Gregory v Independent Liquor & Gaming Authority

[2025] NSWCATAD 170

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gregory v Independent Liquor & Gaming Authority [2025] NSWCATAD 170

Hearing dates:

13 May 2025

Date of orders:

16 July 2025

Decision date:

16 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

The application for review is dismissed pursuant to the Civil and Administrative Review Tribunal Act 2013 (NSW), s 55(1)(b).

Catchwords:

ADMINISTRATIVE LAW – administrative review – whether decision to impose conditions on a liquor licence is reviewable – not a prescribed decision

Legislation Cited:

Civil and Administrative Tribunal Act, s 55(1)(b)

Gaming and Liquor Administration Act 2007 (NSW), s 13A

Gaming and Liquor Administration Regulation 2024

Liquor Act 2007 (NSW), ss 49, 51, 53

Cases Cited:

Burwood RSL Club v Independent Liquor & Gaming Authority [2025] NSWCATATD 78

O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 359

Secretary, Department of Family and Community Services v Hayward (a pseudonym) 2018 NSWLR 98 599; [2018] NSWCA 209

Technical Products Pty Ltd v State Government Insurance Office [1989] HCA 24; (1989) 167 CLR 45

Travelex v Commissioner of Taxation (2010) CLR 510; [2010] HCA 33

Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642

Texts Cited:

Geddes & Pearce, Statutory Interpretation in Australia 8th Edition, 2014, Lexis Nexis Butterworths

Herzfeld & Prince, Interpretation 3rd Edition, 2024, Thompson Reuters

Category:

Procedural rulings

Parties:

Christine Gregory (Applicant)
Independent Liquor & Gaming Authority (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
R Mansted (Respondent)

Solicitors:
AMW Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2025/00019023

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The Applicant, Ms Gregory, holds a hotel liquor licence granted under the Liquor Act 2007 (NSW) in respect of premises known as The Coopers Hotel Newtown (Premises).

2. In May 2024, the Applicant submitted four separate applications to the respondent, the Independent Liquor & Gaming Authority (Authority), in respect of the Premises which, in summary, concerned an application for a new extended trading authorisation which appears to have related only to internal areas of the Premises and was made under the Liquor Act, s 49; an application to vary the closure times under the Liquor Act, s 11A; permission to change the liquor closure period allowing trade to midnight on Sundays; and an application for a change to the gaming shut-down hours for each day of the week.

3. On 20 November 2024, the Authority resolved that:

1. The application for a new extended trading authorisation was approved;

2. The application for a change of licence conditions (varying closure times) was approved;

3. The application concerning a change to the liquor closure period, allowing trade to midnight on Sundays, was approved; and

4. The application to change the gaming shutdown hours was refused.

4. In determining the various applications, the Authority, as it was empowered to do, also resolved to impose 14 conditions on the Applicant’s licence. Only one, being Condition 14, is relevant to the proceedings before the Tribunal.

5. Following the making of the resolutions, the Authority communicated its decision to the Applicant in writing on 20 December 2024. It did so in the following terms:

We approve the application for a new extended trading authorisation, change of conditions and change of liquor closure period under section 49, 53 and 11A of the Liquor Act 2007 – with the conditions set out in Schedule 1. The 6-hour closure period overrides any condition of the licence.

We refuse the application for a variation to gaming shutdown hours under Section 41 of the Gaming Machines Act 2001 and impose a late-night gaming condition which prohibits the hotel from operating gaming machines after midnight. [original emphasis]

6. Attached to the communicated decision was Schedule 1, which is referred to in the passage above and which is in identical terms to the Annexure A referred to in the resolutions. The full title of Schedule 1 was “Schedule 1: Licence conditions to be imposed – The Coopers Hotel Newtown”. Relevantly, Condition 14 to Schedule 1 provided that “no gaming machines will be operated after 12:00 midnight”.

Issue

7. The Authority has contended at an early stage that the decision, the subject of Ms Gregory’s application to the Tribunal, is not capable of being reviewed by it and should be dismissed pursuant to the Civil and Administrative Tribunal Act, s 55(1)(b).

8. The relevant decision involved the imposition of a condition on an existing hotel liquor licence prohibiting the operation of gaming machines after midnight. The issue for determination is whether the Tribunal has jurisdiction to conduct a merits review of the Authority's decision to impose a condition of this kind in the manner in which it did so.

9. For the reasons that follow, I have determined that the Tribunal does not have jurisdiction to determine the application, and it will be dismissed.

Application for adjournment of the jurisdiction question

10. At the date when the Tribunal heard the Authority’s application concerning jurisdiction, an appeal was pending that is to be heard on 25 July 2025 with regard to the decision of PM Ransome in Burwood RSL Club v Independent Liquor & Gaming Authority [2025] NSWCATATD 78. Accordingly, the Authority submitted that the hearing of the present jurisdictional question should be adjourned pending the hearing of the appeal to avoid any inconsistency of outcome.

11. There are some similarities between the decision in Burwood RSL Club, notably the condition that the subject of the application in those proceedings is in almost identical terms to Condition 14. However, the similarities between the present application and Burwood RSL Club were not total. In the Burwood RSL Club decision, the Tribunal concluded, at [39], that the Authority’s decision to impose a condition restricting the operation of gaming machines to 2:00 AM was an application in relation to an application for the removal of a licence to other premises. The present application concerns a condition imposed on a licence in a different factual context. The question of whether a condition has been imposed with regard to an extended trading authorisation did not arise in Burwood RSL Club, which was specifically concerned with a condition imposed on a licence and whether that condition was imposed “in relation to” the transfer or removal of the licence to different premises. I considered those differences to be material and unlikely to give rise to inconsistent outcomes; therefore, I declined to grant the adjournment.

12. If either party seeks to appeal from the present decision, it will be a matter for the appeal panel in case management to determine whether such an appeal should be heard together with the appeal from Burwood RSL Club.

Legislation

13. The right of an applicant to seek merits review of a decision made by the Authority in this Tribunal is not plenary. Though the Applicant in this case is undoubtedly a relevant person, she is only able to apply to this Tribunal in the circumstances set out in the Gaming and Liquor Administration Act 2007 (NSW), s 13A, and the Gaming and Liquor Administration Regulation 2024 and the Administrative Decisions Review Act 1997 (NSW) and the Civil and Administrative Tribunal Act 2013 (NSW). In particular, the Gaming and Liquor Administration Act, s 13A(1) provides:

13A   Review by NCAT of certain decisions of Authority

(1)  A relevant person who is aggrieved by a decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation prescribed by the regulations for the purposes of this section (a prescribed application) may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of that decision.

14. Relevantly, Gaming and Liquor Regulation 2024, r 4 sets out what a “prescribed application” is. The regulation provides:

4 Administratively reviewable decisions—the Act, s 13A

For the Act, section 13A(1), the following applications are prescribed—

(a)  an application for the granting, or removal to other premises, of the following under the Liquor Act 2007—

(i)  a hotel licence,

(ii)  a club licence,

(iii)  an on-premises licence relating to a public entertainment venue other than a cinema or theatre,

(iv)  a packaged liquor licence, other than a packaged liquor licence limited to the sale of liquor by telephone, facsimile, mail order or the internet,

(b)  an application for an ongoing extended trading authorisation in relation to a licence specified in paragraph (a), if the authorisation would allow trading after midnight,

(c)  an application to vary or revoke a condition imposed by the Authority on a licence specified in paragraph (a)(i)–(iii), if the variation or revocation would allow trading after midnight,

…

What is the decision under review?

15. There is no doubt that the application does not meet the criteria in r 4(a). This is not an application for the granting of a hotel licence or the removal of an existing hotel licence to other premises.

16. By her written submissions, the Applicant contends that her application meets the definition of a prescribed application under r 4(b) in that it is an application for an ongoing extended trading authorisation in relation to a hotel licence where the application allows trading after midnight.

17. Pausing there, I note that the Applicant did not contend that her application was a prescribed application under r 4(c). Even had she made such a submission, I would have rejected it because the effect of the variation or revocation of Condition 14 would not then allow trading after midnight; it would only allow the operation of gaming machines in addition to whatever other activities are encompassed in the term “trading”.

Under what provision of the Liquor Act was the decision under review made?

18. The parties, in both their written and oral submissions, addressed the Applicant’s contention that the decision to impose the condition was made under the Liquor Act, s 51 or s 53. The Liquor Act, s 51 deals with the power of the Authority to impose conditions on an extended trading authorisation; whereas s 53 deals with the Authority’s power to impose conditions on a liquor licence.

19. The Applicant submitted that, while Condition 14 is a condition placed on the liquor licence, it is necessarily a condition in relation to the extended trading authorisation because, among other reasons, the condition applies specifically to the operation of the Premises during the extended trading period. On that basis, according to the Applicant, it should be properly construed as being a condition imposed on the extended trading authorisation pursuant to the Liquor Act, s 51. Alternatively, the Applicant submitted that the decision to impose the condition on the licence is in relation to the extended trading authorisation application, which, on her submission, would bring the decision under review within the terms of the Gaming and Liquor Administration Act, s 13A(1) was a decision of the Authority in relation to a prescribed application.

20. By characterising the decision in this way, the Applicant seeks to navigate the problems that, if Condition 14 was imposed on the hotel licence, then her application has the effect of seeing to vary or revoke a condition imposed by the Authority of a hotel licence in circumstances where the variation or revocation would not impact upon the ability of the Applicant to trade at the Premises after midnight other than a prohibition concerning the operation of gaming machines. As noted above, since the condition only prohibits the operation of gaming machines after midnight but permits late-night trading on the Premises, it is excluded from being a prescribed application under the operation of the Gaming and Liquor Administration Regulation, r 4(c). The real question, therefore is whether the fact that the “authorisation would allow trading after midnight” means that the application comes within r 4(b).

21. The Authority submitted that the decision is manifestly one which relates to the imposition of conditions on the licence. In particular, the Authority pointed to the fact that Condition 14 was expressed in the Authority’s resolutions, its reasons and on the licence as a condition on the Applicant’s liquor licence and not a condition on the extended trading authorisation. Further, the Authority expressly relied on s 53 in setting out its reasons for imposing Condition 14. Moreover, the title of Schedule 1 refers to conditions of the licence, and not the extended trading authorisation.

22. Having regard to the express terms of its decision and fact that each of the conditions, including Condition 14, which are expressed as being imposed on the licence, I agree with the Authority’s that the conditions, including Condition 14, were imposed on the licence and not, as the Applicant contended, on the extended trading authorisation.

23. However, ultimately, this finding does not significantly affect the determination of the ultimate question of jurisdiction since r 4(b) provides that a prescribed application includes an application for an ongoing extended trading authorisation in relation to (relevantly) a hotel licence.

Consideration of the phrase “in relation to”

24. Had I considered that Condition 14 applied only to the extended trading authorisation, then the condition would have applied to an ongoing extended trading authorisation in relation to a hotel liquor licence. However, for the purposes of r 4(b), that conclusion cannot be the end of the matter; what is then required is that the authorisation “would” allow trading after midnight. In this case, the extended trading authorisation granted to the Applicant does allow trading after midnight. Accordingly, there is nothing to review in relation to the granted extended trading authorisation.

25. The Applicant’s submissions in this regard rely heavily on the words “in relation to”; a term which is found in both s13A(1) and in r 4(b). With regard to the phrase as found in those provisions, the Applicant submitted that:

“… The imposition of the Condition on the licence does not detract from that decision being one in relation to the ETA application.”

[original emphasis]

26. Later in her written submissions, the Applicant further submitted that:

“… If it had been the intention to confer an appeal right only against decisions to refuse (or to grant in part) listed types of application, rather than decisions to approve with conditions, then the words “in relation to” would not have been used. Section 13A(1) could have referred simply to a decision granting or refusing the prescribed application …”

27. For the following reasons, I do not accept either of the Applicant’s submissions regarding the application and construction of the phrase “in relation to” as it appears in either the Gaming and Liquor Administration Act, s 13A(1) and the Gaming and Liquor Administration Regulation r 4(b).

28. The term “in relation to” has been the subject of substantial judicial consideration: Travelex v Commissioner of Taxation (2010) CLR 510; [2010] HCA 33, O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 359; Secretary, Department of Family and Community Services v Hayward (a pseudonym) 2018 NSWLR 98 599; [2018] NSWCA 209 and commentary from learned authors: Geddes & Pearce Statutory Interpretation in Australia at [12.7] and Herzfeld & Prince Interpretation 3^nd Edition at [4.420]. The phrase connotes a connexion between two subject matters, which is broad in terms and determined by reference to context in which the phrase appears: Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 (1988) 165 CLR 642 at 653, Technical Products Pty Ltd v State Government Insurance Office [1989] HCA 24; (1989) 167 CLR 45 at 47, 175.

29. The first relevant use of the phrase “in relation to” appears in s 13A(1), in which it is used to connect “a decision of the Authority” to a “prescribed application”. Accordingly, if the Tribunal cannot find a prescribed application, then its administrative review jurisdiction does not arise. The Applicant submitted that:

The decision to impose the condition on the licence is one that is in relation to the ETA application, thus bringing the decision under review within the words of s 13A(1).

30. However, and contrary to the Applicant’s submission extracted immediately above, I can find no support in the text of either s 13A(1) or r 4(b) that a decision to impose a condition on a hotel licence in relation to an extended trading authorisation application is a prescribed application.

31. The second relevant use of the phrase “in relation to” appears in r 4(b), which is the definition of prescribed application that the Applicant relies upon to submit that the Tribunal has jurisdiction. However, the phrase “in relation to” in r 4(b) is only to link an application for an extended trading authorisation with any of the four types of liquor licences enumerated in r 4(a). There is no controversy that the extended trading authorisation granted to the Applicant is in relation to the hotel licence she holds. The effect of that linkage is merely that other types of liquor licences for which an extended trading authorisation might be granted, such as a producer/wholesaler licence, are not capable of being prescribed applications because those types of licences are not listed in r 4(a).

Conclusion

32. Accordingly, I have concluded that the decision to impose Condition 14 on the Applicant’s hotel liquor licence is not a prescribed decision for the purposes of the Gaming and Liquor Administration Act, s 13A(1). Since it is not a prescribed decision, the Tribunal is without jurisdiction to review it, with the consequence that the application must be dismissed.

Order

33. I make the following order:

The application for review is dismissed pursuant to the Civil and Administrative Review Tribunal Act 2013 (NSW), s 55(1)(b).

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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: 16 July 2025