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

[2020] NSWCATAD 307

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

D & D Natural Health Pty Ltd v Independent Liquor and Gaming Authority [2020] NSWCATAD 307

Hearing dates:

30 July 2020, 3 September 2020, 23 November 2020 (final submissions)

Date of orders:

10 December 2020

Decision date:

10 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton, Principal Member

Decision:

The decision made by the Independent Liquor and Gaming Authority to refuse to grant a packaged liquor licence to D & D Natural Health Pty Ltd is set aside and remitted to the Authority for reconsideration in accordance with the Tribunal’s decision that the subject premises is not a “general store” within the meaning of s 31 of the Liquor Act 2007 (NSW).

Catchwords:

ADMINISTRATIVE REVIEW — grant of packaged liquor licence

WORDS AND PHRASES — meaning of “general store” “mixed business shop”

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Gaming and Liquor Administration Act 2007 (NSW)

Gaming and Liquor Administration Regulation 2016 (NSW)

Interpretation Act 1987 (NSW)

Liquor Act 1982 (repealed)

Liquor Act 2007 (NSW)

Liquor Amendment Bill 1999 (NSW)

Liquor Control Reform Act 1998 (Vic)

Liquor Regulation 2018 (NSW)

National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Act 2004 (NSW) (repealed)

National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Bill 2004 (NSW) (repealed)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27

Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265

Cabell v Markham, 148 F 2d 737, 739 (2nd Cir, 1945)

Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297

Elizabeth Bay Road Pty Ltd v The Owners — Strata Plan No 73943 [2014] NSWCA 409

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98

Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130; 56 NSWLR 210

House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498

Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1

Independent Liquor and Gaming Authority v Auld [2019] NSWCA 88

Jaza v DLL [2000] VCAT 1651

Jones The Grocer Store Pty Ltd v Director of Liquor Licensing (Occupational and Business Regulation) [2009] VCAT 899

Jones The Grocer Store Pty Ltd v Director of Liquor Licensing (Occupational and Business Regulation) [2009] VCAT 899

M P Metals Pty Ltd v Commissioner of Taxation [1968] HCA 89; (1968) 117 CLR 631

Maryland Development Co Pty Ltd v Penrith City Council & Anor [2001] NSWLEC 135

MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260

NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541

Seldan Pty Limited v Liquor Licensing Commission (unreported, Supreme Court of Victoria, 15 May 1990)

Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152

Sonia Martinez at Wattle Park Green Grocer premises (Liquor - internal review), [2018] VCGLR 8 (26 March 2018)

TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68

Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664

Texts Cited:

Macquarie Dictionary

Oxford Dictionary

Category:

Principal judgment

Parties:

D & D Natural Health Pty Ltd (Applicant)
Independent Liquor and Gaming Authority (Respondent)

Representation:

Counsel:
J Hutton with K Sutton (Respondent)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00091330

Publication restriction:

Nil

REASONS FOR DECISION

1. D & D Natural Health Pty Ltd (“Natural Health”) operates Green Soul Trader, a store which sells “natural and organic products”, in Bridgepoint Shopping Centre, Mosman. Natural Health wishes to include organic wines in the range of goods it offers for sale. To do so it must hold a “packaged liquor licence” under the Liquor Act 2007 (NSW) (the Act).

2. In February 2018, the Independent Liquor and Gaming Authority (“the Authority”) refused Natural Health’s application (“the Application”) for a packaged liquor licence.

3. Natural Health applies to the NSW Civil and Administrative Tribunal (NCAT) for review of that decision. Whether that decision is the “correct and preferable” decision requires a preliminary question to be decided, namely whether Green Soul Trader is a “general store” within the meaning of s 31 of the Act. If the answer to that question is no, it will be necessary to decide whether the Application should be determined by NCAT or remitted to the Authority for determination.

Overview of Green Soul Trader

4. Bridgepoint Shopping Centre is described in promotional material as “the premier shopping centre on Sydney’s affluent Lower North Shore”, a “6800 sqm ‘super neighbourhood centre’ with three food majors and 35 specialty stores”.

5. Green Soul Trader (the Store) is located on the first floor of Bridgepoint and operates seven days per week, usually between 8:30 am and 6:00 pm.

6. The terms of its lease limit the Store’s use to the “sale of natural and organic products". According to Bridgepoint’s Manager, Mr Glen Jones, to achieve an “optimal tenancy mix” each of Bridgepoint’s 35 “specialty stores”, of which the Store is one, is required to “stay in its lane”.

7. The Store stocks a wide range of products. The Store’s product inventory lists about 5000 products listed by category which include: Skincare, Protein, Pets, Pantry, Makeup, House and Health.

8. The Store’s owner, Ms Della He, described the Store as essentially “a lifestyle business” catering to a niche market, generally affluent people who are “prepared to pay a premium to help them live in a way which minimises harm to the earth, maximises their own health and well-being, supports local and artisanal producers and gives back to society”. Ms He claims that the Store’s product range reflects these values, and its products promote fair trade, are natural, vegan, made cruelty-free and/or are ethically created. In addition, according to Ms He, the Store’s product range reflects the fact that many of its customers are on specialist diets, such as vegan, paleo, gluten-free, dairy-free and keto. The business also favours products made in Australia by small local producers.

9. Ms He explains that the Store does not stock tobacco and cigarettes, takeaway food, bread, cakes and baked products, milk (except almond, oat and coconut), “mainstream” soft drinks such as Coke, Schweppes, dairy chocolate, refined sugar, SIM cards, transport cards, newspapers and magazines.

10. Marketing consultant, Mr Nicholas Bez, uses the term “Lifestyles of Health and Sustainability (“LOHAS”) to describe the type of consumers described by Ms He: “consumers who have strong values and attitudes towards personal, community and planetary well-being”. According to Mr Bez, demand for LOHAS goods and services has increased significantly over the past decade, and is reflected by the fact that Australian supermarkets now commonly stock a range of organic and natural products.

Statutory framework

11. The objects of the Act include regulating the sale, supply and consumption of liquor "in a way that is consistent with the expectations, needs and aspirations of the community": s 3(1)(a). Section 3(2) provides that "[i]n 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 contributes to, and does not detract from, the amenity of community life.”

12. The Act makes it an offence to sell liquor to a person unless the seller is a person who is authorised by licence to do so: s 7. The types of licences that may be issued under that Act include packaged liquor licences. A "packaged liquor licence" authorises a licensee to sell liquor from particular premises in sealed containers for consumption away from the licensed premises: s 29.

13. Section 31 of the Act prohibits the Authority from granting a packaged liquor licence to premises comprising a general store, service station or take-away food shop. The prohibition applying to general stores is conditional; the prohibition applying to service stations and take-away food shops is absolute. Section 31 provides:

31 Restrictions on granting packaged liquor licences

(1)   A packaged liquor licence must not be granted for premises that comprise a general store unless the Authority is satisfied that—

(a)   in the neighbourhood of the premises concerned, no other take-away liquor service is reasonably available to the public, and

(b)   the grant of the licence would not encourage drink-driving or other liquor-related harm.

(2)   A packaged liquor licence must not be granted for premises comprising a service station or take-away food shop.

(3)   In this section—

general store means a convenience store, mixed business shop, corner shop or milk bar that has a retail floor area of not more than 240 square metres and that is used primarily for the retail sale of groceries or associated small items.

service station means premises that are used primarily for the fuelling of motor vehicles involving the sale by retail of petrol, oil or other petroleum products.

take-away food shop means premises that are used primarily for the preparation and sale of food for immediate consumption away from the premises (whether or not food is also consumed on the premises).

14. The terms convenience store, mixed business shop, corner shop and milk bar are not defined by the Act.

Administrative review by Tribunal

15. A person aggrieved by a decision made by the Authority to grant, or to refuse to grant, a packaged liquor licence under the Act may apply to NCAT for administrative review under the Administrative Decisions Review Act 1997 (NSW): s 13A of the Gaming and Liquor Administration Act 2007 (NSW) (Administration Act) and cl 7(a)(iv) of the Gaming and Liquor Administration Regulation 2016 (NSW).

16. In determining an application for administrative review, the Tribunal may affirm or vary the decision the subject of that application, set aside that decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator: s 63(3) of the Administrative Decisions Review Act.

17. The task of the Tribunal on review is to make the correct and preferable decision having regard to the material then before it, any relevant factual material and any applicable written or unwritten law. (For a summary of relevant principles, see, HSL Group Pty Ltd v Department of Finance, Services & Innovation [2020] NSWCATOD 125 [17]-[19].)

Decision under review

18. In written reasons for its decision refusing to grant Natural Health a packaged liquor licence (“the Reasons”), the Authority rejected Natural Health’s contention that the Store is a “specialist organic store”, concluding that it is a "general store", specifically a “mixed business shop” within the meaning of s 31 of the Act. The Authority applied the definition of mixed business shop adopted by the Tribunal (Senior Member Leal) in MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATAD 260 (“MJ Trading”) at [19]:

“A mixed business is ‘a small grocery shop, which also sells a selection of other merchandise.’ According to the Macquarie Dictionary Online, a grocery is a commodity sold by grocers and a grocer is a dealer in general supplies for the table, as flour, sugar, coffee, etc., and in other articles of household use.”

19. In concluding that the Store was a mixed business shop, the Authority took into account its product inventory which listed approximately 5,500 items including pantry items (such as chocolate, tea, jam and flour), cleaning products, baby food, nappies, health and beauty items, homewares, apparel, pet supplies and refrigerated and frozen food products. The Authority characterised those items as being of a "day-to-day" or "household" nature: Reasons at [15].

20. The Authority rejected Natural Health's argument that the "organic, natural and eco-friendly" nature of many of its products was relevant to the consideration of whether it was a "general store": Reasons at [18].

Issues in dispute

21. The Authority may not grant a packaged liquor licence to premises comprising a general store unless satisfied that in the neighbourhood of the premises concerned, no other take-away liquor service is reasonably available to the public and the grant of the licence would not encourage drink-driving or other liquor-related harm: s 31(1). It is common ground that because several take-away liquor services are located near the Store, if determined that the Store falls within the definition of general store, Natural Health would be ineligible for a packaged liquor licence.

22. To be characterised as a general store, the subject premises must satisfy the three limbs to the definition of general store in s 31(3), that is:

1. be a convenience store, mixed business shop, corner shop or milk bar;

2. have a retail floor area of not more than 240 square metres; and

3. be used primarily for the retail sale of groceries or associated small items.

23. The parties agree that the Store satisfies the second and third limbs of the definition. In addition, with respect to the first limb, they agree that the Store could not be properly characterised as a convenience store, corner shop or milk bar. The point of disagreement concerns whether the Store could be properly characterised as a “mixed business shop”. The Authority contends that it can. Natural Health disagrees.

24. Accordingly the key issues to be determined in this review are:

1. what is the meaning of the term, “mixed business shop”?

2. does the Store come within that meaning?

Competing definitions

25. The Authority contends that the term mixed business shop means a shop that sells a mix of categories of miscellaneous day-to-day or household products. According to the Authority, a mixed business shop sells both food products and non-edible household and personal products. It argues that the hallmark of a mixed business shop is offering for sale a mix of categories of goods. While acknowledging that invariably it will be a question of degree, the Authority contends that a shop selling only one or two categories of goods but a wide range of products within those categories, for example, a delicatessen, bakery or health food shop, is not a mixed business shop.

26. While accepting that a mixed business shop and a convenience store share some common features, the Authority disagrees with the argument advanced by Natural Health that the two are closely analogous. The Authority argues that unlike a convenience store, a mixed business shop would generally not be expected to stock items that cover all essential short-term needs.

27. Citing MJ Trading, the Authority contends that the fact that a shop specialises in products which have a particular origin or branding, or have been selected to appeal to a particular market, does not bring it outside the definition of a general store.

28. On the other hand, Natural Health contends that a mixed business shop is closely analogous to the other types of shops listed in the definitions of general store and shares many common characteristics with those types of stores: generally being small, being located in roadside locations, trading long hours and selling a modest array of groceries and other goods, citing in support, Seldan Pty Limited v Liquor Licensing Commission (unreported, Supreme Court of Victoria, 15 May 1990) (“Seldan”). In addition, Natural Health asserts that generally those shops would sell food prepared on the premises such as sandwiches or hamburgers, and in addition, transport cards, phone cards, newspapers and magazines. It contends that “organic speciality shop” is a more apt description of the Store.

Principles of statutory construction

29. The parties broadly agree on the principles of statutory construction that should be applied to determine whether the Store can be properly characterised as a general store, specifically, a mixed business shop. Each assert that those principles support their respective contentions about whether the Store is, or is not, a general store.

30. First, the process of construction begins with a consideration of the text itself (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (“Alcan”) at [47], Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 (“Thiess”) at [22]). The text of the provision is to be construed according to the context “by reference to the language of the instrument viewed as a whole”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. The meaning of the text will often require consideration of the context, which includes the general purpose and policy of the provision and the mischief the provision is seeking to remedy (Alcan at [47]). Questions of context arise "in the first instance, not merely at some later stage when ambiguity might be thought to arise" (CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 (CIC) at 408; Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 at [31] and [57].

31. Second, it is permissible to have regard to legislative history and extrinsic materials to determine the meaning of the words used (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 at 107 [39]) and to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (s 34(1)(b) of the Interpretation Act 1987 (NSW)). However, it is first necessary to determine the ordinary or natural meaning of the words used because it is primarily from them that the intention of the legislator is to be ascertained: M P Metals Pty Ltd v Commissioner of Taxation [1968] HCA 89; (1968) 117 CLR 631 at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 (“Cooper Brookes”) at 304-305; Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 (“Provincial Insurance”) at 560.

32. Third, while it is permissible to consult well known and authoritative dictionaries to determine the ordinary meaning of a word, ultimately it is the Court’s or Tribunal’s “understanding of the sense in which words are currently used” which is determinative: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 514; Provincial Insurance at 560.

33. Fourth, in the absence of a contrary intention, the Act is to be taken to be "always speaking": Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130; 56 NSWLR 210 (“Hore”) (per Campbell J) at [40]; Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212 (“Chubb”) at [82].

34. Fifth, where two or more constructions of a statutory provision are available, a construction that promotes the purpose or object underlying the statute is to be preferred to a construction that would not promote that purpose or object: CIC at 408; s 33 of the Interpretation Act. Likewise, where two or more constructions of a provision are available, a construction that gives the provision a sensible operation will generally be preferred (CIC at 408).

MJ Trading

35. As in this case, MJ Trading concerned a decision by the Authority to refuse an application for a packaged liquor licence on the ground that the subject store, City Hanho, was a general store. The Tribunal affirmed that decision, concluding that City Hanho satisfied the definition of general store.

36. The Tribunal approached the task of ascertaining the meaning of the terms, convenience store, mixed business shop, corner shop or milk bar by consulting the Macquarie Dictionary and adopting the meaning it gave to those terms. Those definitions are set out at [53] of these reasons.

37. The Tribunal at [10] noted that the applicant described City Hanho not as a store that sells only groceries or associated small items but rather as “a specialty supermarket store that sells approximately 1900 items imported from South Korea as well as local products”.

38. At [17] the Tribunal noted that City Hanho offers a wide range of products including groceries, many of which are imported from Korea. The Tribunal found at [18] that City Hanho met the definition of corner shop being “a small local shop selling a range of goods for domestic consumption”.

39. In addition, the Tribunal concluded at [20] that City Hanho also met the definition of mixed business shop, reasoning that it “sells groceries, including flour, coffee and sugar in addition to ‘a selection of other merchandise’ including eye masks, bandages, black spoon and fork case sets, frying pans and ramen wave cookers”.

40. In rejecting the contention that City Hanho was a specialty supermarket and therefore fell outside the definition of general store, the Tribunal cited with approval the following passage from Maryland Development Co Pty Ltd v Penrith City Council & Anor [2001] NSWLEC 135, at [125]:

A general store must have a greater range and variety of product lines than a speciality shop. The range and variety depends upon the needs of those the store exists to serve, and the modern methods adopted for retailing. It is not, therefore surprising that a general store in urban areas will have a predominance of a variety of food related product lines available for its local and passing customers.

Textual considerations

Is it permissible to take into account the ordinary meaning of the term “general store”?

41. Natural Health contends that the Tribunal should disregard the defined term, “general store” and the common meaning of that term, citing in support Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265; Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 (“Singh”) at [97],[103],[110]. It contends that where, as here, a defined term refers to a particular class of items, its meaning is not coloured by the ordinary meaning of that term.

42. Citing in support the observations of Leeming JA in Singh at [127], the Authority contends that the “better view” is to treat the defined term as a check or reference point. If the meaning ascribed to the term is remote from the ordinary meaning of the defined term, it will be necessary to question whether that was the meaning the legislature intended. The Authority contends that the meaning Natural Health urges the Tribunal to adopt is narrower than the ordinary understanding of the term "general store".

Consideration

43. In Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 419; [1994] HCA 54 (“Shin Kobe Maru”), the High Court held:

“[T]he term to be defined does not colour the meaning to be given to the definition which follows it. It would be quite circular to construe the words of a definition by reference to the term defined.”

44. In Singh, Leeming JA (with whom all members of the Court on this issue agreed), after reviewing the authorities, questioned the above proposition. While accepting that it “is unquestionably circular” to “construe the words in a definition by reference to the term”, Leeming JA commented at [129] that it “is not necessarily inapt”:

“Fundamentally, the statute is to be read as a whole, having regard to context in the first instance. If what was said in Shin Kobe Maru be applied literally, then regard should be had to every word of the statute and its context except every reference to every defined term. That seems improbable, especially since it is to be expected that parliamentary counsel will choose defined terms so as to assist, rather than trip up, the reader. For that reason, I respectfully consider that there is real force in the proposition in Interpretation reproduced above that there is a difference between a statutory definition that “pets means dogs and cats” as opposed to “animals means dogs and cats” as opposed to “Word 1 means dogs and cats”.”

45. Leeming JA stated that “putting to one side the question of authority” the position is “quite nuanced”, listing at [127] four questions relevant to whether it is appropriate to have regard to the ordinary meaning of the defined term:

“(1)   Is the preclusive rule in Shin Kobe Maru one which is universally applicable (which is how it has recently been construed in the Queensland Court of Appeal)? Alternatively, is the court always entitled to have regard to the defined term? Or does the position vary depending upon the particular definition and particular regime?

(2)   Does it matter whether the definition is exhaustive, or merely inclusive? In the case of a merely inclusive definition, then the inability to have regard to the defined term must be diminished, because there will be, ex hypothesi, things which fall within the defined term but do not fall within the (non-exhaustive) definition.

(3)   Does it matter whether the definition is based on ordinary English words which have a clear meaning (such as “dangerous recreational activity”), or is an artificial term with no meaning apart from the regime established in the legislation?

(4)   Does the question turn on whether the definition is ambiguous?”

46. While questioning the rule in Shin Kobe Maru, the Court of Appeal decided in the absence of full argument, not to resolve the issue. The Court of Appeal concluded that the statutory definition of the defined term “recreational activity” cannot be read down by reliance on the ordinary meaning of the word “recreational”: at [34], [98]-[131], [142], [191]-[192].

47. Notwithstanding the issues raised by the Court of Appeal in Singh, the rule stated in Shin Kobe Maru remains binding authority. In addition, I note that s 31 gives an exhaustive but not inclusive definition of the defined term, “general store” which tends against a conclusion that regard should be given to that term: Singh at [19], [127](3).

Ordinary meaning of the term “mixed business shop”

Dictionary definitions

48. The parties agree that the terms “convenience store”, “mixed business shop”, “corner shop” and “milk bar” are ordinary English words and should be given their respective ordinary meanings. Neither suggested that those words bore any technical or special meaning. While they broadly agree about the ordinary meaning of the terms “convenience store”, “corner shop” and “milk bar”, they disagree about the meaning of the term “mixed business shop”. Citing MJ Trading, the Authority argues that the ordinary meaning of that term corresponds with the meaning given by the Macquarie Dictionary: “a small grocery shop, which also sells a selection of other merchandise”. Natural Health disagrees, contending that this is an example where adopting a dictionary definition of a term used in legislation can lead to anomalous results.

Principles

49. As stated above, while it is permissible to consult dictionaries to determine the ordinary meaning of a word, (the “ordinary usage of society”: Cooper Brookes at 305) ultimately it is a matter for the Court or Tribunal to determine the meaning.

50. A dictionary definition will not necessarily assist the task of ascertaining the meaning of a word in a particular statutory context. In Thiess at [23], the High Court cited with approval the oft-quoted warning against making "a fortress out of the dictionary" given by Judge Learned Hand in Cabell v Markham, 148 F 2d 737, 739 (2nd Cir, 1945).

51. Commenting on the usefulness and limitations of dictionaries, Mason P in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [28] stated:

A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.

52. More recently, in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68, Leeming JA at [80] made much the same point:

Dictionary definitions may assist in identifying the range of possible meanings a word may bear in various contexts, but will not assist in ascertaining the precise meaning the word bears in a particular context.

Meanings given by Macquarie Dictionary and the Oxford Dictionary

53. For the purpose of ascertaining the ordinary meaning of the four types of stores included in the definition of general store, I have considered the definitions given by the on-line versions of the Macquarie Dictionary and the Oxford Dictionary:

Milk bar

Macquarie Dictionary: “a shop, often with an open front where milk drinks, ice cream, sandwiches etc are sold”

Oxford Dictionary: “a cafe or snack bar selling milk drinks and other refreshments; (later esp.) Australian a corner shop or local general store selling sweets, newspapers, convenience food, etc., as well as milk, milkshakes, and ice creams”

Convenience store

Macquarie Dictionary: “a small shop which is open longer than the usual trading hours and offers a range of food and domestic items most commonly in demand”

Oxford Dictionary: “chiefly North American a small local shop; (now) esp. one with extended opening hours, stocking a limited range of household goods and groceries”

Corner shop:

Macquarie Dictionary: “a small local shop selling a range of goods for domestic consumption”

Oxford Dictionary: “a shop at the corner of a street; hence, a small local shop (as opposed to a multiple store, supermarket, etc.)”

Mixed business shop:

Macquarie Dictionary: “a small grocery shop, which also sells a selection of other merchandise”

Oxford Dictionary: “Australian a shop selling a wide variety of goods, often incorporating a newsagent, delicatessen, etc., and sometimes also a petrol station; a convenience store”

Grocery:

Macquarie Dictionary: “a commodity sold by grocers”

Oxford Dictionary: “the goods sold by a grocer”

Grocer:

Macquarie Dictionary: “a dealer in general supplies for the table, as flour, sugar, coffee, etc., and in other articles of household use”

Oxford Dictionary: “a trader who deals in spices, dried fruits, sugar, and, in general, all articles of domestic consumption except those that are considered the distinctive wares of some other class of tradesmen”

54. At the hearing neither party referred to the definition provided by the Oxford Dictionary of the term “mixed business shop”. While the decision was reserved, I invited the parties to comment on the appropriateness of that definition. Each submitted it supported their respective arguments.

55. Natural Health asserts that the Oxford Dictionary definition of mixed business shop closely aligns with Bridgepoint’s manager, Mr Jones’ understanding of the term: “a shop generally selling things like lollies, chocolates, ice-cream, soft drinks, sandwiches and maybe some hot foods, such as chips and the like. They might also carry bread, milk and a few ’top-up' grocery lines”. In addition, pointing to the second meaning given by Oxford Dictionary, “convenience store”, Natural Health contends that it supports its contention that a mixed business shop is closely analogous to a convenience store.

56. The Authority contends that on “any view” the Store meets the Oxford Dictionary definition. First, the Store sells a wide variety of goods. Second, pointing to the use of the word “often”— “often, incorporating a newsagent, delicatessen, etc.” — the Authority contends that that is not an essential characteristic of a mixed business shop. In any event, it contends that the Store stocks some delicatessen-style goods. Third, it contends that the use of “etc”, indicates that that the incorporated “specialty line” is not limited to “newsagent” or “delicatessen”.

Victorian decisions

57. Natural Health contends that several Victorian decisions, which I consider below, support its argument that the ordinary meaning of the term “mixed business shop” is not, as the Authority contends, a small grocery store selling a “mix” of goods. While acknowledging that those decisions are not binding, Natural Health argues that they are, nonetheless, persuasive.

58. The Authority argues that this submission must be rejected for the “simple reason” that the legislation considered in the Victorian decisions is different to, and has different policy objectives to, its NSW equivalent. The Authority points out that the statutory prohibition on liquor sales considered in the Victorian decisions:

1. applied to “premises … used primarily as a milk bar, convenience store or mixed business” and, in contrast to its NSW equivalent, contained no reference to “general store” or “corner shop”.

2. is not qualified by the requirement contained in s 31 of the Act that the premises be "not more than 240 square metres" and "used primarily for the retail sale of groceries or associated small items".

59. In addition, the Authority points out that the Victorian decisions are in the main dated and cannot reliably inform what is meant by the term “mixed business shop” in 2020.

60. In my view, because the relevant terms used in the Victorian and NSW legislation are general Australian expressions, the Victorian decisions may provide some insight about the ordinary meaning of those terms, notwithstanding the different regulatory context, and the attendant need to exercise caution.

61. In Seldan, Nathan J considered the question of whether the regulator, the Victorian Liquor Control Commission, erred in finding that Wonga Park Village Supermarket was a convenience store and therefore caught by the statutory prohibition on granting a liquor licence contained in s 60(1) of the now repealed Liquor Control Act 1987 (Vic) (“the 1987 Vic Act”). Under that provision, the Victorian Liquor Control Commission was not permitted to grant a liquor licence in respect of “premises that in the opinion of the Commission are used primarily as a milk bar, convenience store or mixed business”.

62. Nathan J concluded that the term "convenience store" must be interpreted ejusdem generis with the other types of premises enumerated in the subsection, namely milk bars and mixed businesses. His Honour went on at 5] 6 to “define the genus”:

“A "milk bar" is an antipodean phenomenon. Ordinarily the expression "bar" would denote the sale of liquor, but we are now familiar with snack bars, or even oyster bars. The word "bar" has come to mean a place from which a particular commodity is sold, for example, sandwiches from a snack bar, or places at which particular types of people gather. A milk bar has a more specialist meaning. It has come to denote a shop from which not only milk, but other processed foods, are sold. The man on the Glen Iris tram would readily understand that a kiosk on the beach front, albeit selling milk based drinks, was not a milk bar. The public recognition of a milk bar encompasses small shop front premises which sell newspapers, confectionery, small grocery items, occasionally prepared food and dairy produce. The list is not exhaustive, but premises from which cooked hamburgers were sold would not commonly be considered a milk bar, whereas premises from which sandwiches and sticky cakes were sold, would be. The remarks I have made in categorizing a milk bar also apply to the expression "mixed business". A mixed business is commonly taken to mean a small scale retail operation selling a variety of readily consumable products. They are referred to in the United States as Mamma and Poppa Stores. Although a big city department store would probably sell all of the products purveyed by a local mixed business, it would not be commonly perceived as a mixed business. Scale of operation, the range of products sold, and in some cases location, are all indicia of premises which would be commonly accepted as being mixed businesses or milk bars. (Emphasis added)

In my view, it is in this context that the expression "convenience store" should be interpreted. A convenience store has come to mean a place from which odd items are purchased as a matter of convenience, either because it is located near to the consumer, or is open at times which are convenient.

The concept of a convenience store is, to use a dreadful expression, adopted from the social workers, multifaceted. A wide range of goods are sold. That range is selected by the proprietor to suit the convenience of customers, as is also the case with mixed businesses or milk bars. Premises from which a particular product, or range of products are sold may cease to be convenience stores and become specialty shops, the parameters can never be defined and each case demands subjective investigation.”

…

The class of premises encompassed by milk bars, convenience stores or mixed businesses, are like those known in earlier times as the "local corner store" or the "local shop". These were in the past places of community congregation, and milk bars and convenience stores are often now places at which people meet to chat as well as to shop. The concept has moved into our colloquial speech. A milk bar cowboy is recognised as a bikie or person who frequents a milk bar as a meeting place (see Macquarie Dictionary). Thus the scale, product range, locality and ambience of premises all become relevant in deciding whether they fall within the prohibited class.” (Emphasis added)

63. In Jaza v DLL [2000] VCAT 1651, the Victorian Civil and Administrative Tribunal (“VCAT”) considered the meaning of the term “mixed business” in s 22(1) of the Liquor Control Reform Act 1998 (Vic) ("the 1998 Vic Act"), which was in similar but not identical terms to its predecessor s 60(1) of the 1987 Vic Act, considered by Nathan J in Seldan. At [27], the Tribunal cited with approval the meaning of “mixed business” adopted by the Victorian Liquor Licensing Commission, in Decision No 94 Sherwood Investments Pty Ltd, Pyramid Hill, 3 August 1989 (“Sherwood Investments”):

"One of the Directors of the store described the business as "basically mixed" in evidence. I agree with that description in the sense that more than one form of business is carried on in the store, and through the storage areas and yard around the store. However I do not regard the business, or the primary purpose of the business as being a mixed business in the conventional sense of those words as they apply to a corner store or milk bar which commonly provides products as milk, ice cream, drinks, confectionary, a limited range of groceries, sometimes a news sub-agency, video tapes for hire, tattslotto, a postal agency or a banking agency. I believe that it is in this latter conventional sense that the words "mixed business" are used …." (Emphasis added)

64. In Jones The Grocer Store Pty Ltd v Director of Liquor Licensing (Occupational and Business Regulation) [2009] VCAT 899 (“Jones The Grocer”), VCAT affirmed a decision to refuse to grant a liquor licence to a Jones The Grocer Store, situated in a large shopping centre selling “gourmet foods of high quality” for purchase and takeaway. While the decision did not turn on whether Jones The Grocer Store was a mixed business, in obiter the Tribunal rejected the regulator’s finding that it “had all the characteristics of a mixed business being a delicatessen, grocery store, café and wine bar …”:

“[I]it is difficult to see how these premises could be considered a mixed business or a convenience store. They are clearly quite a unique type of premises. They are not something that is found on each street corner. They do not sell the type of goods that one would expect of mixed business or convenience store.

More recently, in Sonia Martinez at Wattle Park Green Grocer premises (Liquor - internal review), [2018] VCGLR 8 (26 March 2018) (“Martinez”), the Victorian Commission for Gambling & Liquor Regulation concluded that the nature and purpose of the subject premises, an “organic health food store”, did not accord with the meaning of "mixed business" or "convenience store". The Commission considered relevant that the store’s operating hours were generally between 9.00 am and 6.00pm and not those of a “typical mixed business or convenience store”; the store did not sell products “typically supplied by a mixed business or convenience store, such as newspapers, magazines or hot food”; while some of the products sold are similar to those sold in a mixed business or convenience store, such as milk and bread, the half of the products sold are only available in the organic variety and the focus of the produce is on “gluten-free, dairy-free, gut health diets and low FODMAP diets”: [50]-[52]. The Commission concluded at [54] that nature and purpose of the applicant's business did not accord with the meaning of "mixed business" or "convenience store ".

65. The Authority’s primary submission is that it would be an error to treat the Victorian decisions as instructive or even persuasive. However, it contends, in, contrary to the submission made by Natural Health, that they support its position about the meaning of mixed business shop.

66. For example, in Seldan, Nathan J stated:

"[A] mixed business is commonly taken to mean a small scale retail operation selling a variety of readily consumable products ... Scale of operation, the range of products sold, and in some cases location, are all indicia of premises which would be commonly accepted as being mixed businesses" (pp 5,6).

67. With respect to Martinez, the Authority points out:

1. It was a decision of a regulator not a Court or Tribunal;

2. the subject business was substantially different to that operated by Natural Health. Among other things, Martinez:

1. did not sell a "mix" of product categories but was focussed on "the sale of foods which complement health-related conditions";

2. derived 40% of its revenue from "fresh produce"; in contrast, Natural Health does not sell fresh produce;

3. employed two staff trained to provide recommendations to customers on specialist diets; in contrast, there is no evidence that Natural Health employs specialist staff;

4. only 10% of its non-grocery lines are available at supermarkets; in contrast, the Authority contends that “many” of the Store’s products are available at supermarkets.

3. in any event, the meaning of mixed business adopted by the regulator was consistent with its preferred meaning "a small grocery which also sells a selection of other types of merchandise".

Ejusdem generis

68. The parties agree that the terms convenience store, mixed business shop, corner shop or milk bar are to be construed ejusdem generis (where general words follow particular words that denote a class, they may be construed as limited to that same class). However, they disagree about the common genus or common characteristics.

69. The Authority contends that the common characteristics are: selling day-to-day household products; being visited frequently by customers a couple of times a week to restock items or; for customers who typically purchase those items at supermarkets, being visited incidentally.

70. On the other hand, Natural Health contends that the common characteristics are being small, usually trading for long hours and being found in roadside locations, selling a modest array of groceries and other goods, and offering food for take away.

Consideration

71. I am not convinced, as the parties contend, that the principle ejusdem generis applies in this case. In my view, the principle noscitur a sociis (the meaning of a word can be gathered from its context), of which ejusdem generis is a sub-category, is probably a more useful aid to construction. Arguably, it is not necessary to refer to that principle but suffice to say that it is permissible, if not necessary, to have regard to the context in which the term mixed business shop appears. As explained by Leeming JA in Elizabeth Bay Road Pty Ltd v The Owners — Strata Plan No 73943 [2014] NSWCA 409 at [82]:

“It is axiomatic that (a) the words in a sentence are not building blocks whose meaning is unaffected by the rest of the sentence, (b) the sentence is the unit of communication by which language works, and (c) the significance of individual words is affected by other words and the syntax of the whole sentence.”

72. I will return to consider the question of whether the four stores share common characteristics.

Always speaking

73. The Authority contends that the meaning Natural Health urges the Tribunal to adopt rests on a historic archetype reminiscent of the mixed businesses of the 1960’s and 1970’s. The Authority contends that this “sepia tinged” interpretation fails to give effect to the principle that a statute is “always speaking”: Hore at [40]. In support, the Authority points to the evidence given by Mr Jones, who stated that there are not many shops of that type, that is, a shop akin to a corner shop or convenience store selling lollies, chocolates, ice cream, soft drinks, sandwiches, milk, bread, a few “top-up” grocery lines, transport and phone cards.

74. Natural Health rejects the contention that the meaning it urges the Tribunal to adopt is an anachronism. While accepting that the term “mixed business shop” is not frozen in time, it points to Mr Jones’ evidence that shops of that type still exist.

Contextual indicators

Legislative History

75. Natural Health contends that the legislative history supports its contention that the purpose of the statutory prohibition contained in s 31 was to guard against impulse purchases of alcohol in locations convenient to passing traffic, therefore increasing the potential for drink-driving. The Authority contends that this was not the sole purpose of the prohibition and that it was also designed to prevent consumers making impulse purchases of alcohol while going about their day-to-day shopping.

76. The predecessors to ss 30 and 31 of the Act, s 49C(1) and s 49C(2) of the the 1982 Act, contained a conditional prohibition on “off-licence” liquor sales (broadly the equivalent of a “packaged liquor licence”) by “convenience stores” and “service stations”. However, that prohibition did not apply if the Court was satisfied that: (a) in the neighbourhood of the premises to which the application relates, no other take-away liquor service is reasonably available to the public, and (b) the grant of the licence would not encourage drink-driving or other liquor-related harm: s 49C(2) of the 1982 Act. As is apparent, those criteria are materially identical to those listed in s 31(1) of the current Act.

77. Section 49C(3) of the 1982 Act defined “convenience store” to mean:

(3)   In this section:

convenience store means a building or place having a retail floor area of not more than 240 square metres used for the purpose of selling, exposing or offering for sale by retail principally groceries, smallgoods and associated small items which is open for business in the interests of public convenience at hours beyond the trading hours of an off-licence, as prescribed by section 26 (2).

…

(Immediately before the 2004 amendment of s 49C, the trading hours of an “off-licence” were between 5:00 am to midnight and 10:00 am to 10:00 pm on Sunday: s 26 of the 1982 Act. )

78. In the second reading speech of the Liquor Amendment Bill 1999 (NSW), which inserted s 49C into the 1982 Act, the Minister for Gaming and Racing stated:

"However, the Government is concerned about the potential for abuse and misuse where liquor may be sold as part of a mixed business operation or service station. That is especially so where liquor is sold alongside milk, bread, ice creams and newspaper, and when the sale of liquor is not the primary activity of that business. The Government does not accept the argument that liquor should be treated as a normal commodity like bread, milk and newspapers. ... These amendments will achieve the Government's policy of ensuring adequate and proper controls, while also recognising the important services that some of these premises provide in remote areas [such as the provision of postal, banking and general store facilities, as well as liquor sales]." (New South Wales, Legislative Assembly, Debates, 26 October 1999, p. 1987) (emphasis added).

79. In 2004, the National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Act 2004 (NSW), amended s 49C by:

1. making absolute the prohibition in s 49C(2) on the grant of an off-licence (retail) licence to a service station;

2. replacing the term “convenience store” with the term “general store”;

3. inserting a definition of “general store”: “a convenience store, mixed business shop, corner shop or milk bar that has a retail floor area of not more than 240 square metres and that is used for the purpose of selling, exposing or offering for sale by retail principally groceries, smallgoods or associated small items”.

80. In the second reading speech to the National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Bill 2004 (NSW), Premier Mr Bob Carr stated:

“More importantly, the bill will impose an absolute ban on the sale of alcohol through petrol stations and expand the current restrictions on the sale of alcohol by broadening the definition of convenience stores to include corner shops, mixed businesses, and milk bars while retaining special exemptions for small towns and remote areas. We will not allow the Commonwealth's demands to result in a proliferation of liquor outlets across New South Wales if we can possibly prevent it.”

(Emphasis added.)

81. The explanatory note to that Bill stated that the Bill’s objects included:

“[T]o provide that the existing restrictions on granting an off-licence (retail) that apply in relation to convenience stores will also apply to other general stores such as mixed business shops, corner shops and milk bars”.

82. The explanatory note went on to state (at 4):

"[T]he term convenience store is replaced with general store so that the restriction on granting an off-licence (retail) licence to such a store will extend to other similar stores such as mixed business shops, corner shops and milk bars regardless of their opening hours.” (Emphasis added)

83. On its enactment on 1 July 2008, the Liquor Act 2007 (NSW) retained the prohibition on alcohol sales in s 49C of the 1982 Act. The only material change made was to extend the absolute prohibition on alcohol sales to take-away food shops.

84. The Authority contends that the legislative history to s 31, specifically the 2004 amendments, which saw the term “convenience store” replaced by “general store” and the insertion of the term mixed business shop, tends against Natural Health’s argument that the latter is in effect analogous to the term convenience store.

Impractical to administer

85. Each party contends that the definition proposed by the other would be impractical, if not impossible, to administer.

86. Natural Health contends that to implement the definition proposed by the Authority, the decision-maker would be required to determine what constitutes a category of items, what constitutes a mix of items and whether the subject premises sold a mix of items from within those categories. Further, it contends that contrary to the Authority’s submissions, the definition it proposes is likely to capture bakeries, delicatessens and natural health food stores. It gives as an example a delicatessen that sells salami, olives, and associated smallgoods and also tuna, olive oil, cakes and religious paraphernalia; a greengrocer which, in addition to fruit and vegetables, sells flowers and delicatessen items.

87. The Authority contends that the definition proposed by Natural Health would require the decision-maker to embark on an indeterminate enquiry and decide what counts as a “speciality store”, in contradistinction to a convenience store or a mixed business shop. The decision-maker would be required to determine whether a shop that would otherwise fall within the definition of mixed business shop or convenience store avoids that classification on the basis of its purported specialty, be it country of origin of the stocked goods or their appeal to a particular market. The decision-maker would then be required to determine whether the stocked goods fell within those speciality categories. Here for example, it would require the decision-maker to decide whether the Store’s goods were “organic” and/or “natural”, a task it contends is made difficult by the absence of a national certification system for organic goods.

Conclusion

88. The central question to be determined is whether the Store can be properly characterised as a mixed business shop. Before answering that question, it is useful to make some observations about the environment in which the Store operates.

89. Within NSW, there are many types of retail stores. The type of goods they stock is infinitely variable. Notably, in recent years the distinction between product lines once stocked only by particular types of stores is becoming blurred. It is now unremarkable to find pharmacies stocking washing powder and oven cleaner; butchers stocking pasta and gourmet delicatessen items; the supermarket giant Aldi stocking camping equipment and television sets.

90. It is a matter of common knowledge that in NSW cities, the once common corner stores, milk bars and the type of mixed business shops described by Nathan J in Seldan appear to be declining in number. In contrast, convenience stores, or at least shops advertising themselves as such, appear to be going against that trend.

91. In addition, it is a matter of a common knowledge that the 21st century has seen changes in consumer behaviour. Buying patterns of individual consumers vary. Some consumers purchase grocery and associated small items online. Some purchase such items at supermarkets. Others purchase those items at small retail outlets and/or local markets. Some use a combination of the above.

92. It is against this changing landscape that the central question posed - whether the Store can be properly characterised as a mixed business shop - must be answered. That is not an easy task and ultimately involves an impressionistic judgement. I note that Bridgepoint apparently finds it difficult to categorise the Store. In 2019, its website listed the Store under the unhelpful category, “shops” together with “Hot Bargain Discount”. In contrast, the website listed Bridgepoint’s 33 other “specialty stores”, using more specific and descriptive categories such as bakery, beauty and health.

93. In answering the central question, the starting point is the text of s 31, which instructs that a mixed business shop:

1. is neither a petrol station nor a take-away food store, as those terms are defined by s 31;

2. has a retail floor area of not more than 240 square metres;

3. is used primarily for the retail sale of groceries or associated small items.

94. I agree with the Authority that the listing of a mixed business shop alongside three other types of shops is a powerful indicator that those terms are not interchangeable. That argument finds support in the legislative history, in particular the 2004 amendments to the 1982 Act which saw the conditional prohibition on liquor sales then applying to a “convenience store” extended to a “mixed business shop, corner shop and milk bar”. While those terms may bear different meanings, the more difficult question remains: what is their point of difference?

95. In addition, I agree with the Authority’s argument that the mischief s 31 was intended to address was not limited to drink driving. That is apparent from the text of that provision which states that a packaged liquor licence cannot be granted to a general store unless the Authority is satisfied that “the grant of the licence would not encourage drink-driving or other liquor-related harm”: s 31(1)(b). While the legislature’s concern clearly extended beyond drink-driving, given the many types of liquor-related harm, the text of s 31(1)(b) provides limited assistance in identifying the type of alcohol-related harm it sought to address.

96. In my view, it can be inferred from the absolute prohibition applying to take-away food shops, that the legislature apprehended that a risk of alcohol being purchased and consumed together with take-away food. Support for that conclusion is found in the second reading speech of the Liquor Amendment Bill 1999 (NSW), (see [78] above) in which the Minister stated:

“For some time the Government has been concerned about the interconnections between the purchase of takeaway liquor, the potential for impulse purchases and drink driving”. (emphasis added)

97. With respect to the Authority’s argument that the legislature was concerned to reduce the risk impulse purchases of alcohol while consumers went about their day-to-day shopping, I note that the reference to “impulse purchases” in the second reading speech appears in the context of the “interconnections between the purchase of takeaway liquor, the potential for impulse purchases and drink driving”. Nonetheless, the reference in the second reading speech to the potential for abuse and misuse where “liquor may be sold as part of a mixed business operation … especially so where liquor is sold alongside milk, bread, ice creams and newspaper” provides some support for the Authority’s argument.

98. Turning now to the meaning of the term “mixed business shop”, for the following reasons I reject the Authority’s argument that the meaning given by the Macquarie Dictionary — “a small grocery shop, which also sells a selection of other merchandise” — should be adopted.

99. First, the text of the statutory definition of general store tends against that meaning. If the Authority is correct, the second and third limbs of that definition — that the premises be small (a retail floor area of not more than 240 square metres) and be used primarily for the retail sale of groceries or associated small items — would have little work to do. This difficulty is not cured by the Authority’s contention that the hallmark of a mixed business shop is a mix of product categories being offered for sale. It is difficult to imagine a “small grocery shop” that would not offer a mix of product categories.

100. Second, if by the term “mixed business shop” the legislature meant in effect “small grocery shop”, it raises the question why it did not use that commonly understood term.

101. Third, for the reasons discussed below, the Macquarie Dictionary does not accord with my understanding of the ordinary meaning of the term.

102. Fourth, with respect to the argument that the decision in MJ Trading is “not plainly wrong” and should be followed, it appears from the reasons for that decision, specifically the decision to adopt the definition of mixed business shop given by the Macquarie Dictionary, that neither party took issue with that approach. Nor does it appear that the parties brought to the attention of the Tribunal the extensive material, including legislative history, I have had the advantage of considering. The decision could not be characterised as “seriously considered dicta”.

103. That the term “mixed business shop” has entered the common language of modern Australia is evidenced by the fact that it is now contained in two authoritative dictionaries. While broadly similar, the meanings given by the Macquarie and Oxford dictionaries are not identical.

97. While I am not bound to adopt either meaning, nonetheless, in my view that offered by the Oxford Dictionary comes closer to my understanding of the ordinary meaning of the term “mixed business shop”. In contrast to the Macquarie Dictionary, it suggests something more than a small grocery store which also sells a selection of other merchandise. Of particular significance, in my view, is the reference in the Oxford Dictionary to “often incorporating a newsagent, delicatessen, etc., and sometimes also a petrol station; a convenience store”. While, as the Authority points out, the use of the word “often” indicates that to incorporate a newsagent, delicatessen etc., is not an essential element of a mixed business shop, it recognises that this will often be the case. In my view, this more closely accords with the ordinary meaning of the term “mixed business shop”. That is, a shop which in addition to selling groceries and a selection of other merchandise incorporates some other type of business or activity such as a newsagent, delicatessen, post office, small café, take-away food outlet.

98. That conclusion is consistent with a common observation made throughout the Victorian decisions cited by Natural Health: for example, “sometimes a news sub-agency, video tapes for hire, Tattslotto, a postal agency or a banking agency (Sherwood Investments); “all the characteristics of a mixed business being a delicatessen, grocery store, café and wine bar” (Jones the Grocer).

99. In introducing s 49C of the 1982 Act, the legislature appears to have considered that the four types of shops listed in the definition of general store were similar in nature. (See for example, the reference in the explanatory note set out at [82] above to “other similar stores such as mixed business shops, corner shops and milk bars regardless of their opening hours”. (Emphasis added). However, identifying their common characteristics in my view is a difficult task. Apart from being small and selling groceries and some form of take-away food, I am not convinced that it can now be said that the stores share any additional common characteristics. While being located in roadside and local locations was probably a common characteristic 20 years ago, the proliferation of convenience stores in central locations, including transport hubs, goes against Natural Health’s argument that this remains the case. Nor am I persuaded by the Authority’s argument that a common feature of each of the four types of stores is being visited frequently by customers to restock household goods on a day-to-day basis, or in the case of customers who typically purchase those items at supermarkets, being visited incidentally. For example, I am not persuaded that milk bars are typically used by consumers to restock household goods

100. Contrary to the submissions made by the parties, I am not persuaded that the fact that the Store specialises in products that are, or claim to be, “organic and natural” is determinative. A confectionary store is no less a confectionary store because it specialises in organic confectionary. Similarly, a milk bar which markets itself to “hipsters” is no less a milk bar because of that fact. Nevertheless, how a business positions itself in a market may be, as I explain below, relevant to its proper categorisation under the Act.

101. Finally, I accept the Authority’s submission that this is an appropriate case in which to regard the relevant provisions of the Act as “always speaking”. Nonetheless, I reject the contention that the Store is simply a modern version of the mixed business shop of 20 years ago, which seeks to appeal to a “LOHAS” demographic.

102. For the reasons given above, I am not persuaded that a small grocery store which sells a mix of products fully captures the ordinary meaning of the term “mixed business shop” used in s 31. The definition offered by the Oxford Dictionary offers a better fit — that is, a shop which in addition to selling groceries and a selection of other merchandise, incorporates some other type of business or activity, such as a newsagent, delicatessen, post office, small café, take away food outlet. Intangible features, such as those nominated by Nathan J in Seldan at [6]: “scale, product range, locality and ambience of premises”, may also assistance in determining whether a particular store can be categorised as a mixed business shop.

103. While undoubtedly the Store sells a wide range of goods for domestic use, of itself this does not make it a mixed business shop. In my view, the fact that the Store does not incorporate some other type of business such as those listed at [104] above, or offer customers some other form of service, tends against a conclusion that the Store is a mixed business shop. I am not persuaded that the Store falls within the definition of general store.

Remit or determine?

111. Having found that the Store does not fall within the definition of general store, it is necessary to decide whether to grant or to refuse to grant a packaged liquor licence to Natural Health. The Authority urges the Tribunal to remit that decision. Natural Health opposes that course and urges the Tribunal to determine the merit of its application. It contends that remittal will result in further delay and is inconsistent with the “guiding principle” of the Civil and Administrative Tribunal Act 2013 (NSW) — the facilitation of the just, quick, and cheap resolution of the real issues in the proceedings.

112. Having decided that the Store is a general store, the Authority did not proceed to determine whether Natural Health satisfied the requirements imposed by the Act on holders of a packaged liquor licence. They include that “the overall social impact of the licence ... will not be detrimental to the well-being of the local or broader community”: s 48(5) of the Act.

113. Before the question of whether Natural Health satisfies those requirements can be determined, it is necessary to address a procedural issue raised by the Authority. Apparently, as was the common practice before the recent decision of the Court of Appeal in Independent Liquor andGaming Authority v Auld [2019] NSWCA 88 (“Auld”), Natural Health’s application for a packaged liquor licence was stated to be made in respect of the area surrounding the counter of the Store where the liquor was proposed to be displayed (“the liquor sales area”, see s 30 of the Act), not the whole of the retail area of the Store. In Auld the Court of Appeal explained at [8], [9] that an application for a packaged liquor licence must be made in respect of the whole of the premises and not just the liquor sales area.

114. The Authority contends that, as a consequence of this procedural defect, it is necessary to inform those persons who were previously consulted about Natural Health’s application as required by the Act, and that the application is not made in respect of the proposed liquor sales area (7 square metres) but rather the total retail area of the Store (101 square metres).

115. Natural Health disagrees and contends that the persons consulted about its application were correctly informed that its application was made in respect of the Store and that all liquor would be kept in the proposed liquor sales area. It points out that the Tribunal may disregard a failure to comply with the advertising requirements applying to the obligation to notify certain people about a proposed licence, if satisfied that that failure “is of a minor or technical nature”: cl 26 of the Liquor Regulation 2018 (NSW).

116. I am inclined to the view that Natural Health’s failure to comply with the consultation requirements is probably of a technical nature. Nonetheless, I have decided a cautious approach is warranted and to remit the matter to the Authority for redetermination. In reaching that decision, I note that the Authority states that it will not require Natural Health to make a fresh application but rather will exercise its powers under cl 30(5) of the Liquor Regulation to extend the period in which any person may make submissions about the (revised) application.

Orders

1. The decision made by the Independent Liquor and Gaming Authority to refuse to grant a packaged liquor licence to D & D Natural Health Pty Ltd is set aside and remitted to the Authority for reconsideration in accordance with the Tribunal’s decision that the subject premises is not a “general store” within the meaning of s 31 of the Liquor Act 2007 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 December 2020