MJ Trading Services Pty Ltd v Independent Liquor and Gaming Authority - [2018] NSWCATAD 260

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MJ Trading Services Pty Ltd v Independent Liquor & Gaming Authority [2018] NSWCATAD 260
Hearing dates: 22 August 2018
Date of orders: 08 November 2018
Decision date: 08 November 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior member
Decision:
The decision of the respondent on 26 March 2018 to refuse to grant the applicant a packaged liquor licence is affirmed.

Catchwords: ADMINISTRATIVE REVIEW – application for packaged liquor licence – whether premises are a ‘general store’ – meaning of ‘in the neighbourhood’ – whether no other take-away liquor service reasonably available to the public.
Legislation Cited: Gaming and Liquor Administration Act 2007
Gaming and Liquor Administration Regulation 2016
Liquor Act 2007 (NSW)
Liquor Regulation 2008
Cases Cited: Armstrong v Edgecock (1984) 2 NSWLR 536
Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1
Cross v McHugh [1974] 1 NSWLR 500
Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400
Maryland Development Co Pty Ltd v Penrith City Council & Anor [2001] NSWLEC 135
Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137
Morgan v Goodall (1985) 2 NSWLR 655
State of Chamber of Commerce and Industry and Anors v Cth of Australia (1987) 163 CLR 329
Texts Cited: Macquarie Dictionary Online
Pearce & Geddes “Statutory Interpretation in Australia”, 6th ed. (2006), Chatswood,
Category: Principal judgment
Parties: MJ Trading Services Pty Ltd (Applicant)
Independent Liquor & Gaming Authority (Respondent)
Representation: Solicitors:
Garry Seo & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2018/00125399
Publication restriction: Nil

REASONS FOR DECISION

Introduction

MJ Trading Services Pty Ltd (‘MJ Trading Services’), who is the applicant in this matter, owns the Lidcombe-based business, City Hanho. City Hanho sells groceries and other household items, with a strong emphasis on goods imported from Korea. To enable City Hanho to also stock Korean alcohol, MJ Trading Services applied to the Independent Liquor and Gaming Authority (‘ILGA’) for a packaged liquor licence. The application was refused because ILGA was satisfied that City Hanho is a general store and was not satisfied that, in the neighbourhood of City Hanho, no other take-away liquor service was reasonably available to the public. For these reasons, ILGA found that the applicant could not meet the exemptions contained in section 31 of the Liquor Act 2007 (‘the Liquor Act’), which sets out restrictions on the granting of packaged liquor licences.
In its subsequent application for review to this Tribunal, MJ Trading Services submitted that City Hanho is not a general store but rather a speciality store and, on that basis, falls outside the restrictions contained in section 31 of the Liquor Act.
Relevantly, section 31 of the Liquor Act provides as follows:

(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MJ Trading Services Pty Ltd v Independent Liquor and Gaming Authority [2018] NSWCATAD 260
Case: [2018] NSWCATAD 260
Decision Date: 08 November 2018

CaseChat Overview and Summary

The parties involved in this case were MJ Trading Services Pty Ltd, the applicant, and the Independent Liquor and Gaming Authority, the respondent. The applicant sought a packaged liquor licence for a premises located in a shopping centre, which they argued should be classified as a general store. The respondent refused to grant the licence, leading to the applicant’s application for judicial review of the decision. The primary legal issues before the court were the definition of a "general store" under the Liquor Act and the interpretation of "in the neighbourhood" as it pertains to the availability of other take-away liquor services.

The court examined the definition of a "general store" under the Act, considering whether the premises met the criteria. It also delved into the meaning of "in the neighbourhood" to determine whether there were other take-away liquor services reasonably available to the public, which would affect the grant of the licence. The court held that the premises did not qualify as a general store because it was part of a larger shopping centre and did not meet the statutory definition. Additionally, the court found that other take-away liquor services were reasonably available within the vicinity, negating the applicant's argument for the necessity of the licence.

In affirming the respondent's decision, the court concluded that the premises did not satisfy the requirements for a packaged liquor licence under the Liquor Act. The court was satisfied that the respondent's assessment was reasonable and lawful, and therefore, the decision to refuse the licence was upheld. The court found that the applicant had not demonstrated that the premises qualified as a general store or that there was no other take-away liquor service reasonably available in the neighbourhood.

ORDERS:
The decision of the respondent on 26 March 2018 to refuse to grant the applicant a packaged liquor licence is affirmed.

Orders

Orders of the court

The decision of the respondent on 26 March 2018 to refuse to grant the applicant a packaged liquor licence is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	MJ Trading Services Pty Ltd v Independent Liquor & Gaming Authority [2018] NSWCATAD 260
Hearing dates:	22 August 2018
Date of orders:	08 November 2018
Decision date:	08 November 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior member
Decision:	The decision of the respondent on 26 March 2018 to refuse to grant the applicant a packaged liquor licence is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – application for packaged liquor licence – whether premises are a ‘general store’ – meaning of ‘in the neighbourhood’ – whether no other take-away liquor service reasonably available to the public.
Legislation Cited:	Gaming and Liquor Administration Act 2007 Gaming and Liquor Administration Regulation 2016 Liquor Act 2007 (NSW) Liquor Regulation 2008
Cases Cited:	Armstrong v Edgecock (1984) 2 NSWLR 536 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 Cross v McHugh [1974] 1 NSWLR 500 Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400 Maryland Development Co Pty Ltd v Penrith City Council & Anor [2001] NSWLEC 135 Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137 Morgan v Goodall (1985) 2 NSWLR 655 State of Chamber of Commerce and Industry and Anors v Cth of Australia (1987) 163 CLR 329
Texts Cited:	Macquarie Dictionary Online Pearce & Geddes “Statutory Interpretation in Australia”, 6th ed. (2006), Chatswood,
Category:	Principal judgment
Parties:	MJ Trading Services Pty Ltd (Applicant) Independent Liquor & Gaming Authority (Respondent)
Representation:	Solicitors: Garry Seo & Associates (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/00125399
Publication restriction:	Nil