Independent Liquor and Gaming Authority v Auld

The Independent Liquor and Gaming Authority (the Authority) appealed to the Court of Appeal of New South Wales against a decision of an Appeal Panel, which had overturned a decision of the Authority. The dispute concerned an application by Auld to remove a hotel licence from the Mill Tavern to premises within an ALDI supermarket. The Authority had refused this application, and the Appeal Panel had subsequently allowed an appeal by Auld against that refusal.

The Court of Appeal was required to determine two primary legal issues. First, whether section 59 of the *Liquor Act 2007* (NSW) empowered the Authority to grant a removal application that would effectively convert a hotel licence into a packaged liquor licence. Second, whether section 53 of the *Liquor Act 2007* (NSW) authorised the Authority to impose conditions on a hotel licence during a removal application, such that the licence would operate as if it were a packaged liquor licence, and if so, whether a business operating under such a licence was compatible with the primary purpose test for a hotel licence under section 15(1) of the Act.

The Court of Appeal reasoned that section 59 of the *Liquor Act 2007* (NSW) did not permit the Authority to grant a removal application that would result in a hotel licence being operated as a packaged liquor licence. The Court found that the statutory scheme contemplated that a hotel licence, even upon removal, must retain its character as a hotel licence, which involves the sale of liquor for consumption on the premises. The Court concluded that the proposed operation within the ALDI supermarket, as a packaged liquor outlet, was fundamentally incompatible with the definition and purpose of a hotel licence.

The Court of Appeal allowed the appeal, set aside the decisions of the Appeal Panel and the Tribunal, and affirmed the Authority's original decision to refuse the removal application.