Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 Hearing dates: 8 November 2024 (last submissions received 15 November 2024) Date of orders: 22 November 2024 Decision date: 22 November 2024 Jurisdiction: Appeal Panel Before: Seiden SC DCJ, Deputy President D Ziegler, Senior Member Decision: (1) The application for a stay of the Tribunal's orders of 28 June 2024 is dismissed. (2) The Appeal Panel grants leave to appeal on Grounds 1A, 2, and 3. (3) Grounds 1A, 1B, 4 and 6 are dismissed. (4) Grounds 2 and 3 are allowed. (5) The Orders of the Tribunal dated 28 June 2024 are set aside. (6) The matter is remitted to the Tribunal as originally constituted, subject to availability, and otherwise to a differently constituted Tribunal, to be reconsidered in accordance with these reasons. (7) In the event a party considers it necessary for the Tribunal to make any further orders to give effect to this decision in accordance with these reasons, the party is to provide to the Tribunal and the other parties submissions and suggested orders, within 7 days of this decision. (8) In the event any party seeks their costs, then: (a) the costs applicant is to provide to the Tribunal and the other parties submissions within 14 days; (b) the costs respondent is to provide to the Tribunal and the other parties submissions within 14 days of receipt of the costs applicant's submissions; (c) the costs applicant is to reply within 7 days of receipt of the costs respondent's submissions; (d) the submissions are to include submissions in relation to whether the costs decision may be determined without a hearing, in accordance with s 50 of the NCAT Act. (9) The matter is listed for directions on the remittal on 3 December 2024 at 2.30pm. Catchwords: LICENSING — packaged liquor licence — appeal by commercial competitors — statutory task under s 48(5) of the Liquor Act — approach to risk assessment — whether balance of probabilities erroneously used — whether Tribunal failed to reach requisite satisfaction — relevance of comparing proposed licence to grant of historical licence APPEALS — Meaning of "question of law" — whether the Tribunal asked itself the wrong question when approaching the question of risk — leave to appeal PRACTICE AND PROCEDURE — stay — utility of a stay Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 1997 (NSW) Liquor Act 2007 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 Ballesty & Anor v Director of Liquor & Gaming & Ors [2002] NSWSC 1102 Commissioner of Police NSW v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327 Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64, [1991] HCA 54 Craig v South Australia (1995) 184 CLR 163 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 CXZ v Children's Guardian [2020] NSWCA 338 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 GLJ v The Trustees [2023] HCA 32 Ice Box Pty Ltd v Independent Liquor & Gaming Authority [2022] NSWCATAD 358 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kramer v Stone [2023] NSWCA 270 Kudrynski v Orange City Council [2024] NSWCA 33 Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Medical Council of New South Wales v Mooney [2024] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 MZAPC v Minister for Immigration and Border Protection 273 CLR 506; [2021] HCA 17 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Williams v R (1986) 161 CLR 278; [1986] HCA 88 Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: Nil Category: Principal judgment Parties: Narraport Woollahra Holdings Pty Ltd (First Appellant) Souffle Pty Ltd (Second Appellant) Ice Box Liquor Pty Ltd (First Respondent) NSW Independent Liquor & Gaming Authority (Second Respondent) Representation: Counsel: J Emmett SC / H Grace (Appellants) C Ireland (First Respondent) Z Heger SC / C Beshara (Second Respondent)