Mount Lewis Bowling Club Co-operative Ltd v Independent Liquor and Gaming Authority

[2025] NSWCATAD 234

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Mount Lewis Bowling Club Co-operative Ltd v Independent Liquor and Gaming Authority [2025] NSWCATAD 234

Hearing dates:

17 July 2025

Date of orders:

22 September 2025

Decision date:

22 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr Linda Kirk, Senior Member

Decision:

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

Catchwords:

ADMINISTRATIVE LAW – administrative review – whether decision to impose conditions on a club licence is reviewable – no jurisdiction

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Gaming and Liquor Administration Act 2007 (NSW)

Gaming and Liquor Administration Regulation 2024

Gaming Machines Act 2001 (NSW)

Gaming Machines Regulation 2002

Liquor Act 2007 (NSW)

Cases Cited:

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

DPR v Independent Liquor and Gaming Authority [2018] NSWCATAD 251

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

Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd [2023] NSWCA 224

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

La La Land Byron Bay Pty Ltd v Independent Liquor and Gaming Authority [2014] NSWSC 1798

Texts Cited:

None

Category:

Principal judgment

Parties:

Mount Lewis Bowling Club Co-operative Ltd (Applicant)
Independent Liquor & Gaming Authority (Respondent)

Representation:

Counsel:
Michael Anderson (Applicant)
David Birch (Respondent)

Solicitors:
Elite Legal (Respondent)
Crown Solicitor (Respondent)

File Number(s):

2025/00147974

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. Mount Lewis Bowling Club Co-operative Ltd (Applicant) is registered under the Registered Clubs Act 1976 (NSW) (Registered Clubs Act). It has held a club licence under the Liquor Act 2007 (NSW) (Liquor Act) by virtue of clause 93(1) of Schedule 2 of the Registered Clubs Act since 1 July 2008 (club licence).

2. On 3 April 2024, the Independent Liquor and Gaming Authority (Respondent) imposed condition 6040 on the Applicant’s club licence, providing: “No gaming past 12am” (late-night gaming condition).

3. By an application made on 20 December 2024 pursuant to s 53(2)(a) of the Liquor Act (application), the Applicant applied to vary the late-night gaming condition to “Gaming machines are to cease operation by 02:00 AM”.

4. On 19 March 2025 the Respondent refused the application pursuant to s 53 of the Liquor Act (Decision).

5. On 16 April 2025 the Applicant applied to the Tribunal for an administrative review of the Decision (Review application).

6. The Respondent seeks dismissal of the Review application on the basis that the Tribunal has no jurisdiction to review a decision by the Respondent to refuse to vary a condition on a licence.

Legislative framework and factual background

Tribunal’s administrative review jurisdiction

7. The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) or any other legislation: s 28(1) of the NCAT Act. The Tribunal has administrative review jurisdiction in the circumstances provided for under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): s 30(1) of the NCAT Act.

8. Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision (or class of decisions) made by the administrator. “Enabling legislation” means legislation that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: ADR Act s 4(1). Section 55 of the ADR Act makes clear that the Tribunal only has jurisdiction to review “an administratively reviewable decision”. An administratively reviewable decision is defined in s 7 of the ADR Act to be “a decision of an administrator over which the Tribunal has administrative review jurisdiction”.

Registered Clubs Act

9. Clauses 93 and 94 of Schedule 2 to the Registered Clubs Act are transitional provisions introduced at the same time as the enactment of the Liquor Act, and relevantly provide:

93 Existing registered clubs taken to be licensed under Liquor Act 2007

(1)   If a certificate of registration under this Act was in force in respect of a club immediately before [1 July 2008], the club is, on that date, taken to be the holder of a club licence. Any such club is referred to in this Part as an existing registered club.

(2)   The club licence of an existing registered club—

(a)   is subject to any conditions and restrictions to which the club’s certificate of registration was subject under this Act (including provisions relating to trading hours) immediately before [1 July 2008] and

(b)   may be dealt with under, and is otherwise subject to, the provisions of the Liquor Act 2007.

94   Existing on-premises trading hours

(1)   A reference in this clause to on-premises trading hours is a reference to the times during which liquor may be sold or supplied only for consumption on the premises concerned.

(2)   Clubs with existing unrestricted on-premises trading hours An existing registered club that, immediately before [1 July 2008], was not subject to restrictions under this Act in relation to its on-premises trading hours may, subject to this clause, continue to trade on that basis until such time as action (if any) is taken under the Liquor Act 2007 to vary those on-premises trading hours.

10. A certificate of registration under the Registered Clubs Act was in force for the Applicant prior to 1 July 2008. Accordingly, the Applicant was taken to be the holder of a club licence under the Liquor Act from that date by operation of cl 93(1). Prior to 1 July 2008, the Applicant was not subject to restriction under the Registered Clubs Act in relation to the times during which liquor could be sold or supplied only for consumption on the premises. Accordingly, the Applicant was permitted to continue to trade on that basis by operation of cl 94(2). No further action has since been taken under the Liquor Act to vary those on-premises trading hours. The Applicant’s club licence states that consumption of liquor on-premises is unrestricted during trading hours.

Liquor Act

Club licences

11. Section 7(1) of the Liquor Act provides that a person must not sell liquor unless the person is authorised to do so by a licence. Section 8(1) provides that a person must not use premises to sell liquor unless the premises are licensed “or are otherwise authorised under this Act to be used for the sale or supply of liquor”.

12. Part 3 is entitled “Liquor licences”. Section 10(1) provides for a number of types of licences which may be granted and held under the Act, including a “club licence”. Section 10(2) provides that a licence “authorises the licensee to sell or supply liquor in accordance with this Act and the conditions of the licence”. Section 10(3) states that “[t]he authorisation conferred by a licence is subject to this Act and the regulations”. Section 11 provides that a licence is subject to such conditions imposed at the time the licence is granted or at any later time. Conditions may be imposed by the Respondent, the Secretary, and under the Act and regulations.

13. A “club licence” authorises the sale of liquor by retail on the licensed premises to a member, or a guest of a member, of the club for consumption on or away from the licensed premises: s 18(1). By s 18(2), the times when liquor may be sold for consumption on the licensed premises (referred to as the “trading hours for consumption on premises”) are the “standard trading period” or at such other times as may be authorised by an extended trading authorisation (ETA), with a specific exception for New Years Eve.

14. The “standard trading period” is defined in s 12 to mean (subject to the regulations), the period from 5am to midnight (for days other than Sundays) and the period from 10am to 10pm on Sundays. An ETA is a specific authorisation granted under s 49 of the Liquor Act. The practical effect of an ETA is to authorise trading (i.e. the sale or supply of liquor) beyond the standard trading hours otherwise authorised by a licence. By s 18(3), the times when liquor may be sold for consumption away from the licensed premises (referred to as the “trading hours for consumption away from premises”) are the “standard trading period” or at such other times as may be authorised by an ETA, but not on “restricted trading days”.

15. The Applicant is only permitted to sell liquor for consumption away from the premises during the “standard trading period”, by operation of cl 93(2)(b) of Schedule 2 to the Registered Clubs Act and s 18(3) of the Liquor Act.

Imposition of conditions

16. Section 53 of the Liquor Act empowers the Respondent to impose conditions on a licence or to vary or revoke conditions imposed upon a licence. It relevantly provides:

Authority may impose, vary or revoke licence conditions

(1)   Without limiting any other provision of this Act, the Authority may at any time—

(a)   on application by the Secretary or the Commissioner of Police, or

(b)   on the Authority’s own initiative,

impose conditions on a licence.

(1A)   The conditions that may be imposed by the Authority on a licence under this section include, but are not limited to, conditions—

(a)   prohibiting the sale or supply of liquor on the licensed premises before 10 am or after 11 pm (or both), and

(b)   restricting the trading hours of, and public access to, the licensed premises.

(2)   The Authority may at any time—

(a)   on application by the licensee, the Secretary or the Commissioner of Police, or

(b)   on the Authority’s own initiative,

vary or revoke a condition of a licence that has been imposed (or taken to have been imposed) by the Authority under this Act.

…

17. In Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd [2023] NSWCA 224 at [103]-[135] (upholding the conditions summarised at [15]), the Court of Appeal confirmed that the Authority may, under s 53 of the Liquor Act, validly impose conditions on a liquor licence which regulate the operation of gaming machines at a venue.

Gaming and Liquor Administration Act 2007

Administrative review of decisions under the Liquor Act

18. Section 13A(1) of the Gaming and Liquor Administration Act 2007 (GLA Act) provides for review by the Tribunal of decisions made by the Respondent:

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.

19. Section 4 of the GLA Act defines “gaming and liquor legislation” to include the Liquor Act.

20. The purpose of s 13A of the GLA Act is to limit the classes of applications for which administrative review is permitted. ^[1] In DPR v Independent Liquor and Gaming Authority [2018] NSWCATAD 251, Principal Member Pearson observed at [28] (emphasis in original):

The proposition that only limited rights of merits review were intended to be created under s13A of the GLA Act is supported by the Second Reading speech on the introduction of the Gaming and Liquor Administration Amendment Bill 2015 (Legislative Assembly Hansard, 27 October 2015), in which the Minister stated (emphasis added):

The current regulatory model does not include a merit review mechanism of decisions made by the Independent Liquor and Gaming Authority. The absence of a review mechanism particularly in relation to contentious matters that have a strong public interest, such as a new hotel licence, has been problematic for both business operators and local communities. For business operators there has been no low-cost non-technical recourse available for review of a decision to refuse an application that has involved significant investment over a period of time. For local communities there has been no low-cost, non-technical recourse available for residents and others opposed to a new liquor licence being approved in their neighbourhood. In fact, the problems that led to the 2008 creation of the Independent Liquor and Gaming Authority have been replicated in the current system; that is, the pre-2008 system was legalistic, adversarial, complex and slow.

The bill provides for licensing decisions to be reviewed in certain circumstances. For decisions made by the Independent Liquor and Gaming Authority, a review will be available from the NSW Civil and Administrative Tribunal [NCAT] in relation to contentious liquor and gaming applications, such as the grant of a new hotel or packaged liquor licence. The types of applications determined by the Independent Liquor and Gaming Authority that can be reviewed by NCAT will be prescribed by regulation prior to the commencement of the bill.

1. See Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200 at [69].

21. Other than s 13A of the GLA Act, there is no other enabling legislation which confers administrative review jurisdiction on the Tribunal with respect to decisions made in relation to licence and authorisation applications under the Liquor Act.

22. Clause 4 of the Gaming and Liquor Administration Regulation 2024 (2024 GLA Regulation) relevantly prescribes the following applications for the purpose of s 13A of the GLA Act:

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

…

(ii)   a club licence,

(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,

23. Clause 4(c) picks up an application to vary a condition imposed by the Authority on a club licence issued under the Liquor Act if that variation “would allow trading after midnight”. ^[2]

Submissions

2. The predecessor provision was cl 7(c) of the Gaming and Liquor Administration Regulation 2016 (2016 GLA Regulation). That provision was relevantly similar, save that it used the phrase “would result in trading after midnight” rather than “would allow trading after midnight”. The amendment reflects the fact that the grant of a condition which permits trade to be pursued after midnight does not require a licensee to trade in that manner. As Schmidt J noted in Rogers v Independent Liquor and Gaming Authority (No 2) [2018] NSWSC 1177 at [103], the former phrase appeared to assume that the permission conferred by a successful application to vary a condition would be availed of by the licensee, if granted.

Respondent

24. The Tribunal should find that the term “trading” is used throughout the Liquor Act specifically to refer to the sale and supply of liquor. It should construe that term in the same way in cl 4(c) of the 2024 GLA Regulation. Accordingly, the Tribunal should find that cl 4(c) relevantly applies to applications for variation of a licence condition, where that variation would allow the sale or supply of liquor after midnight. Given the relatively exceptional nature of trading (in that sense) after midnight under the Liquor Act, it is readily apparent why cl 4(c) of the 2024 GLA Regulation would seek to limit a right of administrative review to applications for variations which would have the effect of allowing the sale or supply of liquor after midnight. As the Applicant did not apply for a variation which would have the effect of allowing the sale or supply of liquor after midnight, the review application should be dismissed for lack of jurisdiction.

25. In the alternative, if the Tribunal finds that “trading” in cl 4(c) of the 2024 GLA Regulation refers more broadly to the conduct of any kind of business, there is a further reason why the present application was not one to “vary a condition imposed by the Authority on [a club licence], if the variation or revocation would allow trading after midnight”. The phrase “if the variation or revocation would allow trading after midnight” requires that the variation applied for would have had the effect of changing the times at which an applicant is allowed to trade. A variation satisfies that requirement if an applicant who was not previously allowed to trade after midnight would be allowed to trade after midnight if the variation was granted. Here, the Applicant’s existing club licence already allows trading after midnight. Under its licence, the Applicant is allowed to trade after midnight: it is allowed to sell or supply liquor for consumption at the premises after midnight, and it is also allowed to conduct other forms of business after midnight (e.g. selling food and non-alcoholic drinks). If its variation application had been granted, the Applicant would have continued to be an entity allowed to trade after midnight. Accordingly, it cannot be said that the variation for which the Applicant applied was one which “would allow trading after midnight”. There would be no relevant change to the Applicant’s status as an entity allowed to trade after midnight under its club licence. For the Applicant to succeed, the phrase “if the variation or revocation would allow trading after midnight” in cl 4(c) must be read as “if the variation or revocation would allow a specific form of trading after midnight which was not previously allowed”. However, there is no basis for reading additional words into the clause in that manner.

Applicant

26. The “trading” authorised by the Applicant’s licence is (1) the sale of liquor and (2) the operation of approved gaming machines: s 7 Gaming Machines Act 2001 (NSW) (GMA); s 18 Liquor Act.

27. The Registered Clubs Act as enacted presumed that the ordinary trading of clubs included the operation of gaming machines: s 23(5)(b). The legislative arrangements for the operation of gaming machines ie their ‘trading’ was consolidated in the GMA. Clause 97(5) of the Gaming Machines Regulation2002 explicitly presumes that trading, by operation of gaming machines, was co-incidental with trading by the sale or supply of liquor; an incidence of being licenced.

28. The GLA Act is concerned with the administration of what it defines as the “…gaming and liquor legislation …” s 4 GLA Act. Section 13A of the GLA Act is to be read in that context: s 36A(1)(b). Nothing in the gaming and liquor legislation suggests that the “trading” to which it refers does not now include all trading activities that may be undertaken only because a licence authorises the activity ie the operation of approved gaming machines.

29. Condition 6040 restricts the Applicant’s trading after midnight. The application sought a variation to that condition which would necessarily allow trading after midnight which is not permitted under Condition 6040. The decision was made in relation to the Applicant’s application; it is one made reviewable by s 13A(1) GLA Act.

Consideration and reasons

30. In Burwood RSL Club Ltd v Independent Liquor & Gaming Authority [2025] NSWCATAD 78 (Burwood), Principal Member Ransome observed that the review provisions in section 13A of the GLA Act and cl 7 of the 2016 GLA Regulation are set within the context of the overall structure and objects of the Liquor Act:

The Liquor Act has a number of purposes as set out in the objects in s 3 of that Act. It’s (sic) primary purpose is to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community. The Act is also designed to facilitate the balanced development, in the public interest, of the liquor industry and to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. To some extent there is a natural tension between these various objects or purposes. It is clear, however, from s 3(2) and the overall structure of the Act that the need to minimise harm and the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of alcohol are important considerations. The review provisions are set within this context.

31. In Burwood, the Tribunal accepted the applicant’s submission that the Authority’s decision to impose the late-night gaming condition was made in relation to a removal application as provided for in cl 7(a) of the 2016 Regulation and the decision was therefore reviewable by the Tribunal.

32. In Kinsman v Independent Liquor & Gaming Authority [2023] NSWCATAD 335 (Kinsman), the Tribunal held at [35] that its jurisdiction under cl 7(c) of the 2016 Regulation to review a decision on an application to vary or revoke a condition of a licence is limited to circumstances where a change to a condition would result in trading after midnight. As Principal Member Ransome observed in Burwood at [14], Kinsman ‘supports the conclusion that the Tribunal does not exercise an open-ended jurisdiction to review decisions of the Authority.’

33. Most recently in Gregory v Independent Liquor & Gaming Authority [2025] NSWCATAD 170, the Tribunal considered whether it had jurisdiction to conduct a review of the Authority’s decision to impose a condition on an existing hotel liquor licence prohibiting the operation of gaming machines after midnight. Senior Member Gatland found at [30] that there was no support in the text of either s 13A(1) of the GLA Act or cl 4(b) of the 2024 GLA Regulation that a decision to impose a condition on a hotel licence in relation to an extended trading authorisation applicant is a prescribed application, and accordingly the Tribunal did not have jurisdiction to the review the decision at [32]. In her reasons, Senior Member Gatland at [17] referred to cl 4(c) of the 2024 GLA Regulation and noted that, although the applicant did not contend her application was a “prescribed application” under this clause, had she done so her submission would not have been accepted:

Even had [the Applicant] 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”.

34. Senior Member Gatland did not need to consider what other activities are encompassed in the term “trading”.

35. The term “trading” is not defined in the Liquor Act, the GLA Act or cl 4 of the 2024 GLA Regulation. The Respondent contends that the term “trading” in cl 4(c) should be construed in the same way as the term is used in the Liquor Act, that is, it is limited to the sale and supply of liquor. The Applicant contends that the term “trading” extends to the sale and the supply of liquor and the operation of approved gaming machines.

36. The GLA Act and the Liquor Act were enacted as part of a single statutory scheme. The 2024 GLA Regulation prescribes specific classes of application for the purposes of providing for administrative review of decisions under the Liquor Act. It identifies various applications that can be made under the Liquor Act with respect to identified licences under the Liquor Act. It follows that terms in the 2024 GLA Regulation should be construed consistently with the same terms in the Liquor Act.

37. A key objective of the Liquor Act is to restrain the times during which liquor can be sold and supplied. The Liquor Act uses the term “trading” to refer to the activity of the sale or supply of liquor. For example, s 4(1) defines the term “trading hours” as “the times during which, subject to this Act and the conditions of the licence, the sale or supply of liquor on the premises is authorised.” In relation to club licences, the Liquor Act regulates the “trading hours for consumption on the premises” and the “trading hours for consumption away from the premises”: s 18(2) and (3). These phrases refer to the times when liquor may be sold for consumption on or away from the premises respectively, and are defined by reference to the concepts of “standard trading period”, “extended trading authorisation” and “restricted trading days”. The section is not concerned with when a club may conduct other aspects of its business. The term “trading” is limited to and used specifically to refer to the sale or supply of liquor. The Liquor Act does not contain provisions which regulate the time at which general business activity may be undertaken or must cease. The Liquor Act identifies midnight as the standard limit for “trading” of sale and supply of liquor. Under s 12(1) the “standard trading period” ends at midnight. An ETA may be granted under s 49 to authorise the sale or supply of liquor after midnight, subject to the restrictions imposed by s 49(8). As Adamson J noted in La La Land Byron Bay Pty Ltd v Independent Liquor and Gaming Authority [2014] NSWSC 1798 at [117], the Liquor Act recognises the “relatively exceptional nature of trading after midnight”.

38. The Tribunal is satisfied that the term “trading” is used in the Liquor Act to refer specifically to the sale and supply of liquor and finds that the term “trading” in cl 4(c) of the 2024 GLA Regulation should be construed consistently with how it is used in the Liquor Act. Accordingly, the Tribunal finds that cl 4(c) relevantly applies to applications for variation of a licence condition where that variation would permit the sale or supply of liquor after midnight.

39. The Applicant’s application for the variation of Condition 6040 if granted would not have had the effect of allowing the sale or supply of liquor after midnight. It follows that the application is not one which is prescribed under cl 4 of the 2024 GLA Regulation, and therefore the Decision made by the Respondent in relation to the application is not one that is reviewable by the Tribunal.

Conclusion

40. The Decision of the Respondent to refuse to vary Condition 6040 on the Applicant’s club licence is not a decision with respect to a prescribed application for the purposes of s 13A(1) of the GLA Act. The Tribunal does not have jurisdiction to review the Decision, and therefore the review application must be dismissed.

Order

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

**********

Endnotes

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

22 September 2025 - Respondent counsel amended to David Birch

Decision last updated: 22 September 2025