Kinsman v Independent Liquor & Gaming Authority

[2023] NSWCATAD 335

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Kinsman v Independent Liquor & Gaming Authority [2023] NSWCATAD 335

Hearing dates:

14 September 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The application is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013

Catchwords:

DISMISSAL – administrative review – whether administrative reviewable decision - no jurisdiction – hotel licence – change of conditions

Legislation Cited:

Administrative Decisions Review Act 1997

Gaming and Liquor Administration Act 2007

Gaming and Liquor Administration Regulation 2006

Liquor Act 2007

Liquor Regulation 2018

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Suzanne Kinsman & John Dickenson (Applicants)
Independent Liquor & Gaming Authority (Respondent)

Representation:

Applicants (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00252914

Publication restriction:

None

REASONS FOR DECISION

1. The Applicants Suzanne Kinsman and John Dickinson bring an application for administrative review of purported decisions made by the Respondent, the New South Wales Independent Liquor and Gaming Authority made some time after 4 July 2023. The application was lodged with Tribunal on 7 August 2023 at the NCAT Newcastle Registry.

The hearing

2. Dr Brown appeared as agent for the Applicants. The Respondent was represented by Mr Frommer for the Crown Solicitor.

Background

3. On 13, 21 and 28 June 2023, the Respondent determined 15 applications for variation or revocation of conditions of hotel licenses made by licensed venues (‘the venues’) in the Newcastle area. A further application for an ongoing extended trading authorisation (ETA) (collectively, ‘the challenged decisions’) are the subject of these proceedings. The Applicants, initially, sought administrative review of each of the challenged decisions.

4. The Respondent’s position is that the application for administrative review in respect of each of the challenged decisions should be dismissed for want of jurisdiction, or, want of standing, or, both. The Applicants also sought interim orders for a stay, however, that application was withdrawn and dismissed. An application that Dr Brown be joined as a party was also not pressed.

5. Despite the many decisions which are included in the challenged decisions, Dr Brown conceded that the only matters for determination before the Tribunal relate to the ETA for the venues ‘The Rogue Scholar’ and the ‘King Street Hotel’, details of which are set out more fully below.

6. Each of the subject venues, The Rogue Scholar and the King Street Hotel are hotels within the Newcastle area. They each hold a hotel licence issued under Part 3, Division 2 of the Liquor Act 2007, authorising them to sell liquor on, or, away from the licensed premises. This is not in dispute.

7. On 11 February 2022, the King Street Hotel held an ETA permitting trading after midnight.

8. Each of the two venues participated in the ‘Newcastle Stage 2 Liquor Licence Trial’ (‘the Trial’), which involved the temporary relaxation of certain liquor licence conditions in the Newcastle area. Previously, hotels within that area had been subject to more stringent trading conditions than those typically found elsewhere in New South Wales. Those licensees participating in the Trial were required to apply to the Respondent if, following the Trial, they wished to vary or revoke the licence conditions applicable to them on an ongoing basis.

9. Each of the two venues made applications of the kind to vary, or, revoke the licence conditions. The application for the King Street Hotel was administratively grouped with a number of other hotels and most of them were determined in two meetings of a committee of the Respondent, on 13 and 28 June 2023. The application made in respect of The Rogue Scholar was dealt with separately in a meeting of the Board of the Respondent on 21 June 2023.

10. Towards the conclusion of the hearing, Dr Brown conceded that although the ETA for the Rogue Scholar was a reviewable decision, the applicants did not make a submission as required by s53 of the Liquor Act (see below), nor, were they at any time within the distance of 100m as required by cl 21 of the Liquor Regulation 2018 (“the regulation”) (see below). Therefore, Dr Brown conceded that the Applicants did not meet criteria for seeking administrative review of any decision concerning The Rogue Scholar. In these circumstances, the only venue which is the subject of the substantive administrative decision review is in relation to the King Street Hotel.

11. The Respondent seeks that the application for administrative be dismissed on the basis that the Applicants have failed to identify the Tribunal’s jurisdiction to review the purported administrative reviewable decision with respect to the King Street Hotel.

Statutory Scheme

12. The following summary of the statutory scheme has been adopted from the Respondent’s submissions, I note the submissions with respect to the scheme are not in dispute.

Liquor Act

13. Section 53(1) of the Liquor Act confers on the Respondent a power, exercisable ‘at any time’, to impose conditions on, relevantly, a hotel licence. Section 53(2) provides, relevantly, that the authority may, on application by a licensee, vary or revoke a condition of a licence.

14. An application made under s 53(1) or (2) must, if required by the regulations, be advertised in accordance with the regulation: s 53(3)(d).

15. Section 53(4) deals with the making of submissions by the licensee prior to the variation or revocation of conditions imposed by the Respondent. Section 53(5)-(6) provide for the making of a submission by other persons, as follows:

(5)   Any person may, subject to and in accordance with the regulations make a submission to the authority in relation to an application under this section to vary or revoke a condition to which a licence is subject.

(6)   If any such submission is made to the authority, the authority is to take the submission into consideration before deciding whether or not to vary or revoke the licence condition.’

16. An ETA is required for a hotel to trade outside the ‘standard trading period’, including, relevantly, after 10.00 p.m. on a Sunday or midnight on any other day; see ss 12 and 14 of the Liquor Act. A licensee of a hotel licence may apply for an ETA under s 49, in accordance with the various procedural requirements set out in s 51. Like an application for the imposition, revocation or variation of licence conditions, an application for an ETA must, if required by the regulations, be advertised in accordance with the regulation: see s 51(2)(c). Section 51(5), (6) and (13) is in essentially identical terms to s 53(4)-(6) addressed above.

17. Advertising requirements are dealt with in Division 1 of Part 3 of the regulation. That Division applies both to applications by a licensee for the revocation or variation of licence conditions and to applications for ETAs (termed ‘licence related authorisation(s)’): see paragraphs (b) and (e) of the definition of the word ‘application’ in clause 20(1).

18. Relevantly, clause 21(1) of the regulation requires that an applicant (here, the licensees) notify the occupier of ‘neighbouring premises’ of the making of an application. The question as to whether the Applicants occupy ‘neighbouring premises’ in respect of any of the King Street Hotel is determined and addressed below.

19. Other persons, including various institutional persons and bodies, may be required to be notified of an application under clause 22 of the regulation. However, none of the provisions of that clause is directed to the giving of notice to members of the public, such as the Applicants.

The Gaming and Liquor Administration Act 2007 and the Administrative Decisions Review Act 1997

20. Section 13A(1) of the Gaming and Liquor Administration Act 2007 (‘GALA Act’) is as follows:

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.’

21. The words ‘gaming and liquor legislation’ are defined, in s 4, to include, relevantly, the Liquor Act. The words ‘relevant person’ are defined in s 13A(5) of the GALA Act as follows:

(5)   In this section, a relevant person in relation to a prescribed application means –

(a)   the applicant, or

(b)   a person –

(i)   who was required to be notified of the prescribed application, and

(ii)   who made a submission to the authority or the Secretary in respect of the prescribed application.’

22. Clause 7 of the Gaming and Liquor Administration Regulation 2006 (‘GALA Regulation’) provides that, for the purposes of s 13A of the GALA Act, certain applications made on or after 1 March 2016 are prescribed.

23. Section 13A of the GALA Act must be read with s 9 of the Administrative Decisions Review Act 1997 (‘the ADR Act’), which provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) if enabling legislation provides that applications may be made to the Tribunal for an administrative review of the ADR Act of any such decision (or class of decisions). Decisions of this kind are ‘administratively reviewable decisions’: see s 7 of the ADR Act.

24. An ‘interested person’ may apply to the Tribunal for administrative review of an administratively reviewable decision (see s 55(1) of the ADR Act). An ‘interested person’ is defined in s 4(1), to mean ‘a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under the ADR Act of an administratively reviewable decision’. Section 13A of the GALA Act, defines an ‘interested person’ as being a person who is a ‘relevant person’, as defined in s 13A(5).

25. Apart from s 13A of the GALA Act, there is no other enabling legislation which confers administrative review jurisdiction on the Tribunal with respect to the decisions made under Liquor Act.

The Applicants’ submissions

26. Dr Brown conceded that only the ETA for the King Street Hotel falls within s13A of the GALA Act and cl 7 of the regulations. He also conceded that the applicants do not fall within 13A(5)(a) of GALA Act. This is because in respect of the ETA, they did not make any submission to the Respondent. Therefore, the only issue to be resolved is whether the Tribunal has jurisdiction to review the change of condition application for the King Street Hotel.

27. In relation to the application for a change in conditions, the Applicants contend that there are competing interests between clauses of ss 59 and 73 of the Liquor Act. They assert that the application under s 53 Liquor Act, did not require the Respondent to ask any of the Hotels to produce a category B Community Access Statement (CIS). The critical turning point to be determined is whether the Respondent has properly processed the CIS requirements. The Applicants contend that the deliberate adoption of excluding certain residents to be able to notified as a neighbouring premises under cl 20 of the regulation, was, an attempt to prevent any opportunity for a legitimate party to make an objection against the proposed changes. In effect, the Respondent ‘shut down’ the opportunity for residents to object to the proposed changes by not properly applying the CIS requirements in cl 27 of the regulations. The Applicant’s submit that the Respondent demonstrated significant mischief in applying two different assessments.

28. The Applicant’s argue that the Respondent should have exercised a different power when considering the change in condition. I accept the Respondents reply submission, that even if this happened and there was purported jurisdictional error, that is irrelevant to this application. It may be relevant in another jurisdiction. However, the issue to be determined is whether the respondent made a decision which is an administratively reviewable decision.

The Respondents’ submissions

29. Administrative review may only be sought under s13A only in respect of a “prescribed application”, by cl 7 of the GALA regulation. Decisions made under the gaming and liquor legislation which are not “prescribed applications’ are not reviewable decisions for the purposes of the ADR Act. I agree.

30. Cl. 7 of the GALA Regulation, sets out ‘prescribed applications” to include: an application for an ongoing ETA in relation to a hotel licence that would result in trading after midnight. The King Street Hotel ETA application falls within the terms of cl. 7(b), it is a prescribed application and the respondents decision in respect of it is an “administratively reviewable decision”. But, as set out above, the Applicant’s have not satisfied s13A(5), in respect of the ETA, as they made no submission to the respondent.

31. Cl 7(c) of the GALA Regulation, prescribes ‘an application to vary or revoke a condition of a licence imposed by the Authority that would result in trading after midnight, in relation to a licence referred to in paragraph (a) (i)-(iii)…’ to also be an ‘administrative reviewable decision’. The Respondent contends that the limit of an administrative review under this provision, can only relate to a change in a condition which ‘results’ in changes to the venues trading hours post-midnight. This is because of the words used in cl 7 which include “that would result in trading after midnight”. I agree.

32. If however, there was jurisdiction, the Respondent contends that the Applicant’s are not “relevant persons” to have standing to bring the application for administrative review as required by of the operation of s 13A of the GALA Act.

My Consideration

Does the Tribunal have administrative review jurisdiction in respect of the King Street Hotel licence condition applications?

33. The effect of the application concerning the King Street Hotel, was a change of licence conditions which did not result in ‘trading after midnight’. There are eleven proposed change of conditions. Ten of those changes were approved. The Respondent contends that none of the proposed condition changes have the effect that result in changes to trading after midnight.

34. Dr Brown submits that the condition 3050, cessation of service condition, really allows trading hours to change from finalising of 3.00am alcohol consumption to 3.30am. The Respondent contends that this condition is not a change of trading hours. This is because there is a clear description of trading hours and serving of liquor. The hotel can still trade and not sell alcohol or provide the use gaming machines. The reading cl. 7(b) or (c) of GALA reg cannot be read to mean selling alcohol after midnight. I agree. This is because the parliament has limited a narrow class of change in conditions to ‘trading after midnight’ not a change in all conditions. Trading should be read as staying open, not, selling liquor.

35. I accept the respondents submissions in this regard and the intent of the words found in cl. 7(c) to mean a change in a condition “that would result in trading after midnight” is to ensure that administrative review may be sought only in that limited respect. For this reason alone, I find that the Tribunal does not have jurisdiction to determine the application. It follows the application should be dismissed for want of jurisdiction.

Are the Applicants “relevant person[s]” to have standing under s13A of the GALA Act with respect of the application?

36. The Applicants must satisfy both the standing requirements set out in s 13A(5)(b)(i) and (ii). The evidence establishes that the Applicants made a submission in respect of the King Street Hotel licence condition decision (I-8632604589). They meet the standing requirement in respect of the licence condition application, however, they were not required to be notified under s13A5(b)(i), because, they were not within 50m of the venue. This is because the licence condition for the King Street Hotel falls within cl 20 of the Liquor Regulation 2018 ‘neighbouring premises’ prescribing that the hotel must be within 50 metres to which the application relates. I do not accept that the Respondent misapplied the requirement for a category B CIS, which would have had the effect of enlivening the 100m notice period pursuant to cl 20 ‘neighbouring premises’ found at (b). This was not required to be considered by the respondent because of the operation of cl 27(3)(f) and therefore, not relevant. I find the Applicants do not have standing under s13A of the GALA Act in relation to the licence condition application for the King Street Hotel.

37. It follows the application must be dismissed as being misconceived for want of jurisdiction.

ORDERS

1. The application is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

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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

Amendments

21 December 2023 - Coversheet - Minor changes made

Decision last updated: 21 December 2023