Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation
[2024] QCA 121
•21 June 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121
PARTIES:
REEF HOUSE PROPERTY PTY LTD
(first appellant)
REEF HOUSE RESORT PTY LTD
(second appellant)
v
COMMISSIONER OF LIQUOR AND GAMING REGULATION
(first respondent)
MFB PROPERTIES (NQ) PTY LTD
(second respondent)
SMAZ FAMILY TRUST
(third respondent/not a party to the appeal)
RATCLIFFE ARCHITECTURE
(fourth respondent/not a party to the appeal)
KYLIE NATASHA RYAN
(fifth respondent/not a party to the appeal)
STORYWATER PTY LTD T/AS BEACH ALMOND
(sixth respondent/not a party to the appeal)
GONDWANA RESORTS PTY LTD
(seventh respondent/not a party to the appeal)
AAPC PROPERTIES LIMITED T/AS REEF HOUSE M GALLERY
(eighth respondent/not a party to the appeal)FILE NO/S:
Appeal No 13596 of 2023
QCAT No 81 of 2021DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal – [2023] QCAT 389 (Member Carrigan)
DELIVERED ON:
21 June 2024
DELIVERED AT:
Brisbane
HEARING DATE:
27 May 2024
JUDGES:
Mullins P and Flanagan JA and Bradley J
ORDER:
Appeal dismissed with costs.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – FUNCTIONS OF TRIBUNALS – where the second respondent applied to the first respondent for a commercial hotel licence, which the first respondent provisionally approved – where the appellants, along with several other applicants, applied to the Queensland Civil and Administrative Tribunal (“Tribunal”) for a review of the first respondent’s decision under the Liquor Act 1992 (Qld) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the Tribunal dismissed the application, and confirmed the first respondent’s decision – where the appellants contend that the Tribunal failed to undertake a review on the merits as required by the applicable legislation, and thereby failed to properly understand and/or exercise its jurisdiction – where the first and second respondents contend that the Tribunal’s decision, and the language used therein, was permissibly shaped by the manner in which the appellants argued their case before the Tribunal – whether, having regard to both the proceedings before the Tribunal and the decision itself, the Tribunal failed to undertake a merits review as required by the applicable legislative provisions
Liquor Act 1992 (Qld), s 3, s 21, s 33, s 34, s 35(3), s 116, s 121
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6(4), s 7, s 9, s 17, s 19, s 20, s 21, s 24Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47, applied
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, applied
Frugniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16, considered
Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77; [2008] FCA 1609, applied
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; [1981] FCA 66, distinguished
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, applied
Queensland Building Services Authority v Meredith [2010] QCATA 50, cited
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31, appliedCOUNSEL:
B Roberts KC, with B A Hall, for the appellants
A Hellewell for the first respondent
S L Walpole for the second respondentSOLICITORS:
WGC Lawyers for the appellants
G R Cooper, Crown Solicitor for the first respondent
Hickey Lawyers for the second respondent
MULLINS P: I agree with Flanagan JA.
FLANAGAN JA: The appellants appeal as of right, pursuant to s 35(3) of the Liquor Act 1992 (Qld), from a decision of the Queensland Civil and Administrative Tribunal (“Tribunal”) dated 15 September 2023 (“Decision”).[1] Section 35(3) provides that a party to a proceeding for a review of a decision of the Commissioner for Liquor and Gaming Regulation (“Commissioner”) may appeal to this Court against a decision of the Tribunal, but only if the appeal is on a question of law.
[1]Reef House Property Pty Ltd v Commissioner for Liquor and Gaming Regulation [2023] QCAT 389 (“Decision”).
The Decision confirmed the Commissioner’s provisional approval, given on 23 December 2020, of an application by the second respondent, MFB Properties (NQ) Pty Ltd (“MFB”), for a commercial hotel licence in relation to its premises at Palm Cove.
By an amended notice of appeal, the appellants raise the following ground of appeal:
“(a)The Tribunal misconstrued ss 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 and s 33 of the Liquor Act 1992 by purporting to confirm the determination under review without conducting a review on the merits of the Commissioner’s decision by way of rehearing so as to determine the correct or preferable decision based upon the material before the decision maker.
(b)This ground is based on either or both of the following questions of law:
(i)did the Tribunal properly understand its jurisdiction and/or fail to exercise a jurisdiction that it was required to exercise?
(ii)did the Tribunal misconstrue and/or misapply ss 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 and s 33 of the Liquor Act1992 when it decided to confirm the determination under review without conducting a review on the merits of the Commissioner’s decision by way of rehearing?”
It may be accepted that this ground of appeal raises a question of law.[2] The issue on appeal is whether the Tribunal, in reviewing the decision of the Commissioner, failed to exercise the jurisdiction that it was required to exercise?[3]
[2]This was expressly conceded by the Respondents: see First Respondent’s Outline of Argument, para [7]; Second Respondent’s Outline of Argument, fn 3.
[3]Appellants’ Outline of Argument, para [7].
The determination of this issue requires an examination of both the proceedings before the Tribunal and, more particularly, the Decision.
For the reasons which follow, the appellants have failed to establish any such error and the appeal should be dismissed.
Factual background
The relevant factual background, which is not controversial, may be briefly stated.[4]
[4]Appellants’ Outline of Argument, paras [9]–[18]; First Respondent’s Outline of Argument, para [3] and Second Respondent’s Outline of Argument, para [11].
MFB is the owner of a property at Palm Cove, from which it operates a business known as the “Palm Cove Sarayi Hotel”, comprising a licenced restaurant and accommodation. Its facilities consist of eight one-bedroom apartments, 18 standard hotel rooms, and a rooftop bar.
The appellants operate a resort immediately proximate to the Sarayi Hotel, operating as the “Reef House” resort.
MFB applied to the Cairns Regional Council for a material change of use, including in relation to the rooftop bar. This was granted on 14 October 2019, subject to certain conditions, including that the rooftop bar’s hours of operation were limited from 10.00 am to 10.00 pm and that no live entertainment was permitted on the rooftop after 7.00 pm (in accordance with the noise assessment report that had been obtained). The Council’s approval also required a noise management plan to be prepared, which would demonstrate how the operation of the approved use would comply with the recommendations of the noise assessment report.
On 29 October 2019, MFB applied for a commercial hotel licence for the Sarayi Hotel with respect to all internal areas, the restaurant, and the bar (including the rooftop bar).
While the application was submitted to the Commissioner with various documents, MFB requested that the need for a full Community Impact Statement (“CIS”) be waived and that a standard CIS suffice in its place. A standard CIS was subsequently submitted on 31 October 2019. On 24 January 2020, a delegate of the Commissioner made a determination to waive the requirement for a full CIS.
The application was advertised and by the beginning of March 2020 a substantial number of objections had been received by the Office of Liquor and Gaming Regulation (“OLGR”). One hundred and twenty-five public objections were received. No objectors’ conference was initially held due to COVID-19 restrictions. Further written submissions in support of existing objections were, however, invited and a considerable number of additional objections were received.
The OLGR subsequently identified that relevant criteria had not been addressed by MFB as a full CIS had not been prepared. On 28 August 2020, the OLGR advised MFB that it would consider accepting the previously lodged CIS if a proposal was made to carry out community consultation with a view to achieving the intent underpinning the Commissioner’s Guideline 38 (“Guideline”). The Guideline provides applicants with the information needed to complete a CIS in order to address issues relevant to “community impact”.[5]
[5]RB, Vol 3, p 997, para [1].
Ultimately, an objectors’ conference was held on 23 September 2020.
On 21 October 2020, MFB submitted what was described as a “full” CIS. The OLGR prepared two reports to the Commissioner, dated 26 October 2020 and 14 December 2020. The report of 14 December 2020 recommended that the application be provisionally approved (subject to a number of conditions and, for the rooftop bar, limited to trading hours from 10.00 am to 10.00 pm). The issue of the licence was also made subject to the lodgement of an acoustic report, the content and recommendations of which would satisfy the Commissioner that any noise from the premises would not create noise nuisance. There were further conditions relating to noise, based on a submitted acoustic report.
On 23 December 2020, the Commissioner provisionally approved the application based on the OLGR’s report and recommendations.
On 3 February 2021, the appellants filed applications to review the decision of the Commissioner.
The Tribunal conducted a hearing on 10 June 2022 and published the Decision on 15 September 2023, confirming the Commissioner’s decision.
Relevant statutory provisions
Pursuant to s 9(1) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), the Tribunal has jurisdiction to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act. The relevant enabling Act is the Liquor Act. Jurisdiction conferred on the Tribunal includes, pursuant to s 9(2)(b), “review jurisdiction”.
The relationship between the QCAT Act and the Liquor Act, as the enabling Act, in conferring review jurisdiction on the Tribunal is governed by s 6(4) and s 7 of the QCAT Act. Section 6(4) provides:
“An enabling Act that is an Act conferring review jurisdiction on the tribunal may state the tribunal’s functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.”
Section 7 provides:
“Application of Act if modifying provision in enabling Act
(1)This section applies if a provision of an enabling Act (the modifying provision) provides for –
(a)the tribunal’s functions in jurisdiction conferred by the enabling Act; or
(b)a matter mentioned in section 6(7).
(2)The modifying provision prevails over the provisions of this Act, to the extent of any inconsistency between them.
(3)This Act must be read, with any necessary changes, as if the modifying provision were a part of this Act.
(4)Without limiting subsection (3) –
(a)in a provision of this Act relating to a person starting a proceeding, a reference to the person doing something under this Act is taken to be a reference to the person doing the thing under this Act or a modifying provision; and
(b)in a provision of this Act relating to the tribunal conducting a proceeding, a reference to the tribunal doing something under this Act is taken to be a reference to the tribunal doing the thing under this Act or a modifying provision.
(5)This section does not prevent an enabling Act from expressly stating how this Act applies in relation to the modifying provision, including, for example, by stating that stated provisions of this Act do not apply, or apply subject to stated variations.
(6)In this section—
enabling Act means an enabling Act that is an Act.”
These provisions give precedence to the Liquor Act, as the enabling Act, over the QCAT Act as to the nature of the conferred review jurisdiction to be exercised by the Tribunal, but only to the extent of any inconsistency. The appellants accept that there is no inconsistency between the relevant provisions of the QCAT Act and the Liquor Act as to the nature of the review which the Tribunal was required to undertake.[6]
[6]Transcript of Proceedings, 27 May 2024, 1-5, lines 19-36.
The Tribunal’s review jurisdiction under the QCAT Act is dealt with in Chapter 2, Part 1, Division 3.
By s 17(1) of the QCAT Act, the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act. In the present case, the Tribunal was undertaking a review of the Commissioner’s decision of 23 December 2020 (i.e. to provisionally approve the licence), which was a “reviewable decision” for the purposes of Division 3.
Sections 19 and 20 identify the general nature of the Tribunal’s review jurisdiction. Section 19 provides:
“Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal –
(a)must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b)may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c)has all the functions of the decision-maker for the reviewable decision being reviewed.”
Section 20 provides:
“Review involves fresh hearing
(1)The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
(2)The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.”
Section 21 deals with the assistance that a decision-maker must provide to the Tribunal, including providing a written statement of reasons for the decision and any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision.
Section 24 of the QCAT Act empowers the Tribunal to confirm, amend or set aside the decision and to substitute its own decision or to return the matter for reconsideration with directions the Tribunal considers appropriate.
With respect to the Liquor Act, s 21 deals with the jurisdiction and powers of the Tribunal. Section 21(1) provides that the Tribunal may review decisions of the Commissioner, including in relation to the grant of a licence.
Section 21(2) provides:
“In exercise of its jurisdiction, the tribunal –
(a)has –
(i)the powers and discretions of the commissioner in respect of the matter under review; and
(ii)the powers otherwise conferred on it by this Act; and
(b)has the duties imposed by this Act on the commissioner in respect of the matter under review; and
(c)is subject to the limitations imposed by this Act on the commissioner in respect of the matter under review.”
Sections 33 and 34 of the Liquor Act deal with the nature of the review to be undertaken by the Tribunal. Section 33 provides:
“Tribunal to decide review on evidence before the commissioner
(1)In a proceeding for a review of a decision of the commissioner by the tribunal, the tribunal must –
(a)hear and decide the review of the decision by way of a reconsideration of the evidence before the commissioner when the decision was made; and
(b)decide the review of the decision in accordance with the same law that applied to the making of the original decision.
…
(3)In this section –
original decision means the decision of the commissioner to which the proceeding for the review relates.”
Section 34 provides:
“Tribunal may give leave for review to be decided on new evidence in particular circumstances
(1)Despite section 33, the tribunal may grant a party to a proceeding for a review of a decision of the commissioner (the decision) leave to present new evidence if the tribunal is satisfied –
(a)the party did not know, and could not reasonably be expected to have known, of the existence of the new evidence before the decision; and
(b)in the circumstances, it would be unfair not to allow the party to present the new evidence.
(2)If the tribunal gives leave under subsection (1), the tribunal must adjourn the proceedings for a stated reasonable time to allow the commissioner to reconsider the decision together with the new evidence and to allow for further submissions by affected persons.
(3)In this section –
new evidence means evidence that was not before the commissioner when the decision was made.”
As is apparent from s 20(1) of the QCAT Act, the purpose of the Tribunal’s review of the Commissioner’s decision is to produce the correct and preferable decision. This is to be achieved by way of a fresh hearing on the merits. The nature of a fresh hearing on the merits is informed by sections 21, 33 and 34 of the Liquor Act. The Tribunal must reconsider the evidence which was before the Commissioner when the decision was made, subject to the Tribunal granting leave to a party to present new evidence. Further, in undertaking the review the Tribunal has the powers, discretions and duties of the Commissioner in respect of the matter under review.[7] In this respect, s 121 of the Liquor Act identifies the matters to which the Commissioner must have regard in granting a licence:
[7]Liquor Act 1992 (Qld) s 21(2)(a)–(b).
“Matters the commissioner must have regard to
In deciding whether to grant the application, the commissioner must have regard to –
(a)if a community impact statement is required to be given for the application under section 116 –
(i)the matters mentioned in section 116(8); and
(ii)the public interest in so far as it relates to the main purpose of this Act mentioned in section 3(a)or the impact on the amenity of the community; and
(b)an objection to the grant of the application made under section 117, 119 or 119A; and
(c)comments made in relation to the application under section 117; and
(d)the impact on the amenity of the community concerned; and
(e)for an application for an extended trading hours approval mentioned in section 86(1) –
(i)the previous conduct of the applicant in discharging any duties under this Act previously placed on the applicant, especially for the premises for which the extension is sought; and
(ii)the applicant’s ability to control the noise and behaviour of the number of persons that could reasonably be expected to be on and in the vicinity of the premises if the extension were granted; and
(iii)the suitability of the premises and its facilities for the purpose for which the extension is sought; and
(f)any relevant conditions imposed on a development approval that relates to premises the subject of the application.”
Section 121 makes reference to s 116, which deals with when a CIS is to be provided to the Commissioner and what it must address. The reference to s 3(a) in s 121(a)(ii) is to the main purposes of the Liquor Act, which include “minimising adverse effects on the amenity of the community”.[8]
[8]Liquor Act 1992 (Qld) s 3(a)(iii).
The appellants’ complaint is that the Tribunal purported to confirm the reviewable decision “without conducting a review on the merits of the Commissioner’s decision by way of a reconsideration of the evidence before the Commissioner when the decision was made.”[9] The appellants therefore submit that the Tribunal failed to consider whether the decision of the Commissioner was the correct or preferable decision.
[9]Appellants’ Outline of Argument, para [22].
The QCAT Act does not define the terms “review by way of a fresh hearing on the merits” or “the correct and preferable decision”. Nor does the Liquor Act define the term “review of the decision by way of a reconsideration of the evidence before the commissioner when the decision was made”. The meaning of these terms is to be construed having regard to the relevant statutory context. These concepts or similar concepts have also been the subject of judicial consideration in various statutory contexts which is discussed below.
The proceedings before the Tribunal
The proceedings before the Tribunal were commenced by the applicants filing applications to review. The applications alleged that the Commissioner’s decision to provisionally approve MFB’s application for a commercial hotel licence was erroneous because of five identified grounds. In its Decision, the Tribunal referred to these five grounds as “setting out why the Applicant considered the [Commissioner’s] decision is wrong or not properly made”.[10]
[10]Decision, [64].
Subsequent to the filing of the applications the Tribunal made various directions. These directions dealt with the filing of submissions by the parties, together with the filing of the material which the Commissioner was required to file pursuant to s 21 of the QCAT Act. In accordance with these directions, the Commissioner filed a 24‑page statement of reasons dated 15 April 2021. Attached to the statement of reasons were 808 pages of documents which were before the Commissioner when deciding to grant the provisional approval.[11]
[11]RB, Vol 2, p 176 to RB, Vol 3, p 1061. An index to the bundle of documents is found at RB, Vol 2, pp 200 to 202.
The submissions filed by the appellants before the Tribunal pursuant to these directions referred to the relevant provisions of the QCAT Act and Liquor Act as requiring “a hearing de novo based solely on the evidence contained in the section 21 bundle of relevant documents”.[12] The appellants’ submissions before the Tribunal relied on a primary submission that the relevant documents before the Commissioner did “not contain sufficient information to support the original decision and that [therefore] the correct and preferable decision is unavoidably to set aside the original decision and refuse the application.”[13]
[12]RB, Vol 3, p 1062, para [2].
[13]RB, Vol 3, p 1064, para [6].
The appellants alleged three “critical failures”. First, the CIS provided by MFB was deficient in that it did not comply with the guidelines issued by the Commissioner. Secondly, the documents before the Commissioner did not include evidence that MFB had complied with the condition of its material change of use approval (which had required the submission and approval of a noise management plan). Thirdly, in the absence of any relevant noise attenuation building works being proposed by MFB, a full acoustic report ought to have been required before the Commissioner provisionally approved the licence. The appellants therefore submitted before the Tribunal that it could not meet its statutory obligation pursuant to s 19(c) of the QCAT Act “to carry out ‘all of the functions’ of the decision-maker for the reviewable decision being reviewed based on the available evidence” in the relevant documents.[14]
[14]RB, Vol 3, p 1064, para [8].
Apart from identifying these three “critical failures”, the appellants specifically addressed before the Tribunal matters relevant to it undertaking a merits review. The appellants referred to the “universal theme” of the numerous objections that any approval would adversely impact what was described as a “unique and pristine tourism area”.[15] The appellants further submitted that where the granting of a commercial hotel licence involved a rooftop bar, it was necessary to balance the amenity of the locality with the commercial interest of an applicant licensee.[16] The appellants’ submissions before the Tribunal concluded as follows:
“The applicant’s submissions primarily argue setting aside the decision on procedural grounds and that outcome should be fairly self-evident and justified. Any fair review of the relatively voluminous and passionate objections should support the merit refusal of the application itself given there is little doubt [that] this development is not consistent with the optimum development of the uniquely tranquil Palm Cove locality.”[17]
[15]RB, Vol 3, p 1079, para [43].
[16]RB, Vol 3, p 1079, para [42].
[17]RB, Vol 3, p 1080, para [46].
The Commissioner and MFB also made express reference to the Tribunal’s review jurisdiction in their submissions. The Commissioner submitted:
“[T]he Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.”[18]
[18]RB, Vol 3, p 1082, para [7].
In its submissions, MFB expressly referred the Tribunal to s 20(2) of the QCAT Act and s 33(1) of the Liquor Act, submitting that the Tribunal had to hear and decide the review by way of a fresh hearing on the merits and by a reconsideration of the evidence before the Commissioner when the decision was made.[19]
[19]RB, Vol 3, p 1095, paras [5] and [9].
On the morning of the hearing before the Tribunal on 10 June 2022, counsel for the appellants provided a written overview of their oral submissions. This overview referred to the Tribunal being required to both conduct a fresh hearing on the merits and to reach the correct and preferable decision. The overview also referred to the same three issues identified in the appellants’ submissions which had been filed pursuant to the Tribunal’s directions.
There are a number of matters that should be noted from an examination of the transcript of the proceedings before the Tribunal. The Tribunal noted that it was conducting the hearing of an application which sought review of the Commissioner’s decision of 23 December 2020.[20] The Tribunal sought to identify the actual decision which was being reviewed.[21] This resulted in the following exchange between counsel for the appellants and the Tribunal:
“MEMBER: All right. So what – so that I’m clear about that, what we’re doing here today and actually the decision, we’re reviewing pages – the contents of pages 1 to 5 inclusive. ...
MEMBER: All right. Thank you. Mr Hall, do you agree with that?
MR HALL: Look, not entirely …
MEMBER: Okay.
MR HALL: … Member,
MEMBER: Why not?
MR HALL: So – well, it’s not a judicial review, so – perhaps I’m splitting hairs, but it’s not a matter of, you know, reviewing the judicial – it’s not a matter of judicially. It’s a fresh hearing, effective …
MEMBER: … I mean, all I’m doing at the moment is making sure that the decision that is the subject of your client’s application that it is properly identified …”[22]
[20]RB, Vol 3, p 1126, T1-8 lines 20–21.
[21]RB, Vol 3, p 1137, T1-19 lines 22–24.
[22]RB, Vol 3, p 1138, T1-20 lines 15–42.
A further exchange between the Tribunal and counsel for the appellants as to the nature of the hearing was as follows:
“MEMBER: Just a couple of questions before you go, Mr Hall. You said, I think, at the beginning, that this hearing today is a hearing de novo, meaning, you know, that we’re – you know, can really look at all the evidence that’s now before the tribunal today. And I know under section 20 subsection (2) of the Queensland Civil and Administrative Tribunal Act … this is a – apparently a reviewable decision, to be reviewed by way of a fresh hearing on the merits. Do you say that I can look at anything that is before the tribunal today, or am I constrained?
MR HALL: Well, can I put it like this: yes. You can look at the – you – anything that’s before the tribunal today, that [indistinct]
MEMBER: All right.
MR HALL: There’ll be a ruling that needs to be made about the Ratcliffe’s material. And so, that would be fresh [indistinct] the meaning of the [indistinct] and there’d have to be a basis for the – for your Honour …
MEMBER: Yes
MR HALL: … to [indistinct] so when I say that – and perhaps I could describe it like this. If it was a judicial review application, we’d be looking at the decision of the Commissioner, and assessing whether or not it was so wrong that no reasonable decision-maker in the position of the Commissioner could reach that conclusion. It’s a little different here today. It’s enough for the Member to review the effect of the bundle of relevant documents, and review it afresh, and make a decision on the back of that, whether or not the licence ought to end or be set aside …
MEMBER: Well, what – just on that – well, thank you for those submissions about the mode of hearing. Just – you’re talking about – assuming, you know, that the applicant’s position is correct, assuming that, you know – I certainly haven’t – have no preconceived, you know, views on the matter at the moment. I’m just exploring something. Under section 24 subsection (1) of the Queensland Civil and Administrative Tribunal Act, I can do three things.
You seem to ask for the second matter: that is, in 1(b), to set aside the decision, and substitute the tribunal’s own decision. And your submission is that I should find that, certainly so far as the community impact statement was concerned, it wasn’t a full one, as required under the guidelines. And its deficiencies are such that I should set aside that decision, and that’s fine. But the power is also to substitute the tribunal’s own decision; what do you say about that?
MR HALL: Well, that’s what I’m contending for. So if I could take your Honour to paragraph 60 [indistinct] of Scali.
MEMBER: So that would be just to refute – that would be the application in total, wouldn’t it? That would – is that you’re …
MR HALL: Yes
MEMBER: That’s what you’re asking for?
MR HALL: What we’re saying would be – the Member would set aside the Commissioner’s decision, and substitute the Member’s own [indistinct] decision, to refuse the licence, rather than grant it.”[23]
[23]RB, Vol 3, p 1171, T1-53 line 44 to p 1172, T1-54 line 1 to 49.
The Tribunal also discussed with the parties the relief that could be granted including the possibility of the Tribunal directing that a full CIS be prepared.[24]
[24]RB, Vol 3, p 1173, T1-55 lines 14 to 16.
Before the Tribunal, counsel for the Commissioner also referred to the nature of the review:
“Section 33 is just really in relation to good general procedure when the Tribunal is deciding a review. So yes, they decide the review as a – by way of a reconsideration of the evidence before the Commissioner.”[25]
[25]RB, Vol 3, p 1176, T1-58 lines 1 to 3.
Counsel for the appellants before the Tribunal also emphasised the nature of the review:
“But if we look at section 20, I just want to be clear about that fact that the Member’s job is to produce the correct and preferable decision. And to an extent, Mr Slack’s submissions were directed towards – effectively, I took them to be a justification of the reasoning of the Commissioner. And that’s relevant, but the job for the Member is to produce the correct and preferable decision on the material that is now before the Member but was previously before the Commissioner. Now, in doing that, the decision-maker, which here is the Commissioner under section 21(1) is obliged to use their best endeavours to help the Tribunal to understand that. So it’s not a case of advocating to protect its prior decision, it’s a matter of assisting and using its best endeavours for the Member to get to the correct and preferable decision on the material as if the Member were the original decision-maker in the shoes of that decision-maker and with that material before the Member.”[26]
[26]RB, Vol 3, pp 1205–1206, T1-87, line 43 to T1-88, line 8.
The Tribunal’s reasons for the Decision
The reasons for the Decision commence by identifying the nature of the relief sought in the appellants’ applications for review; namely, that the decision of the Commissioner be set aside and that the Tribunal substitute a decision refusing the licence application.[27]
[27]Decision, [1].
The Tribunal identified the primary ground of review as being that the documents before the Commissioner on which the decision was based did not contain sufficient information to support the decision, and that therefore the correct and preferable decision was unavoidably to set aside the original decision and refuse the application.[28]
[28]Decision, [3](a).
After reciting the relevant factual background, the Tribunal dealt with an application by one of the other applicants before the Tribunal, Ratcliffe Architecture Pty Ltd, to adduce new evidence pursuant to s 34 of the Liquor Act. This application was refused.[29]
[29]Decision, [53].
At paras [54] to [63] of the Decision, the Tribunal set out the relevant provisions in relation to the Tribunal exercising its review jurisdiction. The Tribunal’s analysis included references to most of the relevant statutory provisions outlined at [21] to [32] above. The Tribunal observed:
“[59] In proceedings for a review of a decision of the Commissioner the Tribunal must:
(a)hear and decide the review of the decision by way of a reconsideration of the evidence before the Commissioner when the decision was made; and
(b)decide the review of the decision in accordance with the same law that applied to the making of the original decision.
[60]The Tribunal in the proceedings is also authorised to grant a party to the proceedings for a review of a decision of the Commissioner leave to present new evidence if the Tribunal is satisfied that certain is specific conditions have been met. This has been referred to earlier in relation to the application by Ratcliffe Architecture to file new evidence.
[61]In exercising the Tribunal’s jurisdiction it must decide the review in accordance with the QCAT Act and the Liquor Act and may perform the functions conferred by both Acts and has all the functions of the Commissioner for the reviewable decision being reviewed.
[62]The Tribunal must also hear and decide the review by way of a fresh hearing on the merits with the purpose of the review [being] to produce the correct and preferable decision.
[63]In conducting this review of the Commissioner’s decision, the Tribunal may;
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the Commissioner, with directions the Tribunal considers appropriate.”
(citations omitted)
The Tribunal identified the submissions of the appellants, including their primary submission that the bundle of documents filed by the Commissioner in accordance with s 21 of the QCAT Act did not contain sufficient information to support the original decision and that therefore the correct and preferable decision was to set aside that decision and refuse MFB’s application.[30]
[30]Decision, [66](a).
The Tribunal then proceeded to consider the issues identified by the parties. The first issue was whether the CIS was deficient and non-compliant with Guideline 38.[31] By reference to the appellants’ reliance on Scally v Commissioner for Liquor and Gaming,[32] the Tribunal referred to the critical question as being whether the Tribunal had sufficient information to make a proper decision under s 121 of the Liquor Act despite any gaps in the CIS. The Tribunal then considered whether the CIS provided the information required by both the Liquor Act and Guideline 38.[33] Contrary to the submissions of the appellants, the Tribunal accepted that there was sufficient relevant information included in the full CIS on which an assessment of risk could be undertaken. The Tribunal therefore rejected the appellants’ submission that there was no information provided or included for the assessment of risk.[34] The Tribunal further found that the evidence supported a finding that there was wide community consultation including with the Queensland Police Service.[35] The Tribunal was not satisfied that relevant information was not made available in the full CIS and further accepted that the CIS did provide requisite Guideline 38 information in support of the application for the commercial hotel licence.[36]
[31]Decision, [68]–[114].
[32][2019] QCAT 387.
[33]Decision, [93]–[114].
[34]Decision, [101].
[35]Decision, [106].
[36]Decision, [107].
The Tribunal’s conclusion in relation to the issue of whether the CIS was deficient was as follows:
“The evidence in these proceedings demonstrates that a Standard CIS was prepared for the commercial hotel licence [which] was inadequate and did not comply with the Liquor Act nor Guideline 38. A “Full” CIS was subsequently prepared and provided to the Commissioner. The Applicant has made a number of criticisms of that “Full” CIS stating that the documents provided [were] highly deficient in complying with Guideline 38 but those criticisms have not been supported by the evidence before the Tribunal. The Tribunal is not satisfied [of] the Applicants’ submissions that the Full CIS is highly deficient and has rejected those submissions. The Tribunal finds that the Full CIS provided sufficient detail and information for the purposes of s 116(8) and s 121 of the Liquor Act as well as the Commissioner’s Guideline 38.”[37]
[37]Decision, [114].
The second issue considered by the Tribunal was whether the development approval was subject to a noise management plan.[38] The Tribunal concluded as follows:
“The Tribunal does not accept that the absence of the noise management plan should in any way hinder or prevent the Commissioner from making a decision whether to grant the commercial hotel licence to MFB. Rather, the Commissioner decision takes into account the need for a noise management plan to be provided and caters for that in the conditions of the grant to MFB.”[39]
[38]Decision, [115]–[126].
[39]Decision, [126].
As to the third issue of whether a full acoustic report was required,[40] the Tribunal concluded as follows:
“[139] The evidence before the Tribunal is that the Commissioner assessed the application for the commercial hotel licence where a development approval had been given for the use of the premises. The Commissioner was authorised to grant the application provisionally subject to the conditions that the Applicant provides evidence of completion of the building work or approved or certification as required by law.
[140]MFB acknowledges that it intends to provide amplified entertainment and that it will have to provide an acoustic report in accordance with Guideline 51 by a qualified acoustic engineer. It says the acoustic engineer will be engaged once completion of the rooftop fit out has been completed. That part of the development has yet to commence.
[141]The Tribunal is satisfied, and so finds, that the Commissioner was entitled to impose conditions on the licence approval conditional upon the satisfactory completion of those conditions subsequent to the approval. The Commissioner (sic) accepts the submissions of the Commissioner and of MFB. The submissions of the Applicant that the approval of the Commissioner for the grant of the commercial hotel licensed must wait until after an acoustic report has been provided has not been made out on the basis of the statutory framework relating to the grant of such a licence and the evidence that is before the Tribunal does not support those submissions. The Tribunal rejects the Applicants submissions.”
[40]Decision, [127]–[141].
In dealing with further matters,[41] the Tribunal made various references to “the evidence before the Tribunal” in arriving at its conclusions. Those conclusions included the following:
(a)“The Tribunal is satisfied that the respective conditions imposed not only on the MCU but on the commercial hotel liquor licence will ameliorate significantly any potential for an adverse impact on the amenity of the area. The Tribunal rejects the Applicants submissions on amenity.”;[42]
(b)“The Tribunal is not satisfied that there is evidence that there will be any ongoing behaviour by the commercial hotel operators under their current conditions as had occurred during the currency of the accommodation liquor licence.”;[43]
(c)“The evidence before the Tribunal is that advertising took place over an acceptable period of time for the community to lodge objections to the commercial hotel licence.”[44]
[41]Decision, [142]–[159].
[42]Decision, [145].
[43]Decision, [150].
[44]Decision, [159].
The Tribunal then considered the issue of whether there was sufficient information to support the Commissioner’s decision. This issue reflected the primary conclusion of the appellants’ submissions; namely, that the s 21 documents did not contain sufficient information to support the Commissioner’s decision and that the correct and preferable decision was unavoidably to set aside that decision and refuse the application. In this respect the Tribunal observed:
“To the extent that the Applicants primary conclusion is based upon the submissions relating to the three critical failures and on the submissions for ‘further matters for completeness’ both of those matters have been considered by the Tribunal above and the Applicants Submissions have not been successful. It is not clear from the Applicants’ submissions what other basis there is for the submission that there was insufficient information in the s 21 documents other than the Applicants’ reliance upon Scally’s case.”[45]
[45]Decision, [161].
The Tribunal continued:
“The Tribunal finds that the s 21 documents provided the requisite information required by s 116 and s 121 of the Liquor Act, including information required by the Guidelines, for the Commissioner to make a decision in respect of this commercial hotel licence. The Tribunal finds that there was sufficient information provided to the Commissioner and that the Applicant has not satisfied the Tribunal that relevant necessary information was not provided for the making of the decision.”[46]
[46]Decision, [163].
The Tribunal concluded:
“The Tribunal is satisfied on the evidence provided in these proceedings that the Commissioner had sufficient information compliant with the Act and the Guidelines on which to make the decision on 23 December 2020. The Tribunal has rejected the Applicants other arguments [that] there are three critical failures in the application process as well as several other matters it is alleged the Commissioner should have refused the grant of the commercial liquor licence.”[47]
[47]Decision, [164].
Consideration
While merits review has been a prominent aspect of Australian administrative law since at least the establishment of the Administrative Appeals Tribunal in 1976, judicial consideration of it has not been as extensive as that of the principles of judicial review. It is accepted that its focus has always been on the assessment of the facts, rather than the legality, of a decision.[48] Unlike judicial review, which is concerned with whether there has been legal error in the reasons of a decision-maker, administrative tribunals conducting a merits review are “distinguished principally by [their] jurisdiction to re-exercise the functions of original administrative decision-makers.”[49]
[48]Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140] (“Shi”).
[49] Frugniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14].
The relevant test to be applied in a merits review has remained largely unchanged since it was stated in Drake v Minister for Immigration and Ethnic Affairs:
“The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”[50]
[50](1979) 46 FLR 409, endorsing the earlier decision of Re Becker and Minister for Immigration & Ethnic Affairs (1977) ALD 158.
All parties to this appeal accept that the Tribunal, in conducting a review on the merits of the Commissioner’s decision, was required to reach the “correct and preferable decision”,[51] which is identified in s 20(1) of the QCAT Act as the “purpose of the review of a reviewable decision.”
[51]It should be noted that although the conjunctive “and” is used in the QCAT Act rather than the Full Court’s formulation of “correct or preferable decision” in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, this has no substantive effect on the relevant test to be applied: see Queensland Building Services Authority v Meredith [2010] QCATA 50 at [5].
In Shi v Migration Agents Registration Authority (“Shi”), Kiefel J (as her Honour then was) elaborated on the “correct and preferable decision” test as follows:
“… The object of the review undertaken by the Tribunal has been said to be to determine what is the ‘correct or preferable decision’. ‘Preferable’ is apt to refer to a decision which involves discretionary considerations. A ‘correct’ decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration.”[52]
[52]Shi at [140].
Each of the judgments in Shi emphasises the importance of having appropriate regard to the statutory framework which empowers the original decision-maker to make the decision under review.[53] This is because “[i]n each case what is entailed in a decision is to be ascertained by reference to the statute providing for it”.[54] In this way, the precise content of what is required by the “correct and preferable decision” test is informed and shaped by the statutory framework which makes provision for the original decision to be reviewed.
[53]Shi at [25] (per Kirby J), [99] (per Hayne and Heydon JJ), [117] (per Crennan J), [132]–[134] (per Kiefel J).
[54]Shi at [145].
The Tribunal does not have a supervisory jurisdiction, and the exercise of its jurisdiction does not depend upon the identification of any error in the original decision-maker’s reasons.[55] Rather, it is required to arrive at “its [own] conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed”.[56] This is because “the Tribunal is authorised and required to review the actual decision, not the reasons for it”.[57]
[55]Shi at [131], [136]–[137], [141].
[56]Shi at [141].
[57]Shi at [141], citing Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429–430.
Here, for the purpose of producing the correct and preferable decision, the Tribunal was required to conduct a review of the decision by way of a reconsideration of the material that was before the Commissioner when the decision was made while standing in the shoes of the Commissioner.[58]
[58]Shi at [134], [141].
The appellants submit that the Tribunal failed to undertake a review of the Commissioner’s decision because the Tribunal merely concluded that there was sufficient material before the Commissioner for the Commissioner to be satisfied of the requirements of the Liquor Act.[59] The essence of the appellants’ submission is that the Tribunal failed to exercise its review jurisdiction because it failed to stand in the shoes of the Commissioner and decide for itself what was the correct and preferable decision. According to the appellants, the Decision does not show that the Tribunal undertook afresh the “broad evaluative exercise” that was conferred upon the Commissioner.[60]
[59]Appellants’ Outline of Argument, paras 28-32.
[60]Appellants’ Outline of Argument in Reply, para [4]; Transcript of Proceedings, 27 May 2024, 1-17, lines 20–37.
There are a number of reasons why the appellants’ submissions cannot be accepted. These reasons emerge from a contextual examination of both the Tribunal proceedings and the Decision.
First, the Tribunal, by reference to the relevant statutory provisions of the QCAT Act and the Liquor Act, correctly identified its review jurisdiction. As observed at [52] above, the Tribunal set out the relevant provisions of the QCAT Act and the Liquor Act in relation to the Tribunal exercising its review jurisdiction. The fact that the Tribunal correctly identified its review jurisdiction is unsurprising given that the appellants, the Commissioner and MFB had all filed submissions before the Tribunal which referred to the nature of the review to be undertaken.[61]
[61]See [38], [41] and [42] above.
The appellants refer to the three passages from the transcript of proceedings before the Tribunal set out at [44], [45] and [48] above to suggest that the Tribunal misunderstood its review jurisdiction. An examination of these three passages does not disclose any such error. The passage set out at [44] merely records the Tribunal seeking to identify within the material the actual review decision. This was entirely appropriate given that the Tribunal was undertaking a review of the Commissioner’s decision of 23 December 2020, which was the relevant “reviewable decision” for the purposes of Division 3 of the QCAT Act. Further, by operation of s 24 of the QCAT Act, it is the reviewable decision that the Tribunal is either to confirm, amend or set aside for the purpose of either substituting its own decision or returning the matter for reconsideration with directions the Tribunal considers appropriate.
As to the passage set out at [45] above, contrary to the appellants’ submission, this passage actually supports the contention that the Tribunal understood its review jurisdiction. The Tribunal referred to having regard to all the evidence that was before it and that the review was by way of a fresh hearing on the merits. The passage also shows that the Tribunal appreciated that it was able to substitute its own decision for that of the Commissioner’s.
As to the passage set out at [48] above, this relates to a submission by the appellants’ counsel that the role of the Tribunal was to produce the correct and preferable decision. An examination of the transcript reveals that the Tribunal accepted this submission.[62] Such acceptance is consistent with the Tribunal’s observations set out in the passage at [45] above.
[62]RB, Vol 3, p 1206, T1-88 line 10.
Secondly, it is not in dispute that the Tribunal had before it all of the material that was before the Commissioner. Pursuant to s 21 of the QCAT Act, the Commissioner, as the original decision-maker, was required to provide to the Tribunal both a written statement of reasons and all relevant material. From the passage set out at [45] above, the Tribunal appreciated that in conducting the review, it was required to reconsider the material that was before the Commissioner. The Tribunal also appreciated that it had the discretionary power to permit a party to adduce new evidence for the purposes of the review.[63]
[63]See [51]–[52] above.
Thirdly, the appellants’ analysis of the language of the Decision, which suggests a failure on the part of the Tribunal to undertake a reconsideration of the evidence before the Commissioner, while standing in the shoes of the Commissioner, does not withstand scrutiny.
The appellants refer to the language used by the Tribunal in a number of paragraphs of the Decision. In paragraph [163], the Tribunal stated:
“The Tribunal finds that the s 21 documents provided the requisite information required by s 116 and s 121 of the Liquor Act, including information required by the Guidelines, for the Commissioner to make a decision in respect of this commercial hotel licence.”
Similar language is used in paragraph [101] of the Decision where the Tribunal referred to there being “sufficient relevant information included in the Full CIS on which an assessment of risk could be undertaken.” Similarly in paragraph [107] of the Decision, the Tribunal refers to it being “not satisfied that relevant information was not made available in the Full CIS”, and that “[a]vailable information was contained in that document and was provided to the Commissioner.”
It must be accepted that the language in the Decision is not consistent. While the appellants point to language which suggests that the Tribunal was only considering the sufficiency of the evidence before the Commissioner in order for the Commissioner to be satisfied of the requirements of s 121 of the Liquor Act, the Tribunal also used language consistent with the Tribunal itself being satisfied of those requirements. Examples of this language are found at paragraphs [114], [145], [150] and [163] of the Decision which are set out above.[64]
[64]See [55], [58], [60], and [61] above.
Any inconsistency in the language used by the Tribunal does not, however, reveal that the Tribunal misunderstood its review jurisdiction. The differing language reflects the Tribunal’s consideration of the specific issues identified by the appellants. The appellants do not suggest any error on the part of the Tribunal in addressing and disposing of these issues.[65]
[65]Transcript of Proceedings, 27 May 2024, 1-22, lines 23–24.
The Commissioner and MFB both submit that the nature of a merits review by the Tribunal is shaped by the way in which an applicant chooses to run its case before the Tribunal.[66] Tribunals conducting a merits review are generally considered to have an inquisitorial nature, rather than an adversarial one. In relation to this, Brennan J stated in Bushell v Repatriation Commission:
“Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it.”[67]
[66]First Respondent’s Outline of Argument, paras [9]–[19]; Second Respondent’s Outline of Argument, paras [24]–[25].
[67](1992) 175 CLR 408 at 424–5.
Relying on the authority of the Full Federal Court in Kuswardana v Minister for Immigration and Ethnic Affairs (“Kuswardana”),[68] the appellants submit that the fact that "the appellants advanced specific complaints as to the Commissioner’s process could never be a foundation for the Tribunal failing to exercise the statutory jurisdiction that required that the Tribunal hear and decide the review by way of a fresh hearing on the merits and to produce the ‘correct and preferable decision’".[69]
[68](1981) 35 ALR 186.
[69]Appellants’ Outline of Argument in Reply, para [8].
In Kuswardana, the Full Court set aside a decision of the AAT because it had failed to consider whether the deportee was still an “immigrant” under the applicable legislation, a finding of which was an essential precondition to the AAT’s power to deport. Neither party before the Tribunal had raised the issue and the proceedings continued on the assumption that the condition was satisfied. Despite this, the Full Court found that the AAT was under an independent duty when reaching the “correct or preferable decision” to turn its attention to the matter. Chief Justice Bowen held that:
“[T]he conduct of the party’s case before the Tribunal goes to this court’s discretion as to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error.
The case before this court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties’ submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status.”[70]
[70]Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195.
However, Kuswardana can be readily distinguished from the present case. First, Kuswardana involved an omission or failure by the parties to make submissions on an issue that the Tribunal was statutorily compelled to consider. The appellants, however, seek to rely upon it as authority for the proposition that where parties do, in fact, make submissions on what are the relevant issues to be decided by the Tribunal, the Tribunal is not entitled to reach the “correct or preferable decision” merely by resolving those issues. Secondly, the nature of the matter sought to be argued afresh must be considered. Kuswardana involved a jurisdictional fact: the AAT had no power to deport the applicant unless it was established that they fell within the definition of “immigrant”. In those circumstances, it fell into legal error by acceding to the parties’ assumptions that the definition was satisfied. Conversely, in the present case, the appellants do not suggest that the Tribunal failed to consider a matter which amounted to a “jurisdictional fact”. Indeed, they accept that all of the relevant material was before the Tribunal at the time it made its decision. Provided the Tribunal did not mistake the nature of its review jurisdiction (which it did not), its reasons were properly shaped by the issues identified by the parties.[71]
[71]See Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 at [16]–[17].
The primary issue identified by the appellants before the Tribunal was that the relevant documents before the Commissioner did not contain sufficient information to support the original decision, and that the correct and preferable decision was unavoidably to set aside the original decision and refuse the application. This primary submission invited the Tribunal to consider the sufficiency of the material before the Commissioner for the purposes of the Tribunal itself arriving at the correct and preferable decision. The framing of the primary issue in this way by the appellants readily explains any inconsistency in the language used by the Tribunal. Importantly, however, the framing of the primary issue in this way made it necessary for the Tribunal to reconsider the material that was before the Commissioner for the purposes of the Tribunal itself being satisfied of the requirements of s 121 of the Liquor Act.
Similarly, with the three “critical failures” identified by the appellants before the Tribunal, the appellants sought to have the Tribunal set aside the approval because the Tribunal could not be satisfied of the necessary requirements of the Liquor Act. As correctly observed by MFB:
“Whether there was sufficient information before the [Commissioner] (and so, the Tribunal) was a critical part of the Appellants’ case below.”[72]
[72]Second Respondent’s Outline of Argument, para [30].
It is apparent from the Decision that the Tribunal itself had regard to the requirements in s 121 of the Liquor Act. These considerations are usefully summarised in MFB’s Outline of Submissions as follows:
“(a)Section 121(a)(i): Before the Tribunal, the Appellants conceded that the CIS provided by [MFB] satisfied s 116(8). In any event, the CIS was considered in detail in the Decision at [68]–[114].
(b)Section 121(a)(ii): The public interest related to the amenity of the community was considered in the Decision at [71], [73], [86], [90] and [143]–[145].
(c)Section 121(b): Objections to the grant of the application were considered in the Decision at [153]–[159].
(d)Section 121(c): Comments made in relation to the application by local government or police under s 117 of the Liquor Act were considered in the Decision at [17]–[18], [20]–[22], [29]–[35], [106]–[107], [144]–[145], [148]–[150].
(e)Section 121(d): The impact on the amenity of the community was considered in the Decision at [143]–[145].
(f)Section 121(e): The application is not for an extended trading hours approval, and so s 121(e) is not relevant.
(g)Section 121(f): Any relevant conditions imposed on a development approval that relates to premises the subject of the application (in this case, a noise management plan) were considered in the Decision at [115]–[126].”[73]
[73]Second Respondent’s Outline of Argument, para [34].
When the language of the Tribunal in the Decision is considered in context and having regard to the principle that a court should not construe the reasons for a decision under review “minutely and finely with an eye keenly attuned to the perception of error”,[74] it may be accepted that the appellants have failed to establish that the Tribunal did not exercise its review jurisdiction.
[74]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Disposition
The appeal should be dismissed with costs.
BRADLEY J: I agree with the reasons of Flanagan JA and concur with the orders proposed by his Honour.
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