owner of licensed premises, in lieu of the licensee, can make an extended trading hours application, let alone seek a review of the refusal of a licensee's application. Nor does it contemplate a former licensee pursuing orders in favour of a successor. What it does provide for is a successor licensee making a fresh application if it considers extended trading to be desirable. But no successor has made such an application, or even taken steps to support any of the proceedings Taphouse has pursued.
There was also an issue touched on in submissions about whether a successor licensee could have been substituted for Taphouse. But no steps have been taken by anyone to substitute any of the successor licensees for Taphouse, either on its application or in any of the proceedings it has pursued since the refusal of that application. Accordingly, this need not be considered further.
Section 44(1) of the Tribunal Act empowers the Tribunal to order a person to be joined to proceedings before it if it "considers that the person should be joined as a party".
That discretion must be exercised in light of s 36, which provides a guiding principle for the Act and rules, in their application to proceedings in the Tribunal, "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". That guiding principle must be given effect when exercising any power prescribed by the Act or interpreting any procedural rules.
I cannot see a proper basis for the exercise of the discretion on the internal appeal.
Rule 27 of the Civil and Administrative Tribunal Rules 2014 (NSW) specifies who may be parties to administrative review proceedings. They include the applicant; if an order is sought in respect of a person or body other than the applicant, that person or body; any other person made a party to the proceedings by the Tribunal under s 44 of the Tribunal Act; and any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.
In Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327, the view taken was that the joinder power in s 44(1) had to be read in conformity with the removal power in s 44(2), so that a party who was a "proper or necessary party" ought to be joined in the proceedings. It was explained that in addition to an applicant before a decisionmaker, "[a] party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party": at [40]-[41]. It does not automatically follow that a "proper" party is also a "necessary" party: at [38].
In this case, Taphouse was the applicant in all the proceedings. The new owner and then licensee were not necessary parties. Nothing depended on them or their attitude to its application.
On its review application before the Tribunal, Taphouse did not seek joinder orders, it just pursued its application. On the internal appeal, neither the current owner or then licensee sought to be heard. It was not until during the hearing of that appeal that Taphouse unsuccessfully sought their joinder, Taphouse still pursuing its failed application.
In those circumstances, it is not apparent that they were proper parties. While they then had a commercial interest in the Tavern, which Taphouse no longer had, they had evinced no interest in its application, which depended on its consultation with the community and its fitness, at the time when it was the licensee.
That reflects that the new owner and successor licensees have taken no steps in any of Taphouse's proceedings, nor indicated that they consented to their joinder.
As a matter of procedural fairness, I consider that the proposed parties would have to be given an opportunity to consider their attitude to the application, to indicate if they consented to it and to be heard if they opposed it. There was no suggestion that they had been given notice about their proposed joinder or how Taphouse sought to pursue it by steps taken during the hearing of this appeal.
This must all be considered in the context of s 49 of the Liquor Act which, as I will explain, does not contemplate the grant of an authorisation for extended trading to anyone other than the licensee.
There is now yet another licensee, who has also not sought to be so authorised and the Tavern is again in the process of being sold. The current owner can still not be authorised to sell liquor at the Tavern and neither it nor the current licensee have indicated that they consent to their joinder. After all, given the impending further sale of the Tavern, they may wish to oppose Taphouse's joinder application.
If the leave were given, the current owner and licensee would also have to be given an opportunity to be heard on Taphouse's appeal, resulting in further cost and delay.
All of this persuades me that to give the leave Taphouse so belatedly sought during the hearing would not accord with the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW). This purpose is the just, quick and cheap resolution of the real issues in these proceedings, concerning as they do Taphouse's appeal and the issues of construction it gives rise to.
I have tested these conclusions against the result of any application by the current owner or licensee to be made a party to these proceedings, so that they could be heard about Taphouse's external appeal.
It is a party to an internal or external appeal who may, with leave, appeal to this Court: s 83(1) of the Tribunal Act. Neither the current owner nor current licensee were parties to the internal appeal or this appeal. There is also no suggestion that they made submissions to the Authority about Taphouse's application, or that they were a "relevant person" under s 13A of the Gaming and Liquor Administration Act 2007 (NSW), entitled to be heard on the review, or sought to do so.
That they had a right to be joined as a party to this appeal, had they sought to be joined, is thus also not apparent.
While not addressed, it is r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') which regulates the joinder of third parties to proceedings before this Court. Joinder requires a conclusion that the current owner and licensee "ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute": r 6.24(1).
How this conclusion could be arrived at is not apparent, given that they had no right to appeal what was decided by the internal appeal. Their joinder is certainly not necessary. Nor did Taphouse consider that they ought to have been joined to these proceedings.
In Quader v Nguyen [2023] NSWSC 815, Fagan J concluded that the plaintiff, who was also not a party to the internal appeal, had no standing to appeal that decision, as he sought to do.
Mr Quader had represented two of the parties, his sons, in the internal appeal. His Honour concluded that in those circumstances, he had no standing to pursue an external appeal, with the result that the external appeal proceedings were incompetent from the outset: at [24]. It was not suggested that this conclusion was incorrect. In the result, I consider that in this case, it must also be accepted that the current owner and licensee have no standing to pursue an external appeal.
That the parties proposed to be joined to the internal appeal did not themselves make an application to become a party to the internal or external appeal and also did not indicate their consent to their joinder, would also have to be taken into account in determining whether the requirements of UCPR r 6.24 were satisfied.
There is no question that the current owner and licensee presently have an interest in the Tavern. Taphouse is also contractually bound to the owner to pursue this appeal.
But neither the current owner or licensee could be joined to these proceedings because UCPR r 6.25 provides that "[a] person is not to be joined as a plaintiff in any proceedings except with his or her consent". They have not consented. The basis for that rule, given the concern of the Civil Procedure Act with the just, quick and cheap resolution of the real issues in the proceedings, is apparent: s 56.
In the result, I am satisfied that the power to grant the belated leave to amend sought cannot justly be exercised.

Did the Appeal Panel err?

What the Appeal Panel explained included that: 1. The statutory regime was one under which "a licensee", defined as "the holder of a licence", is authorised to sell liquor in accordance with the Act and conditions of the licence and otherwise prohibits "a person" to do so: Interim Appeal Decision at [35]; 2. In the case of a hotel licence, the grant of or transfer of a licence affects a specific person and premises; 3. Under s 45(3)(a) of the Liquor Act, the assessment of an application for a licence includes an assessment of whether the applicant is a fit and proper person to carry on the business to which the licence relates: Interim Appeal Decision at [37]; 4. A grant of an application for extended trading is not an authorisation that is given to the licensee of the licensed premises "from time to time", irrespective of who the licensee is, until such time as it may be revoked: Interim Appeal Decision at [40]; 5. Under s 13A of the Gaming and Liquor Administration Act, it was Taphouse who was the "relevant person" on the review, it having sought to invoke the Tribunal's powers under s 81 of the Tribunal Act; 6. That empowered the Tribunal to make "a decision in substitution for a decision the subject of the appeal and, in doing so, to exercise the functions of the Tribunal conferred by legislation": Interim Appeal Decision at [31]; 7. Thus, in accordance with s 49(2) of the Liquor Act, "Taphouse's application … was an application ... as licensee, for the licence it held to have extended trading hours": Interim Appeal Decision at [32]; 8. This reflected that it is the licensee, either a person or corporation who holds the licence, who is authorised to sell liquor on specific hotel premises in accordance with the licence: Interim Appeal Decision at [36]; and 9. That was why the assessment of an application such as Taphouse's involved an assessment as to whether the applicant is a fit and proper person to carry on the business to which the licence relates: Liquor Act s 45(3)(a); Interim Appeal Decision at [37].

The parties' cases

The parties' cases altered somewhat during the course of the hearing.

Taphouse

Taphouse's case was that even though the position has since changed, at the time of the review hearing it was still the licensee of the premises and contractually bound to sell the Tavern. The sale and proposed transfer of the licence had been disclosed to the Authority and was known by the Tribunal. The Authority then raised no objection or concern about this transfer being an impediment to the review application.
Taphouse argued that if the review had succeeded, the outcome would have resulted in a change to the content and status of the licence applying to the premises, as well as in a direct legal impact on the Authority. That would benefit and bind the new owner, as well as licensees, and be enforceable against them by the Authority.
But the Authority successfully relied on the transfer of the licence to oppose the orders sought in the internal appeal: Internal Appeal Decision at [7]. While Taphouse was no longer the licensee, it remained contractually bound by the deed in evidence to the new owner to do all things necessary or reasonable to lodge and pursue its appeal, in accordance with its directions.
Leave to appeal should thus be granted because the Appeal Panel fell into legal error. Its conclusion that the appeal was "moot" involved an error of law, given that while Taphouse was no longer the owner or licensee, the characterisation of what was in issue, being hypothetical or academic, was wrong. Taphouse, being the proper appellant and its appeal having a direct legal impact on the conditions of the Tavern's licence, with direct implications for the premises and the commercial interests of the new owner, was entitled to have its appeal heard.
The scheme of the Act was that licences, including conditions as to extended trading, do not evaporate or terminate on transfer. Rather, the Authority has to consider each application to be satisfied that the proposed transferee is a fit and proper person. Unless the licence is then varied or revoked, the licence continues to apply to the premises.
The dismissal of the internal appeal thus had the result that Taphouse was not heard; that its rights were not adjudicated; its grounds of appeal were not decided; and it was, therefore, denied its statutory right of appeal. It also resulted in Taphouse's inability to secure, for the new owner and licensee, the benefit of the extended trading rights it ought to have been granted.
This had resulted in the intended simple operation of the statutory scheme being subverted, a matter of broad public interest, affecting the entire liquor industry. The Appeal Panel's construction would give rise to prolonged delays and unforeseen risks on licence transfer, contrary to the objects of the Act.
The Appeal Panel's conclusions had the unintended result that when ownership changes occurred before a licensee's appeal rights against the refusal of an extended trading application were exhausted, successor licensees would have to make a new application for extended trading under the Liquor Act, or pursue a fresh appeal.
No previous decision had considered the operation of this aspect of the statutory requirements, so that the grant of an extension of time to appeal and leave to appeal were warranted.
Further, the appeal was not moot, despite the Tavern's licence having also been transferred to other licensees before and after the Internal Appeal Decision, most recently in July 2023, and despite yet another application for approval of a new licensee now being pursued.
The reason for the internal appeal was that the extended trading hours dispute still had practical consequences for Taphouse, as well as for later business owners and licensees. The Panel thus wrongly concluded that the appeal was moot and that it should not determine what was then still a current dispute between the Authority and Taphouse, and the then current licensee.
The Appeal Panel's conclusion led to an unnecessary multiplicity of proceedings, as well as to delay and inefficiency, contrary to the objects of the Liquor Act and s 38(4) of the Tribunal Act, which required it to "act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms".
The subject matter of the appeal was not exhausted, as it had been in Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139. That followed from the provisions of s 49 of the Liquor Act, supported by other of its provisions. The determination of the internal appeal would thus resolve current non-hypothetical controversies, which continue to exist, despite the transfer of the licence and appointment of different licensees.
Taphouse also claimed that there were broad public interest considerations raised by its appeal, which affected the entire industry, and which the Panel had not taken into account in arriving at its decision. Further, it was claimed that the Panel's approach was likely to result in unnecessary increased expense and delay, contrary to s 3 of the Liquor Act, construed in light of its purpose, as it had to be.
The Liquor Act did not envisage that a licence would be transferred subject only to existing conditions and hours, given that those conditions and hours could still be altered by resolution of an outstanding appeal: s 60. The result was that the Panel misconstrued s 49. Its requirements are not the same as those which apply to s 60. The result of the Panel's approach was to ignore the words of s 49. Therefore, the matter had to be remitted to a differently constituted Appeal Panel, even though the Panel had not considered the merits of Taphouse's application.

The Authority

The Authority opposed an extension of time, the granting of leave to appeal, the granting of leave to amend the appeal and the appeal being referred to a differently constituted appeal panel, Taphouse no longer having any interest in the Tavern which was being conducted by the current licensee for the benefit of the current owner. Neither were parties to these proceedings or had an interest in them and there was no adequate explanation given for Taphouse's delays.
The Authority submitted that leave to appeal should also be refused, because: 1. Taphouse's appeal raised no issue or principle of public importance; 2. there was no injustice for Taphouse in the Panel's refusal to hear its appeal, there being no benefit for it from its pursuit; 3. the current owner and licensee are not precluded from themselves seeking extended trading hours; and 4. no error of law had been identified.
The proper construction of the statutory scheme did not permit orders being made in favour of Taphouse, the current owner or a successor licensee, in respect of its failed application. In the result, the appeal had to be dismissed, the Appeal Panel not having erred in its conclusion that it was moot.

Applicable principles of statutory construction

What is in issue turns on the proper construction of the Liquor Act. The applicable principles of statutory construction by which this must be determined were recently discussed in ENT19 v Minister for Home Affairs [2023] HCA 18 at [86]-[87]; (2023) 97 ALJR 509. They include: 1. the starting point is the text of the provision in issue, with regard also to be had to its context and purpose; 2. context should be regarded at the first stage and not at some later stage, and in its widest sense, including by reference to legislative history and extrinsic material; 3. the natural and ordinary meaning of a word is important, but understood in its statutory, historical or other context, another meaning of a word may arise; 4. if a word's ordinary meaning is not consistent with the statutory purpose of the Act, that meaning must be rejected; 5. the context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and the principles of construction may thus lead a court to adopt a construction that departs from the literal meaning of the words of a provision; 6. one such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals; 7. as Gageler J explained in SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [41], "statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means"; 8. where conflict appears to arise in construing an Act, "the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions", and this "will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]; and 9. ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.

Licensing requirements under the Liquor Act

Licensing of a hotel under the Act depends on the Authority's satisfaction that all the licensing requirements of the statutory scheme are satisfied, so that the power to grant a licence may be exercised. They include a consideration of the fitness of the proposed licensee, it only being the licensee who is permitted to sell liquor at the licensed premises in accordance with the conditions of the licence and it being an offence for others to sell liquor there: Liquor Act ss 7, 8 and 9.
The identity of a proposed licensee is thus of relevance not only to the grant of the licence, but also to the conditions which may be imposed on the hotel's licence, on grant or subsequently. It is the licensee whose fitness has been assessed who must make applications to trade at the hotel during extended hours: Liquor Act s 49. On such applications the licensee again comes under the Authority's scrutiny.
A hotel licence authorises the licensee to sell liquor at the premises in accordance with the conditions of the licence: Liquor Act s 10. It authorises the licensee to sell liquor there at specified times: ss 12 and 14.
The Authority may "impose" conditions on such a licence which require the licensee to cease trading at an earlier time than otherwise required by a licence: Liquor Act s 52(2). Section 53 also empowers the Authority to impose, vary or revoke licence conditions, at any time, after giving the licensee a reasonable opportunity to make submissions in relation to the proposed decision and after taking any such submission into account. It specifically includes the power to impose conditions prohibiting the sale of liquor at specified times or to restrict trading hours. The Secretary is given similar powers: s 54.
Contrary to the case Taphouse advanced, there is no provision empowering the Authority to impose conditions on the hotel's licence which permit extended trading at the hotel.
Rather, the Act empowers the Authority, on application of the licensee, to authorise the licensee to sell liquor at the hotel during specified extended trading hours: Liquor Act s 49(2). Such extended trading hours continue until varied or revoked by the Authority: s 49(5). But, also contrary to Taphouse's case, there is no provision for such an authorisation to become a condition of the hotel's licence.
The Hotel's licence continues in force until surrendered, cancelled, otherwise ceases to be in force, or, if for a specified term, when it expires: s 46.
Licence transfer to another person depends on the Authority's approval: Liquor Act s 60. Further: 1. a transfer can only be to a person who, in the Authority's opinion, would be entitled to apply for the same type of licence in relation to the licensed premises: s 60(1); 2. such an application can only be made by the licensee or the person to whom the licence is to be transferred, not the owner of the premises or business: s 60(2); 3. approval to transfer a licence has to be dealt with and determined by the Authority as if it were an application for the grant of a licence to the other person, who was the applicant for the licence: s 60(5); 4. provisional approval can be given and cease to have effect in specified circumstances: ss 60(8)-(9); 5. approval has effect as if the licence had been granted to the transferee: s 60(12); and 6. there are also alternative transfer processes specified in other circumstances for licence transfer or the business of a licensee to be carried on, which it is unnecessary to explain further.
It is the construction of s 49, which regulates applications by a licensee for authorisation to trade during extended hours, which was in issue and led the Appeal Panel to conclude that Taphouse's internal appeal was moot.

Was the appeal "moot"?

In this statutory context, I have concluded that the internal appeal proceedings were moot, as the Appeal Panel concluded and that this did not wrongly deprive Taphouse of its right to appeal.
Rather, the Appeal Panel recognised that what was raised by Taphouse's appeal could not result in any orders in its favour on a further review and so should not be further entertained. There was no suggestion in these proceedings that the Appeal Panel had no power so to dispose of an appeal, in an appropriate case. That this was such a case was what was in issue.
This point was first raised in the Authority's reply submissions before the Appeal Panel: Interim Appeal Decision at [4]. Its case then was that the appeal was "without utility and incompetent" because Taphouse was no longer the licensee and therefore had no interest in the proceedings. The Review Decision was specific to it and not concerned with the Tavern's licence, or its licensees generally.
This was disputed, Taphouse's case being that its right of appeal under s 80 of the Tribunal Act made it an "impermissible gloss on the statute" to adopt some restriction on its exercise of that right, even though it was no longer the licensee. Further, as the new licensee had no separate appeal rights, the result would then be "an unjust lacuna". This was because there was then no possibility of any appeal being pursued against a review decision, in circumstances where there had been a change in licensee: Interim Appeal Decision at [5].
Section 80 of the Tribunal Act permits a party to the proceedings in which the challenged decision is made to pursue an internal appeal, on any question of law, or with the Panel's leave on any other grounds. An internal appeal can be dealt with as a new hearing, when fresh evidence, or evidence in addition to or in substitution for that received at first instance is given, if the Appeal Panel considers that to be appropriate in the circumstances.
The Panel took the view that the circumstances which arose to be considered were similar to those considered in Feeney, a case regarding access to government information. There it was concluded that as there was no live dispute between the parties about whether the applicant could have access to the information, it already having been supplied, the appeal was moot and was thus dismissed.
On Taphouse's case, while it was no longer the licensee, it did have a remaining interest in the pursuit of its application, namely, not being in breach of the deed it had entered with the purchaser. Such a breach would result if it did not pursue the appeal, despite the Tribunal's conclusion that on the proper construction of s 49(2) of the Liquor Act, approval of extended trading hours could only be granted to the applicant licensee.
The Panel explained the terms of the Deed at [65]-[67] of the Interim Appeal Decision. Its conclusion was that the Deed did not give Taphouse "some practical consequence" by a determination of the merits of its appeal. Its dismissal, on the basis that it was moot, did not result in any breach of the deed or any other adverse consequence for Taphouse: at [67].
The Panel thus concluded that in the circumstances, it was necessary for the then licensee to make a fresh application for extended trading hours, accepting that the Tribunal's decision was a judgment in rem. The then licensee had not made any application and the required statutory investigation into whether it was a fit and proper person had not been undertaken, because the application which had been refused had been made by Taphouse. It followed that no administrative review right had yet arisen in respect of other licensees.
That the Panel erred in so concluding is not apparent.
In Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 it was observed at [79] that the "essence of judicial power is the determination of disputes between parties". But by the time of the internal appeal, even if contractually bound to pursue the appeal, Taphouse no longer had any real dispute with the Authority, given the terms of the statutory schemes, being a former licensee. Having sold the Tavern and ceased being the licensee, it no longer had any interest in the Tavern, its hours of operation, the conditions of its licence, or the authority it had been refused to trade at the Tavern during extended hours.
All that remained was its contractual obligation to the current owner, to pursue a review of its failed application and later, to appeal the further failure of the review. But the internal appeal did not turn on this obligation, which also had no impact on the Authority, it necessarily turning as it did on the provisions of the statutory schemes.
It follows that the appeal was moot because the Tribunal could no longer make effective orders on Taphouse's application in relation to extended trading hours at the Tavern.

The proper construction of the Liquor Act

The construction issues debated on this appeal have to be resolved in the overall context of the statutory scheme, the Liquor Act regulating licences and licence conditions differently to authorisations for extended trading.
Its construction must be approached in light of the objects of the Act and its regulation of licensing. They are specified in s 3 to be: (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.
Section 3(2) requires that, to secure the objects of the Act, each person who exercises functions under it, including a licensee, is required to have due regard to: (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.
The Act also deals with: 1. standard, extended and special events trading hours: ss 12-13; 2. licensing procedures, applications and grants, licence removals and transfer, and corporate licensees: Pt 4; 3. regulation and control of licensed premises, including exclusion of persons from the premises and the regulation of those who have responsibility and liability in relation to the premises and the business conducted there, and responsible service of alcohol: Pt 5; 4. regulation of minors, including underage drinking: Pt 7: 5. local liquor accords: Pt 8; 6. disciplinary actions, including inquiries and investigation of complaints: Pt 9; 7. the operation of a demerit points register: Pt 9A; and 8. enforceable undertakings and criminal proceedings: Pts 9B and 10.
It needs to be remembered that s 3 of the Act deals with various types of liquor licences regulated by the Act, including hotel licences. They authorise licensees to sell or supply liquor in accordance with the Act and conditions of the licence: s 10. "Licensee" is defined in s 4 to mean "the holder of a licence". Licence conditions may be imposed by the Act, by the Authority or Secretary on grant or subsequently, and may also be prescribed by regulation: s 11.
Applications for authorisation of extended trading are differently regulated.
Hotel licences are dealt with in Div 2 of Pt 3. Licence applications may be made by specified individuals or corporations: s 40. In the required accompanying statement, persons interested in the business, or the profits of the business carried on under the licence, must be revealed: s 41(1). These persons are those entitled to receive income derived from the business, or any other financial benefit or financial advantage they have from the carrying on of the business, whether arising at law or in equity or otherwise: s 41(2).
It is the Secretary who conducts required inquiries and reports to the Authority about applications made to it. This may require further information to be provided by an applicant: ss 42 and 43. Any person may make submissions about applications: s 44 and Liquor Regulation 2018 (NSW) reg 30. A licence may not be granted unless the Authority is satisfied about specified matters: s 45. Namely: (a) the applicant is a fit and proper person to carry on the business or activity to which the proposed licence relates, and (b) practices will be in place at the licensed premises as soon as the licence is granted that ensure, as far as reasonably practicable, that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and that those practices will remain in place, and (c) if development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the premises for the purposes of the business or activity to which the proposed licence relates - that development consent or approval is in force.
In the case of applications for both hotel licences and extended trading authorisations at a hotel made by a licensee, the application must be accompanied by a community impact statement which complies with the regulations and the Authority's requirements: s 48. Such authorisations may only be granted if the Authority is satisfied "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": s 48(5).
They may not be granted unless the Authority is satisfied that specified practices are and will remain in place and that the extended trading period "will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises": s 49(8).
Further, if, before the application is determined, a change occurs in the information provided in, or in connection with the application, the applicant must "immediately notify the Authority of the particulars of the change": s 51(4). This notification may be accompanied by a submission which will be considered prior to the Authority's decision: s 51(4)-(7).
The Authority may impose licence conditions about the service of liquor or restricting access to the hotel, or later vary or revoke them: ss 52 and 53. The Secretary may do the same: s 54.
It is a licence condition that information about persons who become interested in the business, other than the licensee or a financial institution, must be disclosed to the Authority within 28 days: s 55.
The Authority also has the power to transfer a licence, on the licensee's application and with the proposed transferee's consent or his or her application, to a person who, in its opinion, would be entitled to apply for the same type of licence in relation to the licensed premises: s 60. Such an application is to be dealt with as if it were an application for the grant of such a licence on the other person's application: s 60(5). There is a different transfer process regarding change of ownership of the business carried on under the licence or dispossession of a licensee: ss 60A and 61.
But there is no statutory process for the transfer of an extended trading authorisation, or it becoming a licence condition.
The Act also provides for a licensee's business to be carried on after death, bankruptcy or other disability: ss 62-64.
In the case of any licence held by a corporation, a manager approved by the Authority must be appointed: s 66. Approval also requires satisfaction, amongst other things, that he or she is a fit and proper person to manage licensed premises: s 68(4). It is either the licensee or manager of the premises who is responsible, at all times, for the personal supervision and management of the conduct of the business of the licensed premises under the licence: s 91.
As the Appeal Panel found, it is the licensee at the time of the extended hours application, who has already been found on initial grant or later transfer of the licence, to be a fit and proper person to carry out an hotel's licensed business, who can make and pursue an extended hours application.
The current licensee has been found to be a fit and proper person to carry out the Tavern's licensed business. But because extended trading at the Tavern has not been approved and it has not pursued an extended hours application, its fitness for extended trading at the Tavern has not been assessed by the Authority.
Contrary to Taphouse's case, it is difficult to see how, given the statutory scheme, the orders which it now seeks to pursue as a former licensee in favour of the current licensee could be made by the Tribunal. That does not accord with the statutory intention that the suitability of a licensee to conduct extended trading be assessed by the Authority, before an extended trading application is approved.
That in the circumstances which have arisen, the Authority has had no opportunity to consider this statutory requirement in respect of the current licensee does not support the construction which Taphouse urged. The practical outcome of its construction being one of the matters which arise to be considered in resolving what is in issue.
But ultimately, it is the words of s 49 on which its construction turns.

The proper construction of s 49 of the Liquor Act

Taphouse advanced its case on the basis that an extended trading authorisation granted under s 49 became a condition of a hotel's licence and thus "ran" with the premises. That cannot be accepted.
On the proper construction of s 49 of the Liquor Act, which must be approached in light of other relevant provisions, including ss 45, 48 and 60, an authorisation granted under that section never becomes a condition of a hotel licence.
Extended trading authorisations depend on decisions made by the Authority. Initially on application and later, if it has to consider whether to vary or revoke an authority it has granted. It follows that the conclusion that such an authorisation "runs" with the premises, as Taphouse contended, also cannot be accepted.
As I will explain, after a hotel's licensee has been granted an authority for extended trading, if it is not earlier revoked, when an application is made to transfer the licence to a new licensee, the Authority will have to consider the fitness of the proposed licensee, in the context of that authorisation. If not satisfied about fitness, the Authority can refuse the transfer, or may revoke or vary the authorisation.
Section 45(3)(a) of the Liquor Act does not permit the Authority to grant a licence unless satisfied that the applicant is a fit and proper person to carry on the business or activity to which it relates. "Licence" is defined in s 4 to mean "a licence under this Act".
But that does not encompass an authorisation for extended trading, which is dealt with separately. Section 48 has the object of facilitating the Authority's consideration of the impact that the grant of an extended trading authorisation will have on the local community. This is by a process by which the Authority is made aware of local community views; discussions between the applicant and the local community about the issues and concerns that the community may have about the application; and the consequences of its grant on certain sectors and industry.
It is only Taphouse which has engaged in that process. Still it contended that the Act contemplates that despite an applicant no longer being the licensee of the hotel, it can continue to pursue its application in favour of successor licensees. The Act makes no such provision.
Contrary to its submissions, the result that a former licensee can no longer pursue its failed extended trading application, is not absurd, impractical or inconsistent with the statutory scheme: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26. It is rather what the statutory regime contemplates.
That can be tested against other practical consequences of the result for which Taphouse contended. Years have passed since Taphouse made its application and undertook the community consultation which the legislative scheme required. None of its successor licensees have exercised their rights to make their own applications for such authorisation, nor have they undertaken the statutory consultation or had their fitness for extended trading assessed by the Authority.
Section 60 provides that the transfer of a licence has effect as if the licence had been granted to the transferee: s 60(12). It does not provide for the transfer of an authorisation, let alone one that has been refused. Licence transfer requires the Authority to consider fitness, including if an authorisation has been granted, fitness for such extended trade. If there is no such authorisation a new licensee may make its own application.
Nor do ss 49 or 60 contemplate that a former licensee of a hotel may continue to pursue an application for extended trading which the Authority has rejected. It is no longer entitled to sell liquor there at any time.
Were it otherwise, a former and current licensee would be able to pursue competing reviews or appeals in relation to failed applications. Or a successor licensee could make a competing new application for extended hours authorisation at the same hotel, or could challenge an application a former licensee was pursuing.
That a successor licensee would not wish to pursue the failed application of a former licensee is entirely understandable, depending as it would on the Authority's view of the results of the community consultation that licensee had engaged in and an assessment of its fitness.
Taphouse still contended that it would be contrary to the purpose and objects of the Act for an authorisation, once granted, to cease to apply to subsequent licensees, or for "incomplete" applications to lapse on licence transfer, so that a new licensee had to bring a fresh application for authorisation of proposed extended hours.
But Taphouse's application is of course not "incomplete". It was refused. And it does not follow that an authorisation would necessarily cease on licence transfer. That is a matter for the Authority to determine.
Given s 60(12), it must be accepted that the right Taphouse had to challenge the refusal of its application ceased once the licence was transferred to a successor. That accords with s 49.
Section 49 relevantly provides: 49 Extended trading authorisation - general provisions (1) Application of section This section applies in relation to the following types of licences (referred to in this section as a relevant licence) - (a) a hotel licence, …… (2) Extended trading authorisation for consumption on premises In the case of a relevant licence (other than a packaged liquor licence) that authorises the sale or supply of liquor for consumption on the licensed premises, the Authority may, on application by the licensee, authorise the licensee to sell or supply liquor, for consumption on the licensed premises only, during any of the following periods - (a) in the case of a hotel licence - a specified period between midnight and 5 am on any day of the week, ….. (3) Despite subsection (2)(a), the Authority may, in the case of a hotel - ….. (4) Extended trading authorisation for take-away sales on Sundays In the case of a relevant licence (including a packaged liquor licence) that authorises the sale or supply of liquor for consumption away from the licensed premises, the Authority may, on application by the licensee, authorise the licensee to sell or supply liquor, for consumption away from the licensed premises only, during either or both of the following - (a) a specified period between 5 am and 10 am on a Sunday, (b) a specified period between 10 pm and 11 pm on a Sunday. (5) Nature of extended trading authorisation An extended trading authorisation operates to authorise the sale or supply of liquor on the licensed premises - (a) on a regular basis (until such time as the authorisation is varied or revoked by the Authority), or …… (5A) … (6) Extended trading period to be specified In granting an extended trading authorisation, the Authority is to specify - (a) the extended trading hours during which the licensee is authorised to sell or supply liquor, and (b) the part or parts of the licensed premises to which the authorisation applies. (7) …. (8) Restrictions on granting extended trading authorisation The Authority must not grant an extended trading authorisation in respect of licensed premises unless the Authority is satisfied that - (a) practices are in place, and will remain in place, at the licensed premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and (b) the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises. (9) ….
On Taphouse's case, the Appeal Panel failed to have necessary regard to ss 49(2) and 49(5). But it seems to me that this overlooks the need to read the words relied on in these subsections not only in the context of the balance of s 49, but the scheme of the Act as a whole, which I have explained.
There is no issue that the process of construction must begin with a consideration of the ordinary and grammatical meaning of the words used in s 49, having regard to their context and legislative purpose, bearing in mind pertinent textual and purposive indicators.
The Act is concerned with the licensing of premises including hotels, but it is licensees who are permitted trade and sell liquor there. Not only in accordance with the conditions which the Act, Regulations or Authority impose, including as to trading hours, but also with authorisations for extended trading which only the Authority may grant a licensee, on application.
It follows that s 49(2) does not permit the construction for which Taphouse contends. Its introductory words provide, with my emphasis: "In the case of a relevant licence (other than a packaged liquor licence) that authorises the sale or supply of liquor for consumption on the licensed premises, the Authority may, on application by the licensee, authorise the licensee to sell or supply liquor, for consumption on the licensed premises only, during …"
The term "the licensee" is twice used in this introduction, on Taphouse's case, with two different meanings. It submitted that the term where first used meant the applicant licensee, but where next used, meant all licensees. While that cannot be right, it also does not encompass former licensees.
To construe the term "the licensee" to mean "all licensees" where it is secondly used in s 49(2), I accept, would be to depart from the ordinary, natural and grammatical meaning of the term, in a way that is not consistent with the legislative scheme: Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 at [26].
It is possible for the same word or term to be used with different meanings in a statute, but if it is used in the one or related sections, consistency is expected: Federal Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) (2015) 257 CLR 544; [2015] HCA 48 at [27].
In this case, that the term "the licensee", a defined term utilised as it is throughout the Liquor Act, would be used with two different meanings in the one sentence in the same subsection, seems quite unlikely. There must, accordingly, be a sound basis for the abandonment of the presumption about consistency, which I cannot see. Nor can I accept that other parts of the Act relied on to support the construction advanced have the result contended for.
That the construction urged could easily have been achieved by the use of clearer words is also relevant. That could have been achieved, for example, by the introduction to s 49(2) providing that: "In the case of a relevant licence (other than a packaged liquor licence) that authorises the sale or supply of liquor for consumption on the licensed premises, the Authority may, on application by the licensee, authorise the sale or supply of liquor on the premises for consumption there, during any of the following periods - " …"
But Parliament chose not to use such language, directed as it could have been to the premises and its licence, rather than to an authorisation granted to the licensee of the premises.
Given the words used, it must be accepted that s 49(2) is not concerned with the premises, its licence or licence conditions, but with what the applicant licensee is authorised to do there, after grant of its application for authorisation of extended hours trading.
That accords with s 60(12), which puts a successor licensee in the position of the licensee who obtained the authority, once licence transfer is approved by the Authority, unless the extended trading authorisation is varied or revoked by that Authority.
Taphouse's construction was also argued to be supported by s 49(5), it contemplating that an extended trading authorisation applies not only to the successful applicant licensee, but to the licensed premises, because it applied to the applicant licensee and all subsequent licensees until it was revoked. That does not follow.
Nothing in the Act indicates that the authorisation applies to the premises, rather than to the licensee.
It is relevant that the Authority exercises similar powers in relation to an application for an authorisation as it exercises in relation to an application for a licence: Liquor Act s 51(3). But account must be taken of the fact that not only are these two types of applications separately regulated in that Act, they are also brought to an end in different ways.
The scheme of the Act is that, once approved, a licence continues in force until it is surrendered to the Authority, cancelled or otherwise ceases to be in force, or, if for a specified term, when that term expires: s 46. By way of contrast, once granted, an extended trading authorisation only comes to an end when it is revoked by the Authority: s 49(5)(a).
Logically, under this scheme, it follows that after the licensee of a hotel has been granted an extended trading authorisation, any application for licence transfer will give rise to the Authority's consideration, when the applicant's fitness is being assessed, not only of whether the licence transfer should be approved, but also of whether the extended trading authorisation should continue or be revoked.
That has not yet arisen to be considered in the case of the Tavern, because the authority Taphouse sought was refused and since it ceased being the licensee, no other licensee has sought authority to trade during extended hours. That is why their fitness for such trading has not ever arisen to be assessed.
No doubt the current owner and successor licensees from time to time all had an interest in the hours that the Tavern traded. It is one that any licensee could have pursued by application for extended trading, but none have done so. Nor have they ever sought to be heard about Taphouse's application, the review or its appeals.
This reflects that s 49 does not empower the Tribunal to make orders in favour of a licensee on a former licensee's application.
Nor could an advisory opinion be given by the Court on its internal appeal, for reasons explained in Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375 at [27]-[38].
It follows that on the proper construction of s 49, Taphouse's rejected application is irrelevant to extended trading at the Tavern in the future. In the result, the Appeal Panel was correct in concluding that the internal appeal Taphouse sought was moot.

The Tribunal no longer has the power to authorise extended trading at the Tavern on Taphouse's application

For these reasons, it follows that it cannot be accepted that the Liquor Act contemplates that if a hotel licence is transferred to a new licensee after the former licensee's application for authorisation for extended trading has been refused, that the former licensee can successfully pursue a review or appeal in respect of its failed application.
Accordingly, Taphouse's external appeal must also fail.
As events have unfolded, if Taphouse's appeal were now upheld and its application referred back for further review, while the Tribunal would again stand in the position of the Authority as decision maker, it could make no orders on Taphouse's application. It is only a licensee who can successfully pursue orders about such authorisations. Taphouse is no longer such an applicant.
That this result is unfair, contrary to the statutory scheme or impractical, as Taphouse contended, cannot be accepted. It will not necessarily be the case that a former and successor licensee will take the same view about an application which the Authority has refused, a review or appeal, or what extended trading hours should be pursued at a hotel.
Considerable time has passed since Taphouse made its unsuccessful application after community consultation. A number of licensees have succeeded it and none have pursued its or any other application. That the current licensee has any interest in Taphouse' s application, or its own, is not apparent.
The Authority necessarily became aware of the changes in the Tavern's licensees, it having to approve them. But this did not require or permit its consideration of their fitness to conduct extended trading hours at the Tavern, as the legislative scheme contemplates, none of them having sought such authorisation.
The result of the course which Taphouse and its successor licensees have each pursued must thus be the refusal of its appeal. That is not the result of absurd, impractical constructional choices which the Appeal Panel made, as Taphouse contended, but the intended operation of the statutory scheme.

Remittal to a differently constituted appeal panel

Even if I had come to a different view, I would not have ordered that the matter be remitted to a differently constituted appeal panel, given that the Appeal Panel did not have to resolve any questions going to the merits of Taphouse's application.

Costs

The parties sought the opportunity to address costs if they cannot be agreed. They should thus discuss the appropriate costs order and, if one cannot be agreed, approach the Court within 14 days with short written submissions outlining what is in dispute and indicating if they wish to be heard further.

Orders

For these reasons I order that: 1. the extension of time sought be granted; 2. leave to amend the summons be refused; 3. leave to appeal be granted; 4. the appeal be dismissed; and 5. if costs cannot be agreed, the parties approach the Court within 14 days of this judgment, with short written submissions outlining what is in dispute and indicating if they wish to be heard further.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2024

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