Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 184 Hearing dates: 11 May 2018 Date of orders: 27 July 2018 Decision date: 27 July 2018 Jurisdiction: Appeal Panel Before: Wright J, President Hennessy LCM, Deputy President M Harrowell, Principal Member Decision: 1. The appeal is dismissed. 2. The appellant is to pay 90% of the respondent's costs of and incidental to the appeal as agreed or assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). Catchwords: APPEALS – nature of internal appeal to the Appeal Panel under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – effectively an appeal by way of rehearing – points raised for first time on appeal – principles as to when Appeal Panel should allow points to be raised for first time on appeal – points allowed to be raised LIQUOR LICENSING – removal of licences under s 59 of the Liquor Act 2007 (NSW) – powers of Independent Liquor and Gaming Authority when dealing with removal application – Authority has power to determine a removal application in respect of a hotel licence by granting a packaged liquor licence – Authority has power to determine a removal application in respect of a hotel licence by imposing conditions on the hotel licence so that it operates only to authorise the retail sale of packaged liquor LIQUOR LICENSING – s 45(3)(c) of the Liquor Act 2007 (NSW) – meaning of "the business or activity to which the proposed licence relates" – words refer to the business or activity which can be carried out at the proposed premises under the proposed licence including conditions – whether development consent in force for the business or activity to which the proposed licence relates – required consent in place for use of the premises under the proposed licence LIQUOR LICENSING – s 15(1) of the Liquor Act 2007 (NSW) – proper construction of "the premises" in relation to the hotel primary purpose test – words refer to the area specifically identified as the proposed licensed premises in the application and as delineated by the Authority under s 94 – hotel primary purpose test satisfied in this case as the primary purpose of the business to be carried out on the proposed premises was at all times the sale of liquor by retail Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1958 (Vic) Extradition Act 1988 (Cth) Gaming and Liquor Administration Act 2007 (NSW) Gaming and Liquor Administration Regulation 2008 (NSW) Gaming Machines Act 2001 (NSW) Interpretation Act 1987 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Liquor Act 1982 (NSW) Liquor Act 2007 (NSW) Liquor Licensing Act 1985 (SA Liquor Licensing Act 1997 (SA) Liquor Regulation 2008 Lotteries and Art Unions Act 1901 (NSW) Unlawful Gambling Act 1998 (NSW) Workers' Compensation Act 1926 (NSW) Cases Cited: Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 Bottega Rotolo Pty Ltd v Saturno's Colonist Tavern Pty Ltd [2008] SASC 6 Connecticut Fire Insurance Co v Kavanagh (1892) AC 473 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 Giannarelli v The Queen (1983) 154 CLR 212; [1983] HCA 41 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 O'Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33 O'Reilly v State Bank Of Victoria Commissioners (1983) 153 CLR 1; [1983] HCA 47 Pierce v Liquor Licensing Commission (1987) 47 SASR 22 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41 Rizhao Steel v Koolan Iron Ore (2012) 43 WAR 9 Suttor v Gundowda (1950) 81 CLR 418; [1950] HCA 35 Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Texts Cited: Macquarie Dictionary, 3rd Ed Rev National Competition Policy Review, New South Wales Liquor Act 1982 and Registered Clubs Act 1976, Final Report (2003) Category: Principal judgment Parties: The Independent Liquor and Gaming Authority (appellant) Trent Auld (respondent) Representation: Counsel: N Sharp SC and J Emmett (appellant) T Howard SC (respondent) Solicitors: Crown Solicitor's Office (NSW) (appellant) Hatzis Cusack Lawyer (respondent) File Number(s): AP 18/10365 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 Date of Decision: 30 January 2018 Before: K Ransome, Senior Member File Number(s): 2017/00020211 Table of Contents Table of Contents REASONS FOR DECISION Introduction Background The Appeal Raising the points in grounds 1 and 4 for the first time on appeal Review of the relevant Provisions of the Liquor Act 2007 Introductory provisions of the Liquor Act Foundation for the licensing system The types of licences available Hotel licences Small bar licences On-premises licences Packaged liquor licences Other types of licences Liquor licences under the Liquor Act generally Removal of licences Other relevant provisions Ground 1 – The Authority's powers under s 59 Ground 1 – parties' submissions Ground 1 – consideration Ground 1 – lack of power under s 59 to grant a different type of licence Ground 1 – lack of power to impose conditions that in effect convert a hotel licence into a packaged liquor licence Ground 1 – conclusion Grounds 2 and 3 – the construction and application of s 45(3)(c) Grounds 2 and 3 – parties' submissions Grounds 2 and 3 – consideration Ground 4 – application of the hotel primary purpose test Ground 4 – parties' submissions Ground 4 – consideration Conclusion and orders Appendix 1 Should the points in grounds 1 and 4 be allowed to be raised on appeal – evidence and findings Should the points in grounds 1 and 4 be allowed to be raised on appeal – parties' submissions Should the points in grounds 1 and 4 be allowed to be raised on appeal – waiver argument Should the points in grounds 1 and 4 be allowed to be raised on appeal – Suttor v Gundowda Pty Ltd principles and related matters Principles applicable to new points raised in NCAT internal appeals Application of principles concerning new points in NCAT internal appeals REASONS FOR DECISION Introduction 1. The Independent Liquor and Gaming Authority has appealed against the Tribunal's orders: 1. setting aside the Authority's decision to refuse Mr Auld's application to remove hotel licence LIQH400122896 (the Licence) from the Mill Tavern premises to the ALDI store, in Young; and 2. approving that application and providing for licence conditions that, in effect, limited the activities that could be carried out under the Licence to the supply of packaged liquor for consumption off the premises. 1. The principal question in this appeal is whether s 59 of the Liquor Act 2007 (NSW) (the Liquor Act) empowers the Authority to approve the removal to other premises of a hotel licence with conditions limiting the authorisation conferred by the licence to the retail sale of packaged liquor. 2. Other questions related to whether, on the proper construction of s 45(3)(c) of the Liquor Act, the Tribunal could be satisfied that there was in force a relevant development consent to use the premises for the purposes of the business or activity to which the proposed licence related and whether the hotel primary purpose test, under s 15 of the Liquor Act, had been properly applied. 3. For the reasons set out below, we have concluded that the appeal should be dismissed. In summary, under s 59 of the Liquor Act, the Authority does have power to approve the removal of the Licence, in the circumstances of the present case, to the ALDI store in Young, subject to the conditions referred to in order 3 of the Tribunal at first instance. In addition, the Tribunal did not err in its construction or application of ss 45(3)(c) or 15 of the Liquor Act. Background 1. In 2012, the Authority refused to grant a new packaged liquor licence that would have allowed the ALDI store in Young to sell packaged liquor from a designated part of the store. 2. On 28 October 2015, Mr Auld lodged a form notifying the Authority that the Mill Tavern in Young, being the premises licensed under the Licence, had ceased to trade. The reason given was: "[t]emporarily closed while considering redevelopment options". 3. In January 2016, ALDI Foods Pty Ltd entered into an agreement to purchase the Licence from Mr Auld for $175,000 on the basis that it was to be removed from the Mill Tavern to the ALDI store in Young. 4. On 16 June 2016, Mr Auld lodged an application to remove the Licence from the Mill Tavern premises to the ALDI store. In Part 3 of the application form, headed "Proposed premises for the liquor licence", it was stated: "The proposed licensed premises will comprise an area of only some 33sqm and the fit out of the same will involve minor non-structural alterations. The use and carrying out of such internal alterations is Complying Development for the purposes of the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 and accordingly, a Complying Development Certificate has been issued, a copy of which is enclosed." 1. In Part 6, under the heading "More information about the removal application", the following appeared: "The owner of the Hotel Licence and the premises to which the licence applies, has entered into an agreement with ALDI for the sale of the Hotel Licence for removal to the ALDI Supermarket at 11 Zouch Street Young where it will operate as the liquor department for the Supermarket. The sale is conditional upon the grant of the removal application. Should the removal application be successful (or prior to the grant of the application) the licence will be transferred to ALDI Foods Pty Limited." 1. A Category B Community Impact Statement Form was completed and submitted in support of the removal application, together with other documentation, including a list of 10 conditions contained in a document headed "Conditions consented to being imposed upon the grant of Mill Tavern removal to the ALDI Supermarket situated at 11 Zouch Street, Young". The conditions relevant to the present appeal were as follows: "… 6. The licensee will ensure the liquor sales area is adequately defined from the rest of the supermarket by means of a fixed, solid and permanent barrier. … 8. The licensee will not sell refrigerated liquor products from the licensed premises. 9. The licence is not to be removed to other premises nor is the consumption of liquor permitted on the licensed premises. 10. Entertainment is not to be provided on the licensed premises." 1. These conditions were "consented to" in the sense that, if the Authority was minded to grant the removal application, Mr Auld would accept those conditions. 2. By letter dated 23 December 2016, the Authority informed Mr Auld that it had decided to refuse the application for removal. The Authority also at that time provided a statement of reasons for its refusal. 3. On 20 January 2017, Mr Auld lodged an administrative review application with the Tribunal seeking a review of the Authority's decision, under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), as permitted by s 13A of the Gaming and Liquor Administration Act 2007 (NSW) and cl 5B(a) of the Gaming and Liquor Administration Regulation 2008 (NSW). The review application was heard on 1 and 2 August 2017. 4. On 30 January 2018, the Tribunal at first instance ordered, under s 63(3)(c) of the ADR Act, that: "(1) The decision under review is set aside. (2) The decision is made that the application to remove the hotel licence from the Mill Tavern in Young to the ALDI Supermarket in Young is approved. (3) The conditions attached to the removed licence will be those agreed between the parties which permit the licenced premises to operate as a packaged liquor outlet only." 1. At the same time, the Tribunal published its reasons for decision – Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25. 2. It can be noted here that an "updated" version of the "conditions consented to" was before the Appeal Panel. The updated document contained the same 4 conditions set out above (differently numbered) and additional conditions, including most relevantly: "… 12. There are to be no gaming machines kept, used and operated at the premises. 13. The sale of liquor will be limited to packaged liquor only. …" 1. It appears that these updated conditions reflect what the Authority and Mr Auld would agree to if the present appeal were unsuccessful. The Appeal 1. On 28 February 2018, the Authority lodged its notice of appeal. It appealed against all of the orders made on 30 January 2018. The Authority relied on four grounds of appeal which it formulated as follows: "Ground 1 The Tribunal erred in law in: a. failing to find that there was no power under s. 59 of the Liquor Act 2007 (NSW) ("the Act") to grant a removal application that in substance converted a hotel licence into a packaged liquor licence; or b. further or alternatively, failing to find that there was no power to impose licence conditions which undermined the authorisation conferred by the hotel licence pursuant to s. 14(1) of the Act, and consequently erred in setting aside the Authority's decision and in lieu thereof approving the application to remove the hotel licence from Mill Tavern in Young to the ALDI supermarket in Young. Ground 2 The Tribunal erred in law in its construction of s. 45(3)(c) of the Act at [29] in holding that the expression "the business or activity to which the proposed licence relates" in that provision should be construed as meaning "the business or activity that the person is actually proposing to carry out", and instead it should have construed it as meaning "the business or activity to which the proposed licence relates", and consequently erred in finding that s. 45(3)(c) was satisfied in this case. Ground 3 The Tribunal erred in finding at [29] that it was satisfied, within s. 45(3)(c) of the Act, that a development consent was in force under the Environmental Planning and Assessment Act 1979 (NSW) to use the premises for the purposes of the business or activity to which the proposed licence relates. Ground 4 The Tribunal erred at [21] in its application of the hotel primary purpose test in s. 15 of the Act by proceeding on the incorrect basis that the proposed licensed premises only comprised that part of the ALDI supermarket designed as the packaged liquor section, whereas in fact the licensed premises the subject of the application was 11 Zouch Street in Young, New South Wales." 1. These grounds were each said to raise a question of law and, consequently, leave to appeal was not required, in accordance with s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. In his reply to appeal, filed on 9 March 2018, Mr Auld noted that the points in grounds 1 and 4 had not been raised at first instance and contended that they ought not to be entertained on this appeal. In addition, it was said that: 1. ground 1 was misconceived as the Authority did have power to grant the application for removal under s 59 of the Liquor Act, the authorisation conferred by s 14 was not undermined by the conditions, and the Tribunal did not err by deciding that the removal application should be granted and imposing conditions; 2. the Tribunal had not made any error as to the construction or application of s 45(3)(c) of the Liquor Act, as contended in grounds 2 and 3; 3. on the proper understanding of the "premises to which the licence relates", the primary purpose test in s 15(1) of the Liquor Act was satisfied. 1. As to the nature of the appeal, we make the following observations. The decision of the Tribunal of 30 January 2018 was a decision in proceedings for an administrative review decision and thus was an "internally appealable decision", within ss 32 and 80 of the NCAT Act. It was not an "interlocutory decision", within the meaning of that expression in s 4(1) of the NCAT Act. Consequently, the Authority was entitled to appeal against the decision as of right on any question of law – s 80(1) and (2)(b) of the NCAT Act. Mr Auld accepted that the Authority did not require leave to appeal in the present case. 2. The appeal was heard on 11 May 2018. At that hearing, each party led further evidence not before the Tribunal at first instance, without objection by the other party. Mr Auld read the affidavit of Jonathan Harris sworn 30 April 2018 and tendered a number of additional documents (pages 668 [not 557 as stated at the hearing] to 729 of the Appeal Bundle). The Authority read the affidavit of Helen Sims affirmed 7 May 2018. These affidavits and the documents went to the question of whether the Authority should be allowed to raise the points in grounds of appeal 1 and 4. Raising the points in grounds 1 and 4 for the first time on appeal 1. Mr Howard of Senior Counsel, who appeared for Mr Auld, and Ms Sharp of Senior Counsel, who appeared with Mr Emmett of counsel for the Authority, addressed at some length the question whether the points in grounds of appeal 1 and 4 should be allowed to be raised on appeal, not having been raised at first instance. 2. Our detailed reasons concerning whether the Authority should be permitted to raise the issues in grounds 1 and 4 are set out in Appendix 1 to these reasons. In summary, when dealing with appeals under s 80(2) of the NCAT Act, the Appeal Panel should apply the following principles (developed from the principles applied in appellate Courts dealing with appeals by way of rehearing, as explained in Appendix 1): 1. A point that was not raised before the Tribunal at first instance should not be allowed to be raised on appeal when that point could possibly have been met by calling evidence below, unless there are most exceptional circumstances such that the interests of justice require a new hearing and that course can be taken without irremediable prejudice to the other party. 2. Where all the relevant facts have been admitted or established beyond controversy or the point is one of construction or law so that the Appeal Panel can properly determine the appeal without further evidence or a new hearing, then the Appeal Panel may entertain the point if it is expedient and in the interests of justice to do so. 3. The fact that a new point involves the interpretation of a public statute or the powers of a statutory body may, depending on the circumstances, weigh in favour of allowing it to be raised for the first time on appeal. 1. The same principles do not necessarily apply if the Appeal Panel determines that the grounds for the appeal warrant a new hearing, and proceeds to deal with the appeal as permitted under s 80(3) of the NCAT Act. 2. As explained in Appendix 1, we decided that: 1. the issue raised in ground of appeal 1 as to whether the Authority had power to grant a removal application that effectively converted a hotel licence into a packaged liquor licence, either directly or indirectly by the imposition of conditions, should be allowed to be raised on this appeal. The issue turns on the proper construction of s 59 and other provisions of the Liquor Act and is not dependent upon findings of contested facts. It concerns the powers of the Authority generally. There would be no irremediable prejudice to Mr Auld if the point was allowed to be raised and public law considerations favour permitting the Authority to raise it. 2. the issue in ground 4 should also be allowed to be raised on this appeal, on the basis that it only raises a question of law and does not seek to challenge the factual proposition that the proposed licensed premises were only the 33 sqm designated packaged liquor section of the ALDI store. This point turns on the proper construction of s 15 and other relevant provisions of the Liquor Act and not upon contested factual matters. Determining the point has some general public significance and there is no irremediable prejudice to Mr Auld. 1. Accordingly, we now turn to consider the grounds of appeal. Review of the relevant Provisions of the Liquor Act 2007 1. This appeal concerns an application to "remove" a licence from the existing licensed premises to new premises. The determination of each ground of appeal depends principally on the proper construction of the Liquor Act. Accordingly, before addressing each ground, it is useful to review the relevant provisions of the Act, especially those which concern the types of licences available and the removal of licences. 2. The analysis below demonstrates, among other things, that the categories of licence available under the Liquor Act are not defined in such a way that they are mutually exclusive. For many businesses selling liquor, more than one type of licence may be available. Further, when the Authority deals with an application for removal of a hotel licence to other premises, it is required to satisfy itself of all the matters that would have to be satisfied if it were considering whether to grant a new licence in respect of those premises. Introductory provisions of the Liquor Act 1. The object of the Liquor Act set out in s 3(1)(a) emphasises that the regulation and control of the supply and consumption of liquor is to be "consistent with the expectations, needs and aspirations of the community" (s 3(1)(a)). The object in s 3(1)(b) indicates that the regulatory system established by the Liquor Act should be "flexible and practical … with minimal formality and technicality". In construing the Liquor Act, a construction that would promote these objects is to be preferred to one that does not – s 33 of the Interpretation Act 1987 (NSW). 2. In addition, under s 3(2), each person exercising functions under the Liquor Act is required to have due regard to: 1. the need to minimise harm associated with the misuse and abuse of liquor; 2. the need to encourage responsible attitudes and practices towards the promotion, sale and supply of liquor, among other things; and 3. the need to ensure that the sale, supply and consumption of liquor contributes to and does not detract from the amenity of community life. 1. Relevant general definitions in s 4(1) include: "licence means a licence under this Act. licensed premises means the premises to which a licence relates. licensee means the holder of a licence. liquor means: (a) a beverage which, at 20° Celsius, contains more than 1.15% ethanol by volume, or (b) any thing that is not a beverage referred to in paragraph (a) but, for the purposes of sale, is held out to be beer or spirits, or (c) any other substance prescribed by the regulations as liquor." … premises includes: (a) a building or structure, or (b) land or a place (whether built on or not), or (c) a vehicle, vessel or aircraft." Foundation for the licensing system 1. Part 2 (ss 7 to 9) establishes the foundation for the system of licensing established by the Liquor Act. Sections 7 and 8 provide that: 1. a person must not sell liquor unless the person is authorised to do so by a licence under the Liquor Act – s 7(1); 2. a person must not open, keep or use unlicensed premises for the purpose of selling liquor – s 8(1). 1. Failure to comply with these provisions is an offence and can lead to the imposition of a fine or imprisonment or both. In order to avoid committing a criminal offence, a person selling liquor, and the premises from which the liquor is sold, must be licensed under the Liquor Act. 2. Section 9 seeks to ensure that licenses under the Liquor Act are effective to regulate conduct by providing that a licensee and its employees and agents must comply with the conditions to which its licence is subject and must not sell or supply liquor otherwise than in accordance with the authority conferred on the licensee by the Act. The types of licences available 1. Part 3 (ss 10 to 39) establishes the types of licences that may be granted, the authorisation conferred by each type, and other conditions or provisions relating to each type of licence. Section 10 lists the seven types of licence available and the incidents of such licences as follows: "(1) The following types of licences may be granted and held under this Act: (a) hotel licence, (b) club licence, (b1) small bar licence, (c) on-premises licence, (d) packaged liquor licence, (e) producer/wholesaler licence, (f) limited licence. (2) A licence authorises the licensee to sell or supply liquor in accordance with this Act and the conditions of the licence. (3) The authorisation conferred by a licence is subject to this Act and the regulations." 1. The "conditions of the licence" referred to in s 10(2) include: 1. the conditions imposed by the Authority or the Secretary under the Liquor Act – s 11(1)(a). Sections 52, 53 and 54 empower the Authority and the Secretary to impose, vary or revoke licence conditions in various circumstances; 2. the conditions imposed by the Liquor Act and those prescribed by the regulations – s 11(1)(b). Section 11(3) provides that such conditions include "any provision of this Act that imposes a requirement or restriction (other than as an offence) on or in relation to the licence, licensee or licensed premises concerned"; 3. any other conditions authorised to be imposed on a licence under the Liquor Act – s 11(1)(c). 1. A licensee must comply with any such conditions – s 11(2), as well as s 9 referred to above. 2. The "authorisation conferred by a licence", referred to in s 10(3), is specified for each type of licence separately, in Pt 3. 3. Of the seven types of licences available under the Liquor Act, the types primarily relevant in the present matter are the hotel licence and the packaged liquor licence. In addition, it is also useful to consider in a little more detail small bar licences and on-premises licences that relate to "accommodation premises". Hotel licences 1. Under s 4(1), "hotel" means "the premises to which a hotel licence relates", and "hotelier" means "the holder of a hotel licence under [the 2007] Act". These definitions do not suggest that "hotel", as used in the Act, is to be construed as confined to a specific type of business or building which in ordinary usage might be called a "hotel". 2. Hotel licences are dealt with in ss 14 to 17. Section 14(1) describes the principal authorisations provided by a hotel licence as follows: "A hotel licence authorises the licensee to sell liquor by retail on the licensed premises for consumption on or away from the licensed premises." 1. Thus, there are two elements to the authorisation provided by s 14(1), joined by the conjunction "or": 1. sale of liquor by retail on the licensed premises for consumption on the premises; 2. sale of liquor by retail on the licensed premises for consumption away from the premises. 1. Section 14(6) confers an additional authorisation for a holder of a hotel licence to sell liquor by retail for the purposes of a function to be held on other premises, as authorised by the Authority on application by the licensee. 2. The authorisations conferred by s 14 are quite general in nature. They do not have inherent in them any concept of a "hotel" limited in any particular way. 3. The authorisations provided by a hotel licence do not apply, however, unless the "hotel primary purpose test is complied with in relation to the licensed premises" – s 15(2). That test is set out in s 15(1) in the following terms: "(1) The following provisions apply in relation to a hotel licence (the hotel primary purpose test): (a) except as provided by section 15A, the primary purpose of the business carried out on the licensed premises must at all times be the sale of liquor by retail, (b) the keeping or operation of gaming machines (as authorised under the Gaming Machines Act 2001) on the licensed premises must not detract unduly from the character of the hotel or from the enjoyment of persons using the hotel otherwise than for the purposes of gambling." 1. Similarly to the definitions of "hotel" and "hotelier" and the authorisations in s 14, the hotel primary purpose test does not require a "hotel" to involve any particular type of business beyond primarily selling liquor by retail. The test in s 15(1)(a) does not provide any support for construing "hotel" in the Liquor Act as referring to a business that could be classified as a "hotel" in some common or ordinary sense, for example "a building in which accommodation and food, and alcoholic drinks are available" (Macquarie Dictionary, 3rd Ed Rev). 2. Likewise, s 15(1)(b) does not suggest that "hotel" should be so construed. It acknowledges that gaming machines may be kept and operated at a hotel licensed under the Liquor Act, but does not require that every such hotel must keep and operate gaming machines. The expressions "the character of the hotel" and "the enjoyment of persons using the hotel", in s 15(1)(b), are to be understood in the light of the purpose of that paragraph and its context. The terms of s 15(1)(b) indicate that its purpose is to ensure that, if gaming machines are kept and operated at premises licensed as a hotel, those premises are not to become merely a gaming venue. The relevant context includes that, under s 7 of the Gaming Machines Act 2001 (NSW) (the Gaming Machines Act), it is lawful to keep or operate, in accordance with that Act, an approved gaming machine in a hotel or on the premises of a club, despite anything in the Lotteries and Art Unions Act 1901 (NSW), the Unlawful Gambling Act 1998 (NSW) or any other Act or law (other than the Gaming Machines Act). In the Gaming Machines Act, "hotel" and "club" have the same meanings as in the Liquor Act. There is no similar provision rendering lawful the keeping or operation of gaming machines on other types of licensed premises. 3. Section 15A permits a hotelier to cease to sell or supply liquor on the licensed premises during extended trading hours, or standard trading hours in certain circumstances approved by the Authority, but, at the same time, to continue to provide: "other services and facilities on the licensed premises (such as food and non-alcoholic beverages, entertainment and the use of the premises for conferences or meetings and for gambling activities that are otherwise permitted on the premises)". 1. While s 15A provides examples of the types of activities, other than the sale of liquor by retail, that may take place at premises licensed under a hotel licence, it does not establish that these or any other similar activities must be carried on at premises licensed under a hotel licence. 2. Significantly, s 16 empowers the Authority, when granting a hotel licence, to designate that licence as a "general bar licence". Such a designation of a hotel licence has the consequences set out in s 16(2), (3) and (4), as follows: "(2) The designation of a hotel licence as a general bar licence cannot be changed. (3) It is not lawful to keep or operate gaming machines on the premises to which a general bar licence relates. Accordingly, the keeping or operation of gaming machines on any such premises cannot be authorised under the Gaming Machines Act 2001. (4) Despite section 14, a general bar licence does not authorise the sale or supply of liquor for consumption away from the licensed premises at any time." 1. Section 16(4) demonstrates that a licence can be a hotel licence under the Liquor Act and yet not permit the licensee to take advantage of both elements of the authorisation provided by s 14(1). In other words, the fact that a hotel licence can be designated as a general bar licence under the Liquor Act means that the Act contemplates that a licence, that does not authorise the sale of liquor by retail for consumption both on and off the premises, can nonetheless be a hotel licence under the Act. 2. Section 17 imposes other conditions on a hotel licence but none of these requires that the business conducted on the licensed premises must be of any particular type beyond primarily selling liquor by retail. 3. When the provisions concerning hotel licences are considered, it is apparent that hotel licenses are not applicable in respect of some premises commonly referred to as "hotels". These include the premises of businesses which primarily provide accommodation to travellers rather than primarily selling liquor by retail. As a result of the hotel primary purpose test, these "hotels" cannot be licensed under a hotel licence. As will be seen below, if liquor is sold at these "hotels", they can be licensed under an on-premises licence. In addition, if liquor is not sold on premises primarily used to provide traveller accommodation, they may not need to be licensed at all. Indeed, the Liquor Act does not proceed on the basis that the description "hotel" is to be confined to premises licensed under a hotel licence. Section 110(2) of the Liquor Act expressly provides that a person is not prevented by that section: "from using the term "hotel" to describe unlicensed premises on which tourist or visitor accommodation is provided on a commercial basis or from using that term as part of the name of any such unlicensed premises". 1. In relation to hotel licences, one further observation can be made. While a hotel licence designated as a general bar licence confers only a subset of the authorisations generally conferred by s 14(1) in respect of hotel licences, a general bar licence is not unique in this regard. There are other forms of licences which also confer an authorisation that can be seen to be largely a subset of the authorisations conferred by s 14(1) in respect of hotel licences. These include: 1. small bar licences; 2. some on-premises licences; and 3. packaged liquor licences. Small bar licences 1. Small bar licences are dealt with in ss 20A to 20C. The authorisation provided by a small bar licence is "to sell liquor by retail on the licensed premises for consumption on the licensed premises only" – s 20A. This is a subset of the authority provided by s 14(1) in respect of a hotel licence, which is "to sell liquor by retail on the licensed premises for consumption on or away from the licensed premises". 2. A hotel licence, designated as a general bar licence, provides the same authorisation as a small bar licence, given s 16(4), which provides that "[d]espite section 14, a general bar licence does not authorise the sale or supply of liquor for consumption away from the licensed premises at any time". 3. The principal difference between a small bar licence and a hotel licence, designated as general bar licence, is the number of patrons who may be on the premises. Section 20C(1) provides, as one of the "miscellaneous conditions" applicable to small bar licences, that the number of patrons must not exceed "60 or such greater number as may be prescribed by the regulations". There is no similar numerical restriction for a general bar. 4. Accordingly, it appears that a person proposing to carry on the business of operating a bar intended to have no more than 60 patrons at a time could lawfully operate under a hotel licence, a hotel licence designated as a general bar licence, or a small bar licence. The businesses to which hotel licences and small bar licences could apply are not necessarily mutually exclusive. On-premises licences 1. On-premises licences are dealt with in ss 21 to 28. The principal authorisation conferred by an on-premises licence is "to sell liquor by retail on the licensed premises for consumption on the licensed premises only" – s 25(1). 2. If an on-premises licence relates to accommodation premises, additional authorisations are conferred on the licensee. "[A]ccommodation premises" is defined in s 4(1) as meaning: "premises that provide temporary accommodation to travellers and includes a bed and breakfast establishment, but does not include a boarding house, lodging house, nursing home, caravan park or any other type of premises prescribed by the regulations for the purposes of this definition." 1. Under s 25(8), an on-premises licence that relates to accommodation premises (which, we note, may include some businesses called "hotels") confers the following, additional authorisations on the licensee to sell liquor by retail on the licensed premises: 1. for consumption on the premises only – at any time, on any day; 2. for consumption away from the premises – but only if the sale is ancillary to the provision of a meal for consumption away from the premises, and the volume does not exceed 2 litres. 1. Once again, these authorisations in s 25(1) and (8) can be seen as: 1. a subset of the authority provided by s 14(1) in respect of a hotel licence; and 2. similar, at least in part, to the authority provided by s 20A in respect of a small bar licence. 1. A significant difference between an on-premises licence and a hotel or small bar licence is that an on-premises licence cannot be granted "in respect of any premises if the primary purpose of the business or activity carried out on the premises is the sale or supply of liquor" – s 22(1). Further, the authorisation conferred by an on-premises licence does not apply "if the primary purpose of the business or activity carried out on the licensed premises at any time is the sale or supply of liquor" – s 22(2). To a similar effect, s 24(1) provides: "An on-premises licence authorises the sale or supply of liquor only if the liquor is sold or supplied for consumption on the licensed premises with, or ancillary to, another product or service that is sold, supplied or provided to people on the licensed premises." 1. These restrictions in ss 22 and 24 do not, however, apply if the premises are part of an "airport", as defined in s 4(1), or are located on land occupied by a tertiary institution and cater for students of that institution – ss 22(3) and 24(4), or if the Authority permits otherwise – s 24(3). 2. Thus, subject to the airport, tertiary institution and other exceptions, on-premises licences can generally be seen as being applicable in respect of restaurants, entertainment venues, various types of traveller accommodation and other businesses where the activity carried on at the premises is not primarily the sale or supply of liquor. 3. Like the business carried out under a hotel licence and small bar licences, the business carried out under an on-premises licence must, in some but not all cases, be generally open to the public – s 28. Similarly, food must be available when liquor is sold or supplied under an on-premises licence, subject to exceptions approved by the Authority – s 27. 4. The hotel primary purpose test in s 15 requires the primary purpose of the business carried out on premises licensed under a hotel licence to be at all times the sale of liquor by retail. Taking the opposite approach, s 22 prohibits an on-premises licence being granted in respect of premises if the primary purpose of the business carried out on those premises is the sale or supply of liquor, except in the case of premises that are part of an "airport", or are located on land occupied by a tertiary institution and cater for students of that institution or if the Authority permits otherwise. To this extent, the businesses to which hotel licences and on-premises licences apply are mutually exclusive. 5. Thus, a business primarily supplying liquor by retail for consumption on the premises might be able lawfully to operate under: 1. a hotel licence; 2. a hotel licence designated as a general bar licence; 3. a small bar licence (if the number of patrons would not exceed 60); or 4. an on-premises licence, if the premises are part of an "airport", are on land occupied by a tertiary institution and cater for its students or if the Authority permits. 1. For certain businesses, it is apparent that only one type of licence, and not others, will be appropriate. Nonetheless, the Liquor Act does not generally regulate the sale of liquor rigidly on the basis that only one type of licence is or can be appropriate for every particular business or activity related to the sale of liquor. Packaged liquor licences 1. Packaged liquor licences are dealt with in ss 29 to 31. Under s 29(1), a packaged liquor licence principally authorises the licensee "to sell liquor by retail in sealed containers on the licensed premises, for consumption away from the licensed premises only" at certain times, in accordance with s 29(1)(a) and (b), (2) and (3A). This can also be seen as a subset of the authorities conferred on a hotel licensee by s 14(1) "to sell liquor by retail on the licensed premises for consumption on or away from the licensed premises". 2. If the packaged liquor business is operated as part of another business, s 30 requires there to be a separated liquor sales area as follows: "(1) If the primary purpose of the business carried out on the premises to which a packaged liquor licence relates is not the sale of liquor for consumption away from the licensed premises, liquor may only be sold under the licence in an area of the licensed premises (the liquor sales area) that is adequately separated from those parts of the premises in which other activities are carried out. (2) The principal activity carried out in any such liquor sales area must be the sale or supply of liquor for consumption away from the licensed premises." 1. Accordingly, if the "or" in s 14(1) is disjunctive (whether or not it is also conjunctive), then a person proposing to carry on a business primarily selling liquor by retail for consumption off the premises could operate under a hotel licence or a packaged liquor licence. The businesses to which hotel licences and packaged licences apply are not mutually exclusive. Nor do the other provisions of the Liquor Act relating to hotel and packaged liquor licences require the conclusion that only one type of licence can be granted in respect of a particular business that involves primarily selling liquor by retail for consumption off the premises. Other types of licences 1. The three other types of licences, club licences, producer/wholesaler licences and limited licences, are dealt with in ss 18 to 20 and 32 to 39. None of these, however, has a role to play in this appeal. Liquor licences under the Liquor Act generally 1. Part 3 establishes a regime of liquor licensing that operates by authorising: 1. a licensee; 2. to sell, by retail or wholesale or both, or supply liquor; 3. on specified premises; 4. at certain times; 5. subject to any conditions contained in the Liquor Act, any conditions imposed by the Authority or the Secretary and any other conditions authorised to be imposed under the Liquor Act. 1. The terms of the Liquor Act do not require a licensee to use every or any element of the authorisation provided by the licence in question. Nor does the Act mandate that any licensee must sell or supply liquor, whether at specified times, on particular premises, or as part of any particular type of business or otherwise. A licensee is authorised, but not required, to do those things. Whether or not a licensee uses the elements of the authorisation conferred by the licence in question will depend on the conditions imposed on the licence and the decisions made by the business having regard, presumably, to the competitive environment in which it operates and other commercial considerations. 2. Moreover, the provisions of Pt 3 do not define the categories of licences in such a way that they are all necessarily mutually exclusive. Apart from the prohibition on a club holding a hotel licence in s 20(1)(a), the most significant distinguishing feature that renders various types of licences inapplicable is whether or not the primary purpose of the business carried out on the licensed premises is selling liquor by retail. Those businesses whose primary purpose is the sale of liquor by retail cannot, except in the limited cases specified in s 22(3), be licensed under an on-premises licence, because of the operation of s 22(1) and (2). By way of contrast, businesses whose primary purpose is not the sale of liquor by retail cannot be licensed under a hotel licence, by operation of s 15(1) and subject to the exception in s 15A. 3. Where the primary purpose of an on-going business to be carried out on the licensed premises is selling liquor by retail, the range of licences potentially available includes, at least: 1. a hotel licence; 2. a hotel licence designated as a general bar licence; 3. a small bar licence; 4. an on-premises licence in respect of premises at an "airport" or tertiary institution; or 5. a packaged liquor licence. 1. The Liquor Act does not require a licensee to use every element of the authorisation conferred by the licence in question. This has the consequence that there is often more than one type of licence that could be appropriate in any particular case. The terms of Pt 3 of the Liquor Act do not establish a licensing structure in which only one category of licence is appropriate and available to be granted in any particular case. 2. Understanding the Liquor Act licensing structure in this way is, in our view, consistent with the object of facilitating the balanced development, in the public interest, of the liquor industry through a flexible and practical regulatory system with minimal formality and technicality, referred to in s 3(1)(b). It also assists in ensuring that competitive forces determine how businesses selling or supplying liquor operate so as to meet the expectations, needs and aspirations of the community, thus promoting the objective in s 3(1)(a). Removal of licences 1. A licence under the Liquor Act may be removed from the existing licensed premises to new premises under s 59. Section 59(1) permits a licensee to apply to the Authority for approval to remove "the licence" to premises other than those specified in the licence. The manner and form of such an application are dealt with in s 59(2). 2. Section 59(3) specifies how the removal application is to be dealt with by the Authority. Under that subsection, the Authority must deal with and determine the application "as if it were an application for the granting of a licence in respect of those other premises" and "the provisions of Division 1 [of Pt 4], in particular, extend to an application for the removal of a licence to other premises as if it were an application for a licence." 1. Division 1 of Pt 4 (ss 40 to 47) concerns how applications for the granting of a licence under the Liquor Act are to be made and determined, and the documentation required. Importantly for present purposes, it is s 45(1) which empowers the Authority to grant or refuse to grant a licence. When this subsection is read with s 59(3), it follows that the Authority also has power to grant or refuse an application to remove a licence, after considering the application and submissions received. 2. Section 45(3), read with s 59(3), provides that the Authority must not grant a removal application unless the Authority is satisfied of certain matters including: "(c) if development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the premises for the purposes of the business or activity to which the proposed licence relates—that development consent or approval is in force." 1. Division 1A of Pt 4, ss 47A to 47J, relates to temporary freezes on licences and other authorisations and is not said to be directly relevant in the present matter. It does, however, indicate that within certain geographic areas and different communities limits on licences can be imposed in order to minimise harm associated with the abuse and misuse of liquor and to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life. 2. Under s 48, a removal application must generally be accompanied by a Community Impact Statement (CIS). This is expressly stated to have the object of facilitating the Authority's consideration of the impact that granting the application will have on the local community. Such a CIS must be prepared in accordance with the regulations and any requirements of the Authority – s 48(4)(a), (6) and (7). 3. Clause 10 of the Liquor Regulation 2008 requires a category B CIS where the application is for approval, under s 59, to remove one of the relevant types of licences. Under cl 11(2) and (3), there are more stakeholders who are required to be given notice and consulted in respect of a category B CIS compared to a category A CIS. It was not in dispute in the present case that an appropriate category B CIS was prepared and accompanied Mr Auld's application and that the Authority (and the Tribunal exercising the Authority's functions) had had regard to the CIS and been satisfied of the relevant matters, as required by s 48(5). 4. As has been noted above, ss 52 to 54 concern the conditions that can be imposed on licences by the Authority or the Secretary. Section 53 contains the general power given to the Authority to impose conditions. its relevant provisions are: "(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. …" 1. There is nothing in s 53 that expressly confines or limits the conditions that may be imposed on a licence by the Authority. Other relevant provisions 1. Under s 93, if licensed premises, other than under a limited licence, cease trading during any continuous period of more than 6 weeks, the licensee must notify the Authority in writing that the premises have ceased to trade. This provision is consistent with the licensee being free not to sell or supply liquor using all or any of the authorisations conferred by the licence in question. 2. Section 94(1) requires the Authority to specify the boundaries of licensed premises when the licence is granted and s 94(2) empowers the Authority to change those boundaries in certain circumstances. 3. We now turn to the specific consideration of the Authority's grounds of appeal. Ground 1 – The Authority's powers under s 59 1. The Authority's first ground of appeal has been quoted in full above. The gist of this ground is that s 59 of the Liquor Act does not empower the Authority to grant a removal application so that a hotel licence can be transformed into a packaged liquor licence, directly or indirectly by the imposition of conditions on the hotel licence. Ground 1 – parties' submissions 1. In support of ground 1, the Authority relied upon the wording of s 59(1). It was emphasised that the subsection only refers to an application to remove "the licence" to other premises. Thus it was submitted that, on a removal application, the Authority could only approve the changing of the premises not the changing of "the licence", from one type to another. A further contention was that s 59(1) of the Liquor Act did not permit a hotel licence "to be removed to premises that do not meet the description of a hotel". In the Authority's submission, s 59(3) was merely a mechanical provision and did not indicate that a new type of licence could be granted by the Authority when considering a removal application. 2. In this regard, the Authority drew attention to the general licensing scheme of the Liquor Act. It argued that the different categories of licences established in Pt 3 and the processes set out in Pt 4, including the requirement in s 45(3)(c), bespeak a legislative intent that the category of licence granted in respect of premises should correspond with the nature of the activities that are to be, and can lawfully be, conducted at those premises. It was also submitted that provisions such as ss 15A and 17 "reveal a clear legislative intent that the holder of a hotel licence be in the business of operating a hotel". 3. Consequently, it was submitted in effect that a hotel licence could not be removed to new premises which were a supermarket, or part of a supermarket, where only the sale of liquor by retail for consumption off the premises was intended and lawful. The only licence that would be appropriate for such new premises was said to be a packaged liquor licence. 4. The Authority also submitted that what could not be done directly, could not be done indirectly by imposing conditions. In addition, it was contended that the Liquor Act did not permit conditions to be imposed on a licence so as to undermine the full nature of the authorisation conferred by that licence under the Act. In the present case, it was said that the conditions to be imposed under order 3 had the effect of altering the nature of (or more specifically, the authorisations conferred by) the hotel licence. The result was that it was no longer a hotel licence but rather a packaged liquor licence. Such a result was said to be impermissible under the Liquor Act. 5. The Authority relied on the decision of the Full Court of the South Australian Supreme Court in Pierce v Liquor Licensing Commission (1987) 47 SASR 22 and subsequent similar South Australian decisions to support its arguments. 6. Mr Auld submitted that the Liquor Act defined a "hotel" to mean "the premises to which a hotel licence relates". Thus, when the Authority submitted that a hotel licence could not be removed to premises that did not meet the description of a "hotel", the Authority could not be referring to the statutorily defined term but to "some commonly accepted, conventional understanding of what a 'hotel' is according to its ordinary meaning". Such an approach, it was submitted, was impermissible as a matter of statutory construction in the circumstances. Further and in any event, there was no clear or generally accepted meaning of "hotel" upon which the Authority could rely to found its argument. 7. Mr Auld also submitted that, understood in their regulatory context, licences under the Liquor Act are essentially bundles of rights "which will be defined in large measure by the conditions which are imposed". Further, it was submitted that "[t]he ambit of the … bundle of rights conferred can change, either by way of expansion or curtailment, when conditions are imposed, varied or revoked." Contrary to the Authority's position, Mr Auld submitted that the categories of licences under the Liquor Act were not mutually exclusive. The rights conferred by a hotel licence include the rights conferred by a packaged liquor licence. This is so even though the hotel licence, if not limited by conditions, includes additional rights such as that of supplying liquor for on-premises consumption. 8. Mr Auld contended that the proposed removal in the present case did not involve an impermissible conversion of one type of licence into another because: "[t]he effect of the removal of the subject hotel licence with the agreed conditions imposed was to utilise one of the rights which previously attached to the licence – namely the right to sell packaged liquor – and to forego another, namely the right to sell liquor for on-premises consumption." 1. It was also observed that there was no provision in the Liquor Act which stated or had the effect that a person could only obtain or use one of the categories of licence, dictated by how their business activities should be characterised. The fact that a liquor sales section of a supermarket could be operated under a packaged liquor licence did not mean that it could not also be operated under a hotel licence, even if the right to sell liquor for on-premises consumption was not used. This, and the removal process which would allow it, were said to be consistent with the object of flexibility referred to in s 3(1)(b) of the Liquor Act. 2. Mr Auld contended that there was a regulatory benefit, consistent with the object of minimising alcohol related harm and preserving community amenity, in permitting the removal application to be granted rather than requiring an application for a new licence. It was argued: "By seeking to obtain the rights to sell packaged liquor for off-premises consumption by way of removal of the hotel licence that had previously attached to the Mill Tavern, the application avoided adding to the totality of such rights in the locality. Moreover, by agreeing to a condition to limit the licence rights to the sale of packaged liquor it reduced the potential density in the locality of on-premises consumption of liquor." 1. Lastly in relation to ground 1, Mr Auld submitted that the Authority has not identified the proposed conditions, in the present case, which "undermined the authorisation" conferred by the hotel licence under s 14(1) of the Liquor Act or why. Ground 1 – consideration Ground 1 – lack of power under s 59 to grant a different type of licence 1. In summary, we do not accept that the Authority lacked power under s 59 to grant a removal application that in substance converted a hotel licence into a packaged liquor licence. This does not follow from the reference to "the licence" in s 59(1) as contended by the Authority. Nor do we agree that by referring to "remov[ing] the licence", s 59(1) "does not authorise changing the licence or the type of licence. It simply provides for the premises the subject of the licence to change". In our view, s 59(3) is not merely a mechanical provision supporting s 59(1). Section 59(3) is the operative provision which, when read with s 45, effectively empowers the Authority to grant or refuse a removal application, with or without conditions imposed under s 53. 2. The provisions of s 59 that are of primary importance in this context are the following: "(1) A licensee may apply to the Authority for approval to remove the licence to premises other than those specified in the licence. (2) An application for approval to remove a licence to other premises must: (a) be in the form and manner approved by the Authority, and (b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and (c) be advertised in accordance with the regulations, and (d) comply with such other requirements as may be approved by the Authority or prescribed by the regulations. (3) An application for approval to remove a licence to other premises is to be dealt with and determined by the Authority as if it were an application for the granting of a licence in respect of those other premises. Accordingly, the provisions of Division 1, in particular, extend to an application for the removal of a licence to other premises as if it were an application for a licence. …" 1. On its terms, s 59(1) does not empower the Authority to do anything. That subsection simply gives a licensee a right to apply to the Authority for approval to change the premises to which a licence relates. How that application is to be dealt with by the Authority and the relevant powers of the Authority must be found elsewhere in the Liquor Act. In our view, the relevant empowering provisions are ss 59(3) and 45. 2. The use of the words "the licence" in s 59(1) is to be understood in the light of the definitions in s 4(1). Substituting the definitions of "licensee" and "licence" into s 59(1), it reads, in part: "A holder of a licence under this Act may apply to the Authority to remove the licence …". Thus, "the licence", as used in that subsection, simply refers to the licence under which the applicant for removal is a licensee. It does not follow from the use of the words "the licence" in s 59(1) that the Authority's powers to deal with and determine applications for removal of licences, under other provisions of the Liquor Act, must necessarily be confined to changing only the premises. The powers of the Authority when dealing with and determining a removal application depend on the precise terms of the provisions which confer those powers and not on the terms of s 59(1). 3. Similarly, the fact that an application under s 59(1) is described as an application for approval "to remove" the licence should not be misconstrued as indicating a legislative intention that s 59 is limited to moving a licence intact to a new address. The "premises … other than those specified in the licence" referred to in s 59(1) are not limited to an address different from that of the existing licensed premises. 4. "Premises" is defined in s 4(1) as including a "building or structure" and "land or a place (whether built on or not)" as well as a "vehicle, vessel or aircraft". The precise identification of licensed premises is achieved by the Authority specifying the boundaries of the licensed premises in accordance with s 94. 5. As a result, when licensed premises change, a removal application under s 59 may well be appropriate and required, even though the address of the licensed premises does not change. This will be so where licensed premises are redeveloped and a liquor business is to be carried on after redevelopment. For example, if an existing licensed hotel building is demolished and residential apartments, a gym and a bottle shop are built on the site, the "premises" will have changed but the address will remain the same. A removal application could and, if there is no other licence under which the bottle shop can operate, should be made under s 59 to "remove" the licence to the new "premises". If such an application is granted, the Authority would have to specify the boundaries of the new licensed premises at the address and might impose new conditions on the licence having regard to the nature and extent of the new licensed premises and of the liquor business to be carried on there. 6. Neither subs (1) nor any other subsection of s 59 contains any provision that purports to limit the "premises" to which a licence can be "removed". Thus, this section does not expressly establish that a hotel licence cannot be removed "to premises that do not meet the description of a hotel", as the Authority contended; whether "hotel" in that context refers to a "hotel" in common or ordinary usage or to the limited meaning of "hotel" as set out in s 4(1), namely "the premises to which a hotel licence relates". Any such restriction, if it existed, would have to be found either expressly in, or by implication from, other provisions of the Liquor Act. We have not been taken to any provisions that create such an express or implied restriction and we do not believe there are any that are relevant to the present proceedings. 7. The Authority submitted that s 59(1) was the operative provision and s 59(3) was merely "mechanical". We do not agree with that submission. As explained above, s 59(1) does not confer any power on the Authority. Nor, on its proper construction, does it expressly or impliedly limit any power conferred on the Authority by other provisions of the Liquor Act. 8. Contrary to the Authority's submission, s 59(3) does not provide the mechanism for making an application under s 59(1). Section 59(2) sets out how an application is to be made and might be seen as a mechanical provision supplementing s 59(1). In our view, s 59(3) is the operative provision. It imposes a duty on the Authority to deal with and to determine a removal application: 1. "as if it were an application for the granting of a licence in respect of those other premises"; and, 2. the provisions of Div 1 of Pt 4 of the Liquor Act "extend to an application for the removal of a licence to other premises as if it were an application for a licence". 1. Part 4 Div 1 includes s 45(1) which expressly empowers the Authority to grant or refuse to grant a new licence after considering the application and any submissions received. 2. As to the other provisions of Pt 4 Div1, it was not suggested on this appeal that any of those provisions, apart from s 45(3)(c), had not been complied with. Section 45(3)(c) will be examined in more detail when we deal with grounds 2 and 3. 3. When s 59(3) is read with s 45, it can be seen that the Authority's power and duty is to determine whether to grant or refuse a removal application in the same way that it would determine "an application for the granting of a licence in respect of those other premises". The use of "a licence" in s 59(3) is, however, ambiguous. 4. Since an application under s 59 is described as being for approval "to remove the licence to premises other than those specified in the licence", it might be thought natural to construe "a licence" as referring only to a licence of the type sought to be removed. Otherwise, it could be said that "the licence" was not being "removed" at all. On the other hand, given that the Authority is required to deal with a removal application "as if it were" an application to grant a licence in respect of the new premises, "a licence" in this context might also naturally refer to a licence that is appropriate for the new premises in the circumstances. 5. In our view, the second construction is to be preferred for a number of reasons. First, although an application under s 59 is described in subs (1) as an application "to remove the licence to premises other than those specified in the licence", subs (3) expressly requires the Authority not to deal with it as such but rather to deal with it in another way, namely, "as if it were an application for the granting of a licence in respect of those other premises". It seems unlikely that the legislature would require the Authority to deal with a removal application as if it were a fresh application for a licence in respect of new premises, but only allow the Authority to grant the type of licence that had been suitable for the old premises. Not permitting the Authority to have regard to the nature of the new premises and what activities were proposed and permitted to be carried on there would be somewhat perverse. 6. Secondly, given that s 59(3) requires the Authority to comply with all the requirements under Pt 4 Div 1 that have to be met in dealing with any other application for a new licence, there is unlikely to be any reason, from a regulatory and harm minimisation point of view, which would justify restricting the type of licence that may be granted as a result of such a process to the type of licence sought to be removed. Indeed, restricting the type of licence that could be granted on a removal application in this way would not give effect to the object of the Liquor Act specified in s 3(1)(a). That object includes regulating "the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community." It would rather tend to frustrate those expectations, needs and aspirations if a hotel licence could not be removed to new premises unless those premises permitted substantially the same operations as at the old hotel premises. Construing "a licence" in this context as a licence that is appropriate for the new premises in all the circumstances, rather than for the old premises, would, in our view, promote the object in s 3(1)(a). 7. Thirdly, adopting the second construction is also consistent with the licensing structure and the seven types of licences established by Pt 3 of the Liquor Act. Although there is some overlap or potential overlap among the various types of businesses that could be conducted under each type of licence, the authority conferred by a licence must cover the actual activities proposed to be carried out on the premises. To that extent, the licence granted should correspond with the nature of the proposed premises and business. A construction of s 59 that facilitates the granting of licences appropriate to the new premises is to be preferred to one which would prevent or inhibit such a result. 8. Fourthly, construing "a licence" that may be granted by the Authority under s 59(3) as restricted to the same type of licence as that sought to be removed would involve a degree of inflexibility and formality which is inconsistent with the object in s 3(1)(b). That paragraph states that it is an object of the Liquor Act to: "facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality". 1. If "a licence" in s 59(3) is construed as referring to one that is appropriate for the new premises in all the circumstances, this allows premises to be licensed so that they reflect current expectations and aspirations of the community. It also acknowledges the fact that these expectations and aspirations may well have changed since the licence sought to be removed was granted. Adopting such an approach contributes to the development of the industry in a balanced way reflecting current public interest. Permitting the Authority, on a removal application, to grant a licence that reflects the nature of, and the business to be carried out at, the new premises, rather than the old, involves appropriate flexibility and avoids undue formality and technicality. 2. In brief, the terms of s 59(3) and Pt 4 Div 1 lend themselves to the construction that the Authority may deal with an application to remove a hotel licence to new premises, which are only suitable to be used as a packaged liquor store, by granting a packaged liquor licence. Nothing in the Liquor Act expressly prevents such an approach or outcome. This approach involves the regulatory system operating flexibly and practically with minimal formality and technicality. The objects of the Liquor Act in s 3(1)(a) and (b) are likely to be promoted if such a construction is adopted. This is so because, when the Authority considers whether to grant a removal application that involves converting a hotel licence into a packaged liquor licence, the Authority must consider the proposed business in the new premises and comply with, and be satisfied of, all relevant requirements for the grant of such a licence, under Pt 4 Div 1 of the Liquor Act, as well as having regard to the matters in s 3(2). 3. For all of these reasons, we reject the contention in the first part of the Authority's ground 1. The Authority does have power, when considering an application to remove a hotel licence, in accordance with s 59(3), to grant a packaged liquor licence, provided it is satisfied that it would be appropriate to grant a packaged liquor licence if it were considering, under s 45, an application for such a licence in respect of the new premises. Ground 1 – lack of power to impose conditions that in effect convert a hotel licence into a packaged liquor licence 1. The second part of ground 1 concerned whether the Authority had power, when dealing with a removal application under s 59, to impose licence conditions which in effect limited the authorisation conferred by the hotel licence under s 14(1) of the Liquor Act. Put another way, the issue raised was whether the Authority, when determining a removal application, had power to impose conditions on a hotel licence so that it became, in effect, a packaged liquor licence. 2. One argument put in this regard was that what could not be done directly by the Authority, could not be done indirectly by the imposition of conditions. As we have held that the Authority could determine a removal application by granting a different type of licence, this argument fails. Nonetheless, even if we are wrong in that conclusion, the Authority may still have power to impose conditions on the licence being removed so as to limit the business or activity that can be carried out under that licence at the new premises. 3. In order to consider this second part of ground 1, it is necessary to have regard to the source of the Authority's power to impose conditions on licences. 4. Under s 53(1) the Authority has power to impose conditions on a licence at any time and on its own initiative. In addition, under s 53(2), the Authority may at any time vary or revoke any condition imposed by it, whether on application by the licensee or on the Authority's own initiative. 5. Although they are not subject to any express fetters in the Liquor Act, these powers, like all statutory powers, must be used in good faith for the purposes for which they are conferred – O'Reilly v State Bank Of Victoria Commissioners (1983) 153 CLR 1 at 48; [1983] HCA 47. Put another way, and adapting the words of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [90]; [2013] HCA 18 to the present case, it is proper to construe s 53(1) as conferring on the Authority the power to impose such conditions as it thinks fit, in the circumstances of a particular case, provided it does so according to law and to reason within the limits set by the subject-matter, scope and purposes of the Liquor Act. 6. As the long title of the Liquor Act makes clear, the principal purpose of the Act is "to regulate and control the sale and supply of liquor and the use of premises on which liquor is sold or supplied". The nature and intended effect of the regulation are reflected in the objects of the Act and the mandatory considerations, which include: 1. regulation of the supply and consumption of liquor that is consistent with the expectations, needs and aspirations of the community – s 3(1)(a); 2. a flexible and practical regulatory system with minimal formality and technicality – s 3(1)(b); 3. minimising harm associated with misuse and abuse of liquor – s 3(2)(a); 4. ensuring that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life – s 3(2)(c). 1. We accept, as the Authority submitted, that the Liquor Act establishes different categories of licences which are generally intended to reflect the nature of activities that are to be, and can lawfully be, carried out at the premises in question. For the reasons we have already given above, however, we do not accept that these categories of licence are necessarily mutually exclusive. Nor do we accept, having regard to the provisions of Pt 3 of the Liquor Act dealing with the various types of licences, that there is necessarily only one type of licence that can apply to any particular premises at which liquor is to be sold. In our view, the categories of licences established by the Liquor Act are designed to be applied flexibly and practically to achieve the objects of the Act, to minimise harm associated with misuse and abuse of liquor, and to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor. 2. There is nothing, in our view, in s 53 or in the general subject matter, scope and purpose of the Liquor Act, which requires, or supports, the conclusion that the Authority cannot, when considering an application under s 59, impose conditions on a hotel licence that would prevent it being used except to authorise the supply of liquor in packaged form for consumption off the premises. If such a restriction on the Authority's power to impose conditions were to exist, as the Authority contends, it must be found in the specific provisions of the Liquor Act dealing with hotel licences and packaged liquor licenses. 3. Contrary to the Authority's submission, ss 14, 15, 15A and 17 of the Liquor Act do not support the second part of the Authority's ground 1. There do not appear to us to be any other provisions of the Act that would justify the conclusion for which the Authority contends. We shall deal with the sections identified by the Authority in turn. 4. Section 14(1) concerns the two principal but distinct authorisations conferred by a hotel licence, namely to sell liquor by retail on the licensed premises for consumption both on the premises and off the premises. 5. The use of "or" in s 14(1), in relation to these two authorisations, would ordinarily indicate that the licensee is, at least, authorised to use one or other. As there is no apparent regulatory or harm minimisation reason for restricting a hotelier to one or other type of retail sale, the legislative context and purpose suggest that the "or" in s 14(1) is also intended to be conjunctive. If so, the authorisation provided by s 14(1) permits a hotelier to sell liquor by retail for consumption both on and off the premises or only on the premises or only off the premises. We can see no other reason why "or" should be given a different or more restrictive construction. 6. In the absence of any compelling reason to give a restrictive construction to s 14(1), we accept that the "or" in that subsection is both disjunctive and conjunctive. As a result, the holder of a hotel licence can choose to use one or other or both of those authorisations. There is no provision in the Liquor Act that requires a hotelier always to use both authorisations. The hotel primary purpose test in s 15(1), and the fact that it must be satisfied before the authorisations in s 14(1) apply, do not lead to the conclusion that conditions cannot be imposed on a hotel licence preventing it being used to authorise retail sale of liquor for consumption on the premises. 7. Section 15(1) provides: "The following provisions apply in relation to a hotel licence (the hotel primary purpose test): (a) except as provided by section 15A, the primary purpose of the business carried out on the licensed premises must at all times be the sale of liquor by retail, (b) the keeping or operation of gaming machines (as authorised under the Gaming Machines Act 2001) on the licensed premises must not detract unduly from the character of the hotel or from the enjoyment of persons using the hotel otherwise than for the purposes of gambling." 1. The primary purpose of the business carried out on the premises licensed under a hotel licence can be the sale of liquor by retail, within s 15(1)(a), whether the sale is for consumption on the premises only, for consumption away from the premises only or for consumption both on and away from the premises. In addition, s 15(1)(b) only applies if gaming machines are kept or operated on the licensed premises. Accordingly, even if the only business carried out on premises licensed under a hotel licence is the retail sale of liquor for consumption away from the premises with no gaming machines, the hotel primary purpose test will nonetheless be satisfied. 2. The hotel primary purpose test can be satisfied by a retail packaged liquor business. Thus, we do not accept that ss 14 and 15 of the Liquor Act should be construed as impliedly preventing the Authority from imposing conditions on a hotel licence so that the premises can only operate as a retail packaged liquor outlet. 3. The Authority also relied upon the terms of s 15(3), and in particular the reference to "the actual hotel", to support its contentions. Section 15(3) is in the following terms: "Any premises (other than the actual hotel) that are authorised by the Authority for the sale of liquor under a hotel licence are, for the purposes of this Act, taken to be part of the licensed premises to which the licence relates." 1. The expression "the actual hotel" in s 15(3) might be thought to be somewhat unusual but, in our view, it does not indicate that a hotel licence is only relevant to buildings that are an "actual hotel", in some common or ordinary sense of the word "hotel". 2. Section 15(3) refers to three types of premises: "any premises … that are authorised by the Authority for the sale of liquor under a hotel licence"; "the actual hotel"; and the "premises to which the licence relates". The premises to which a licence relates are determined by the boundaries of those premises specified by the Authority in accordance with s 94. 3. The "actual hotel" is to be understood in the light of the definition of "hotel" in s 4(1). If the definition of "hotel" is substituted into s 15(3), that subsection reads: "Any premises (other than the actual 'premises to which a hotel licence relates') that are authorised by the Authority for the sale of liquor under a hotel licence are, for the purposes of this Act, taken to be part of the licensed premises to which the licence relates". Expanded in this way, s 15(3) can be seen as dealing with the circumstance that arises if the Authority authorises a hotelier "to sell liquor by retail for the purposes of a function to be held on … other premises … but only for consumption on those premises …", under s 14(6). The "actual hotel" is a reference to the premises specified, in accordance with s 94, as the licensed premises. The words "[a]ny premises (other than the actual hotel) that are authorised by the Authority for the sale of liquor under a hotel licence" refer to the "other premises" the subject of a s 14(6) authorisation. In order to ensure that there is no contravention of s 8(1) by a hotelier using unlicensed premises for the purpose of selling liquor, s 15(3) provides that the "other premises" on which the sale of liquor is authorised, under s 14(6), are treated as part of the licensed premises, even if they are not within the boundaries defined under s 94. If s 14(6) is construed in this way, it has an operation which is consistent with the way in which s 25(6) operates in relation to on-premises licences. 4. For these reasons, we do not accept that the words "the actual hotel", in s 15(3), support the proposition that a hotel licence cannot be subject to conditions so that the licensed premises can only be used as a retail packaged liquor outlet. 5. In relation to ss 15A and 17, the Authority relied on the use of "hotelier" in those sections to contend that there was a clear legislative intention that the holder of a hotel licence would be "in the business of operating a hotel". It was then submitted that, if a liquor section of a supermarket were operated under a hotel licence, the licensee of supermarket premises would be a "hotelier" and, under provisions such as ss 103, 104 and 121, would be subject to a range of obligations which would make no practical sense in the context of the operator of a supermarket. 6. As the Authority noted, "hotelier" is defined in s 4(1) as "the holder of a hotel licence under this Act". This does not indicate, in our view, that a hotelier is anything more than the licensee of premises to which a hotel licence relates, with the rights and obligations specified by the Liquor Act in respect of such a licensee. There is no reason to conclude that a hotelier is in the "business of operating a hotel" (to use the Authority's expression) in any other sense. Nothing in ss 15A, 17, 103, 104 and 121 causes us to change that view. 7. Under s 15A(1) and (2), a hotelier may, at certain times and subject to certain conditions, cease to sell liquor and continue to provide "other services or facilities" on the premises. Thus, s 15A provides options for a licensee under a hotel licence. Depending on the nature of the business actually conducted, those options may or may not be taken up. The section does not indicate that all premises licensed under a hotel licence must be used for gambling purposes or for the retail sale of liquor for consumption on the premises or in any other particular way. There is no inconsistency between the terms of s 15A and the use of premises, licensed under a hotel licence, only for the retail sale of packaged liquor for consumption off the premises. 8. Section 17(1), (2) and (5) imposes general restrictions on what a hotelier can do by prohibiting: 1. cash advances except in connection with lawful gambling conducted on the premises; 2. carrying on a business limited to the sale of alcohol only to invitees or a particular class of person attending the premises; and 3. selling liquor to, or consuming liquor by, residents or employees in a bar area except at the time when liquor is authorised to be sold in that or any other bar area of the hotel. 1. Section 17(4) imposes an obligation to make available food consistent with the responsible service of alcohol "whenever liquor is sold or supplied on the premises for consumption on the premises". 2. These prohibitions and requirements do not indicate that all premises licensed under a hotel licence must offer gambling or sell liquor for consumption on the premises. Nothing in s 17 is inconsistent with a business that is a retail packaged liquor outlet operating under a hotel licence. 3. Similarly, we do not accept the Authority's contention that the provisions of ss 103, 104 and 121 are inconsistent with a licensee under a hotel licence operating only a retail packaged liquor business. Our reasons are as follows: 1. Section 103(1) applies to hoteliers, and s 103(2) to holders of packaged liquor licences. Both subsections, in effect, require relevant liquor sales areas to be closed to the public at any time when the premises are not authorised to be open for the sale of liquor in those areas. Nothing in the section requires or suggests that a business operating as a retail packaged liquor outlet can only operate under a packaged liquor licence. 2. Section 104 restricts the persons who can be in bar areas and other areas of a hotel where liquor is sold or supplied, outside trading hours. The section does not require every premises operated under a hotel licence to have bar areas. To the extent that s 104 provides that the public cannot be in the area used for retail sale of packaged liquor for consumption off the premises at certain times, this is entirely consistent with a business operating as a retail packaged liquor outlet under a hotel licence. 3. Section 121 confers on the Authority power to grant an authorisation to enable the use by a minor of a specified part of a hotel while in the company of a responsible adult. It does not indicate that a business that was a retail packaged liquor outlet only could not operate under a hotel licence but only under a packaged liquor licence. 4. In cases where the provisions of ss 103, 104 and 121 concerning hoteliers could be operative, they make practical sense whether the business operated under the hotel licence involves the retail sale of liquor for consumption on the premises, off the premises, or both. 1. The Authority also relied upon s 45(3)(c) of the Liquor Act as supporting its position under ground 1. In our view, s 45(3)(c) is consistent with a packaged liquor store operating under a hotel licence, subject to appropriate conditions. We shall consider that provision in detail when dealing with grounds 2 and 3, whose principal focus is s 45(3)(c). 2. The Authority also drew attention to passages from the Second Reading Speech for the Liquor Bill 2007 (Hansard, 5 December 2007, Legislative Council, p 5046). Various types of licence were referred to in that speech as follows: "The first licence category is a hotel licence. Hotel licences will apply to premises where the primary purpose is the sale and supply of alcohol. Hotels will continue to be able to sell liquor for consumption on and off the licensed premises. Bars that do not operate gaming machines or sell takeaway alcohol will be able to obtain a special type of hotel licence, to be known as a "general bar" hotel licence. … The second category is a club licence. Club licences will apply to registered clubs. … The third licence category is an on-premises licence. … On-premises licences will be very flexible. Sale of liquor will be permitted for consumption primarily on the premises. Individual licence conditions imposed by the authority will determine the type of business for an on-premises licence, along with alcohol sale, supply and consumption arrangements. The type of business for an on-premises licence will be specified when the licence is granted. … The fourth licence category is a packaged liquor licence. Packaged liquor licences will apply to liquor stores selling takeaway liquor. … The fifth category of licence is a producer/wholesaler licence. Producer/wholesaler licences will apply to wine producers, brewers, distillers, and wholesalers. The licence allows wholesale sales to other liquor licensees. The licensing arrangements for wine producers will be modernised. This is a key feature that will directly assist regional tourism and regional economies. Wine producers will be able to charge for tastings if desired, make cellar door sales, and operate multiple premises in a wine region under the one licence. … The final category of licence is a limited licence. Limited licences will apply to sporting club and community functions, as well as significant regional and State events. …" 1. There is nothing in that material which is inconsistent with the terms of the Liquor Act itself. Nor does it provide a basis for construing the Act's provisions in a manner different from what we have set out above, even if it is appropriate to have regard to that material in the circumstances. To the contrary, the Minister's statement that "[h]otel licences will apply to premises where the primary purpose is the sale and supply of alcohol" tends to confirm our views already expressed that the licence categories established by the Liquor Act are not intended to be rigidly defined so as to be necessarily mutually exclusive. 2. Finally, the Authority relied upon the reasoning of the majority in the judgment of the Full Court of the Supreme Court of South Australia in Pierce v Liquor Licensing Commission (1987) 47 SASR 22 (Pierce) to support the conclusion that the Authority did not have power to impose conditions on a hotel licence that would permit the licensed premises to be used only as a retail packaged liquor outlet. 3. Pierce concerned an application for a hotel licence under the Liquor Licensing Act 1985 (SA) (the 1985 SA Act) in respect of a "plush" or "upmarket" cocktail bar at which liquor could be purchased, with or without meals, but where no accommodation was provided nor was there a bottle shop. Under the South Australian legislation in force at the time, a hotel licence was a Category A licence whose issue was conditioned on public needs in the locality. (A similar public needs approach to licensing was abolished in New South Wales with the replacement of the Liquor Act 1982 (NSW) (the 1982 Act) by the Liquor Act.) Such a hotel licence conferred authority to sell liquor for consumption on and off the premises at certain times and had certain other requirements. The Liquor Licensing Court of South Australia granted the application, exempting the licensee from providing accommodation and imposing conditions including, in particular, one prohibiting the sale of liquor for consumption off the premises. The proprietors of four nearby hotels appealed to the Supreme Court against the Licensing Court's decision to grant the licence. One ground of appeal was that the premises were not a hotel and thus not eligible for the grant of a hotel licence. The majority upheld the appeal and dismissed the licence application because to grant the licence with the conditions imposed would have had the effect of turning a hotel licence into a licence not appropriate for a hotel, contrary to the statutory scheme of licence classifications established by the 1985 SA Act. 4. Jacobs J, who with Johnston J formed the majority, held, at 23: "In addition, the classes of licences are divided into two categories. A hotel licence is in Category A, along with a retail liquor merchant's licence, a wholesale liquor merchant's licence, and entertainment venue licence and a general facilities licence. The distinctive feature of that category is that the Act, by s 63(1) still regulates the grant of a Category A licence which must be shown to be "necessary in order to provide for the needs of the public in the locality" of the proposed premises "having regard to the licensed premises already existing" in that locality. The purpose of that section — which is designed not only to regulate the disposition of licensed premises in that category by reference to need, but also to protect existing licensed premises from unjustifiable competition — will be largely defeated if the licence under consideration can be so distorted by conditions, that what is called a "hotel licence" is not in any real sense a licence for a hotel." 1. From this passage, it can be seen that Jacobs J's decision concerning the impermissible nature of the conditions in that case was based on a particular view of the South Australian legislation as protecting existing licensed premises from "unjustifiable competition". This approach no longer applies under the present Liquor Licensing Act 1997 (SA) (the 1997 SA Act) which has as one of its objects "to encourage a competitive market for the supply of liquor" – s 3(1)(d). Similarly, in New South Wales the Liquor Act was enacted, at least in part, to give "effect to a number of key reforms arising out of the … National Competition Policy review of liquor licensing legislation (eg the removal of the remaining 'needs' test provisions in relation to the granting of liquor licences)" – see the "Overview of Bill" in the Explanatory Note to the Liquor Bill 2007 (NSW). The purpose of this National Competition Policy review was explained in par 1.1.1 of that review as follows: "The review of the NSW Liquor Act 1982 and Registered Clubs Act 1976 was undertaken by the Department of Gaming and Racing as a result of the NSW Government's commitment to the National Competition Policy under the Competition Principles Agreement. This Agreement requires that Acts that restrict competition should be reviewed and, where possible, reformed." 1. Accordingly, to the extent that Jacobs J's reasoning in Pierce is based on the imposition of the conditions being impermissible because they tended to defeat the purpose of protecting existing hotels from competition, this reasoning is not appropriate in the context of the Liquor Act and we should not follow or apply this aspect of the decision in Pierce. 2. Jacobs J also held, at 24, that there was no power under the 1985 SA Act to impose, by way of condition, "an exemption which so distorts a hotel licence as to fly in the face of the statutory scheme of classification of licences". This was a reference to the condition prohibiting the sale of liquor for consumption off the premises. Johnston J's decision also turned on the view that the Licensing Court lacked power to issue a hotel licence with a condition that prohibited the sale of liquor for consumption off the premises (see the judgment at 37 – 40). 3. In both the judgment of Jacobs J and that of Johnston J, the lack of power to impose such a condition was held to arise out of the obligations applying to the holder of a hotel licence under the 1985 SA Act. Most importantly, under s 27(1)(a) of that Act, the holder of hotel licence had to "keep the licensed premises open to the public for the sale of liquor on every day (except Good Friday, Christmas Day or Sunday) between 11 am and 8 pm". Section 26(1)(a) provided that a hotel licence authorised the licensee to sell liquor for consumption on or off the premises on any day (not being Good Friday, Christmas Day or Sunday) between 5 am and midnight. These provisions, read together, were construed as imposing an obligation on a licensee under a hotel licence to keep the premises open for sale of liquor for consumption both on and off the premises between 11am and 8pm on all days except Good Friday, Christmas Day or Sunday. As a result, the condition prohibiting this from occurring in relation to sales for consumption off the premises was inconsistent with the obligations inherent in every hotel licence under the 1985 SA Act. Imposing such a condition was held to recast the obligations that go with a hotel licence so fundamentally as to seriously undermine the basis of the special position of the hotel licence. Consequently, the imposition of the condition was beyond power. Johnston J summarised the position at 42 as follows: "In my opinion, the application should be dismissed because the applicant was not in reality an applicant for a hotel licence; not because its proposed operation is plainly very different from the sort of operation carried on in hotels in general or even in particular hotels; but because its contemplated operation is not one which falls within the concept of premises licensed as a hotel as that concept is delineated by the authority conferred by the licence and the obligations which go along with the licence." (emphasis added) 1. This reasoning is not applicable to a hotel licence under the Liquor Act, which does not contain provisions relevantly similar to s 27 of the 1985 SA Act. The Liquor Act imposes no comparable obligation on a hotelier to keep the licensed premises open to sell liquor at any particular time or at all. Nor does the Liquor Act require a hotelier to sell liquor for consumption both on the premises and off the premises, if the hotelier does not wish to do so. The provisions of 1985 SA Act differ so greatly from those of the Liquor Act that the decision in Pierce provides no assistance in the present case. 2. The Authority also relied on another South Australian decision, Bottega Rotolo Pty Ltd v Saturno's Colonist Tavern Pty Ltd [2008] SASC 6 (Bottega Rotolo). It can be accepted, as held by Debelle and Belby JJ in Bottega Rotolo at [45], citing Pierce, that as a matter of principle the essential character of a statutory licence cannot be changed through the exercise of a general power to impose conditions. However, for the reasons we have explained above, and unlike the position under the 1985 SA Act: 1. the essential character of a hotel licence under the Liquor Act does not involve the mandatory use of both aspects of the authorisation conferred by s 14(1) of that Act; and 2. the businesses which may be operated under a hotel licence and a packaged liquor licence are not mutually exclusive. 1. Thus, under the licensing scheme established by the Liquor Act, a condition that prevents the holder of a hotel licence from supplying liquor by retail for consumption on the premises does not undermine or contradict the essential nature of a hotel licence and is permitted. 2. It does not follow, however, that there is no limit on the conditions that could be imposed by the Authority under the Liquor Act. As noted above, the Authority's power to impose conditions, while not subject to any express restrictions, must be exercised in good faith for the purposes for which it was conferred and within the limits set by the subject matter, scope and purposes of the Liquor Act. In our view, if the Authority purported to impose a condition on a hotel licence that had the effect that the licensed premises could not be used primarily for the sale of liquor by retail, such a condition would be inconsistent with s 15 and would be likely to be held to be impermissible. Similarly, it is unlikely that the Liquor Act would be construed as permitting the Authority to impose conditions on a hotel licence that completely prevented the licensee from selling liquor by retail. Such conditions seem to us to be inconsistent with ss 14 and 15 and with the scope and purpose of the Act as a whole. It is, however, unnecessary for us to decide what precise limits there might be on the Authority's power to impose conditions under s 53 and we should not be taken as attempting to do so. 3. As explained above, imposing conditions on a hotel licence that prevent the licensee from selling liquor other than in packaged form for consumption off the premises does not amount to impermissibly changing the character of that licence. Nor is it inconsistent with ss 14 or 15 or with the scope and purpose of the Liquor Act generally. Thus, we do not accept that the Authority lacks power, under s 53 of the Liquor Act, to impose a condition preventing a hotelier from using that part of the authorisation conferred by a hotel licence that permits the retail sale of liquor for consumption on the premises, while not prohibiting retail sale for consumption off the premises. 4. For all of these reasons, the Authority (and the Tribunal, exercising the Authority's functions) has power under s 53 to impose on a hotel licence conditions of the type specified in order 3 made by the Tribunal below. Consequently, we reject the contention in the second part of the Authority's ground 1. Ground 1 – conclusion 1. On the bases set out above, we reject the appeal based on ground 1. Grounds 2 and 3 – the construction and application of s 45(3)(c) 1. Ground 2, set out in full above, involved the contentions that: 1. the Tribunal below had misconstrued the words "the business or activity to which the proposed licence relates" in s 45(3)(c) of the Liquor Act by taking them to refer to "the business or activity that the person is actually proposing to carry out"; and 2. consequently, the Tribunal erred in concluding that it was satisfied of the matter in s 45(3)(c), since a development consent was not in force for use of the premises for the purposes of a hotel, as opposed to a packaged liquor business within the ALDI store. 1. Ground 3 was, as we understood it, to the same effect as the second part of ground 2. 2. Section 45(3)(c), read with s 59(3), provides that the Authority must not grant a removal application unless there is in force the development consent or other approval required under applicable planning legislation to use the premises for the purposes of the business or activity to which the proposed licence relates. 3. In this regard, the Tribunal at first instance made the following relevant findings, at [19], [22] and [29] of its reasons: "19 A development consent is in force for the operation of the ALDI supermarket and a development consent (complying development) is in force for the fit out of the relevant part of the supermarket for the purposes of the sale of packaged liquor. … … 22 … ALDI does not have development consent to build a hotel on the site of its store in Young. … 29 … Development consent is in place for that proposed business [a packaged liquor business within the ALDI store]." 1. None of these findings was challenged on appeal. It was also said by the Authority to be common ground that "there was no development consent in force by which ALDI was permitted to operate a hotel at the premises [11 Zouch Street in Young]". Grounds 2 and 3 – parties' submissions 1. The Authority submitted that s 45(3)(c) required there to be a development consent or approval in place permitting a hotel to be carried on at 11 Zouch Street. This was said to follow from the words "the purposes of the business or activity to which the proposed licence relates" and the fact that in this case the licence proposed to be removed to that location was a hotel licence. It was, in effect, submitted that a hotel licence could only be removed to premises on which all the authorities conferred by the licence could be used. Otherwise, a different type of licence should be obtained in respect of those premises because the scheme of the Liquor Act was that "businesses should seek the licence appropriate to their business type". It was also submitted that, since the proposed licence in the present case could not validly include the types of conditions proposed by Mr Auld, those conditions should not have been taken into account by the Tribunal. In short, the Authority's fundamental contention was that: "[w]hen s.45(3)(c) refers to "the business or activity to which the proposed licence relates", that should be understood as referring to the business or activity to which the proposed licence type relates". (emphasis in original) 1. Mr Auld submitted in substance that "the proposed licence" referred not to the proposed licence type but to the actual licence sought to be removed, including all the conditions proposed in the present case. It was in effect said that those conditions could be validly imposed and, when they were taken into account, the business or activity to which the proposed licence related was a retail packaged liquor outlet. The necessary consent or approval was in place for such a business. Thus, the Tribunal could be satisfied of the matters in s 45(3)(c) and its finding that it was so satisfied should not be disturbed. Grounds 2 and 3 – consideration 1. Section 45(3)(c) provides: "The Authority must not grant a licence unless the Authority is satisfied that: … (c) if development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the premises for the purposes of the business or activity to which the proposed licence relates—that development consent or approval is in force." 1. By operation of s 59(3), s 45(3)(c) extends to a removal application as if it were an application for a licence. In order to understand the operation of s 45(3)(c), it is necessary to identify the "premises", "the proposed licence", and "the business or activity to which the proposed licence relates". These three elements are interrelated in s 45(3)(c). 2. The context indicates that: 1. the "premises" in par (c) refers to the premises to be licensed under the "licence" referred to in the chapeau to s 45(3), which is also "the proposed licence" referred to in par (c); and 2. "the proposed licence" is the licence sought in the application under consideration by the Authority. 1. A licence under the Liquor Act cannot be considered separately from the conditions imposed on that licence. This is because the conditions imposed on a licence are an inherent part of the licence since they determine, in part, what is permitted or required under the licence (see ss 9(1)(a), 10(2) and 11(2)). In the context of s 45(3)(c), licence conditions can be very important, particularly if they confine the nature of the business or activity allowed to be carried out under the licence. 2. The main issue raised, in effect, by grounds 2 and 3 was the proper construction of the expression "the business or activity to which the proposed licence relates" used in s 45(3)(c). The Authority submitted that those words should be understood as referring to "the business or activity to which the proposed licence type relates" (emphasis in the original). The contrary position was that those words referred to the actual business or activity to which the proposed licence (including all conditions) relates. 3. We do not think that the Authority's construction should be accepted for a number of reasons. First, the Authority's construction involves, in effect, inserting the word "type" into s 45(3)(c) so that the "business or activity" to which attention is directed is not specific to the licence the subject of the application. If this were the legislative intention, it would be expected that the word would have been inserted by the Parliament itself. In addition, it is likely that s 59(3) would have reflected this approach by also including an express provision requiring removal applications to be dealt with as if it were an application for "the same type of licence" rather than as an application for "a" licence. It can be noted that such a type-based approach was taken in other provisions of the Liquor Act, for example ss 60 and 60A. Section 60(1), which concerns the transfer of licences from one licensee to another, is in the following terms: "The Authority may, on application made in accordance with this section, approve the transfer of a licence to a person who, in the opinion of the Authority, would be entitled to apply for the same type of licence in relation to the licensed premises." (emphasis added) 1. Secondly, for the Authority's construction to be practical, there would generally have to be, for each type of licence under the Liquor Act, a readily identifiable corresponding business or activity. As we have explained above when considering Pt 3 of the Liquor Act, the categories of licence are not necessarily mutually exclusive. Although there may be some businesses that can only be carried out under one type of licence, there are other types of businesses that may be carried out under more than one category of licence. And, one type of licence may permit more than one type of business or activity to be conducted on the licensed premises. This is so in the case of a hotel licence, as we have explained above. As a result, we do not accept that there is in every case or generally a readily identifiable and distinct business or activity to which a proposed licence type could be said to relate. No similar problems arise if the Authority is required to consider whether the required development consent or approval is in place for the business or activity which could be conducted under the actual licence proposed to be granted. 2. Thirdly, even if it were the case that for each type of licence a corresponding unique business or activity could be identified, that business or activity could only be described in general terms and the description would have to cover all businesses or activities that could theoretically be conducted under the type of licence in question. On the Authority's construction, the actual business or activity that was proposed to be conducted under the licence in question would not be the specific subject of consideration. This would be inconsistent with the purpose of s 45. 3. Section 45 contains three significant matters of which the Authority must be satisfied before it can grant a licence in respect of premises, or approve the removal of a licence to other premises. Those three matters concern: 1. the fitness and propriety of the applicant to carry on the "business or activity to which the proposed licence relates" – s 45(3)(a); 2. whether practices will be in place at the licensed premises as soon as the licence is granted and will remain in place to ensure the responsible service of liquor on the premises – s 45(3)(b); 3. whether any required development consent or approval is in force so that the premises can lawfully be used for the purposes of "business or activity to which the proposed licence relates" – s 45(3)(c). 1. The expression "business or activity to which the proposed licence relates" is used in both pars (a) and (c) of s 45(3) as well as in s 45(5A), which provides, in part: "Without limiting subsection (3) (a), in determining whether an applicant is a fit and proper person to carry on the business or activity to which the proposed licence relates, the Authority is to consider whether the applicant: (a) is of good repute, having regard to character, honesty and integrity, and (b) is competent to carry on that business or activity." 1. It has been held to be a sound rule of construction to give the same meaning to the same words appearing in various parts of a statute unless there is reason to do otherwise – Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; [1975] HCA 41. In the present case, we can see no reason why the expression "business or activity to which the proposed licence relates" should not be given a consistent meaning in s 45 of the Liquor Act. 2. When s 45 is read in its context of Pt 4 Div 1 and in the wider context of the Liquor Act as a whole, it can be seen that its purpose is, at least in part, to ensure that the Authority when granting a licence has due regard to the matters listed in s 3(2), namely: "(a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life." 1. This purpose would be served if s 45(3)(a) focused on the fitness or competence of the applicant for the granting or removal of the licence in question to carry on the actual business or activity proposed to be conducted under authority of that licence. It is difficult to perceive how that purpose would be properly and efficiently served if the Authority were required to consider the fitness or competence of the applicant to carry on all the businesses or activities that might theoretically be authorised under the proposed licence type rather than what could be done under the specific licence under consideration. 2. Similarly, s 45(3)(c) can be seen as designed, at least in part, to ensure that the actual business or activity to be conducted on the proposed premises is lawful under the applicable planning regime. If this is correct, s 45(3)(c) assists to ensure that the sale, supply and consumption of liquor, as actually proposed if the licence is granted, contributes to and does not detract from the amenity of community life, by ensuring that planning laws are complied with. If the Authority's construction were adopted, the Authority would be required to consider whether all the businesses that could theoretically be conducted under the type of licence in question, regardless, for example, of the conditions to which the particular licence was to be subject, were lawful under the applicable planning regime. It is not clear what purpose would be being served by such a requirement. Nor is it obvious how such an exercise would practically be carried out. 3. Fourthly, the Authority's construction would have the consequence that the particular conditions proposed in the present case should not be taken into account under s 45(3)(c) because specific licence conditions are not part of the "licence type" under consideration. The Authority contended, however, that as the proposed conditions could not be validly imposed in the present case, they could not be relevant. Contrary to the Authority's contention, we have held that the conditions in order 3 were valid, for the reasons given in relation to ground 1. Where, as in the present case, the "proposed licence" includes valid conditions, those conditions must, in our view, be taken into account when the Authority is determining whether it is satisfied of the matters in s 45(3)(c). This is because those conditions are an inherent part of the licence in question – see ss 10(2) and 11 of the Liquor Act. 4. For these reasons, and given the context of s 45 and the nature of the task to be performed by the Authority when considering licence and removal applications, the words "the business or activity to which the proposed licence relates" in s 45(3)(c) should be construed as referring to the business or activity which can be carried out, under the authority conferred by the specific licence (including any proposed conditions) applied for, at the premises to which that licence relates. 5. In our view, the Tribunal below did not err by misconstruing s 45(3)(c). It was correct to conclude that, on the proper construction of the words "the business or activity to which the proposed licence relates", the Authority was required to consider: 1. the nature of the actual activity or business to be carried out at the premises on the basis of what is permitted under the authority conferred by the proposed licence, including the proposed conditions referred to in order 3 of the Tribunal's orders; rather than: 1. the nature of the activity or business that could be carried out under a hotel licence generally. 1. As to the application of s 45(3)(c), the Authority submitted that it was common ground that "there was no development consent in force by which ALDI was permitted to operate a hotel at the premises [11 Zouch Street in Young]". In addition, the Tribunal below found that there was no development consent to build a hotel on the site of the ALDI supermarket in Young. As we understand it, the "hotel" referred to in these contexts was a "hotel" in common or ordinary usage – "a building in which accommodation and food, and alcoholic drinks are available". It was not referring to a "hotel" as defined in s 4(1) – "premises to which a hotel licence relates", which is the relevant definition. It follows that those factual findings are not determinative of whether the Tribunal could be satisfied of the matter in s 45(3)(c). 2. Conducting a retail packaged liquor business falls within the authority conferred by a hotel licence under s 14(1) of the Liquor Act. Provided the primary purpose of the packaged liquor business to be carried out on the licensed premises is and remains the sale of liquor by retail, the hotel primary purpose test in s 15(1) will be satisfied. Thus, a packaged liquor business can be the business or activity to which a hotel licence relates. 3. In this case, the business that could be carried out under the Licence, if the removal application was granted with the conditions in order 3, was only a retail packaged liquor business. The Tribunal (exercising the Authority's powers) was accordingly required to be satisfied that there was in force a development consent or approval to use the premises for the purpose of such a business, before it could grant Mr Auld's application. 4. For the reasons given below in relation to ground 4, we are of the view that the proposed licensed premises the subject of Mr Auld's removal application were the 33 sqm designated packaged liquor section of the ALDI store. In the light of the relevant, unchallenged findings of fact by the Tribunal below contained in [18] to [29] of its reasons, it was open to the Tribunal to conclude that the required consent and approval were in place for the use of the premises for the retail sale of packaged liquor. The Tribunal did not fall into error by concluding that it was satisfied of the matter in s 45(3)(c), as the Authority contended. 5. Accordingly, we reject the Authority's appeal based on grounds 2 and 3. Ground 4 – application of the hotel primary purpose test 1. The Authority's appeal ground 4 concerned the proper construction and application of the hotel primary purpose test in s 15(1). In particular, it was contended that the Tribunal below proceeded on the incorrect basis that the proposed licensed premises only comprised that part of the ALDI supermarket designated as the packaged liquor section, whereas in fact the licensed premises the subject of the application was the whole of 11 Zouch Street, Young. If that was correct, it was said that the test in s 15(1) could not be satisfied and, consequently, the removal application should have been rejected. Ground 4 – parties' submissions 1. As we understood them, the Authority's submissions in respect of ground 4 were to the following effect: 1. the hotel primary purpose test in s 15(1) required that the primary purpose of the business carried out on the licensed premises must at all times be the sale of liquor by retail; 2. the removal application indicated that the premises to be licensed if the application was approved were at 11 Zouch Street and not some more limited component of those premises; 3. while a hotel could be segmented, there was no warrant in the Liquor Act for segmenting premises licensed under a hotel licence into part licensed and part non-licensed. It was said that the "licence is for the premises". This position could be contrasted with s 30 which indicated that, at least with respect to packaged liquor licences, licensed premises could be segmented into an area where liquor sales were permitted and an area where liquor sales were not permitted; 4. thus, in the present case, the hotel primary purpose test could not be satisfied in respect of the premises, 11 Zouch Street, since the primary purpose of the business carried out there was a general supermarket, and not the sale of liquor by retail. 1. Mr Auld noted that this issue of whether the hotel primary purpose test could be satisfied in the present case, given the proposed licensed premises, was not raised at first instance. As a result of this, the reasoning of the Tribunal concerning this issue was truncated. 2. Mr Auld submitted that the premises to which the Licence would relate if the removal application was approved was not the whole of the ALDI store at 11 Zouch Street, as the Authority contended. The word "premises" in the Liquor Act was sufficiently broad to include part of a building. In the present case the licensed premises would be the 33 sqm liquor sales area referred to in the removal application and on the accompanying plan. This was said also to have been expressly accepted by the Authority. 3. Mr Auld submitted that the finding by the Tribunal below, at [21] of its reasons, puts that matter beyond dispute on this appeal. There the Tribunal said: "[t]here does not appear to be any dispute between the parties that the proposed licensed premises would comprise that part of the ALDI supermarket designated as the packaged liquor section with display shelving and a checkout area." 1. Mr Auld then submitted in effect that, once the licensed premises were correctly identified as the 33 sqm liquor sales area in the supermarket, there was no basis for concluding that the hotel primary purpose test could not have been satisfied. Ground 4 – consideration 1. At the outset it is necessary to address the precise nature of the Authority's appeal based on ground 4. Having regard to the terms of s 80(1) and (2) of the NCAT Act and the fact that the decision appealed from was an internally appealable decision, within s 32, but not an interlocutory decision, as defined in s 4(1), the Authority was entitled to appeal as of right on any question of law. If it sought to appeal on any other ground, leave to appeal would be required. The Authority did not apply for leave to appeal in respect of any of its grounds. Accordingly, the Authority's appeal based on ground 4 is limited to an appeal on a question of law. 2. In par 69 of its written submissions, however, the Authority apparently sought to challenge the finding that: "the proposed licensed premises would comprise that part of the ALDI supermarket designated as the packaged liquor section with display shelving and a checkout area". 1. The Authority submitted in substance that that finding, and the Tribunal's observation that such a finding was not apparently in dispute, were wrong and should not be accepted. It was submitted at par 70: "No concession to this effect was made by the Authority. … In any event, the Tribunal's observation was inconsistent with the terms of the application for removal. As noted … above, the licensed premises were specified to be 11 Zouch Street and not some more limited component of those premises. …" 1. This submission challenges a finding of fact by the Tribunal as to what were proposed to be the premises to which the Licence would relate if the removal application was granted. It does not relate to or raise a ground of appeal limited to a question of law. Since leave to appeal on a ground other than a question of law has not been sought, we reject this challenge to the finding of fact. Further, even if leave had been sought, we would not have granted leave, as the challenge to the finding was bound to fail. This was so for the following reasons: 1. in "Part 3 Proposed premises for the liquor licence" of Mr Auld's application for removal form, in addition to indicating that the address of the proposed premises was 11 Zouch Street Young, it was stated: "The proposed licensed premises will comprise an area of only some 33sqm and the fit out of the same will involve minor non-structural alterations…."; 1. In "Part 10 Other information we need" of that form, the applicant was instructed to attach: "- a plan of the proposed licensed premises The plan, preferably A4 size, must be to scale. The plan must show the proposed licensed area of the premises at the proposed new location. …"; 1. Annexure 14 to that form was the plan referred to in Part 10. A copy of plan is set out below. 1. The Authority in its written reasons for rejecting the application, given on 23 December 2016, wrote: "the licence will be used to operate a small packaged liquor facility [at par 3] … The scale of the Proposed Premises is 33 square metres … [at par 42]". 1. In addition, in the Schedule to its reasons of 23 December 2016, the Authority recorded what material was before the Authority in relation to Mr Auld's removal application. At par 19 of the Schedule, the Authority identified the plan reproduced above in the following terms: "Plan of the Proposed Premises highlighting in orange the proposed licensed area and clearly depicting the location of the entry barrier and exit door for this licensed area (provided as part of the Application material lodged on 16 June 2016)." 1. This material provides overwhelming support for the Tribunal's factual finding that the proposed licensed premises comprised only that part of the ALDI store designated as the packaged liquor section with display shelving and a checkout area, as well as the observation that there was no apparent dispute between Mr Auld and the Authority as to that matter. 1. Accordingly, we reject the part of ground 4 that seeks to challenge the Tribunal's factual finding as to what were the proposed licensed premises in this case. The remaining part of ground 4, as we understood the Authority's position, raises the question of law whether, on the proper construction of s 15 and other sections dealing with hotel licences in the Liquor Act, "the licensed premises" referred to in s 15: 1. can only be the whole of the building at a particular address; and 2. such premises cannot be segmented into part licensed and part non-licensed premises. 1. Section 15(1) establishes the "hotel primary purpose test" in the following terms: "(a) except as provided by section 15A [which is not presently relevant], the primary purpose of the business carried out on the licensed premises must at all times be the sale of liquor by retail, (b) the keeping or operation of gaming machines (as authorised under the Gaming Machines Act 2001) on the licensed premises must not detract unduly from the character of the hotel or from the enjoyment of persons using the hotel otherwise than for the purposes of gambling." 1. Under s 15(2), unless the hotel primary purpose test is complied with in relation to "the licensed premises", the authorisations conferred by s 14 do not apply. 2. We have explained above how the words "the actual hotel" and "the licensed premises to which the licence relates" in s 15(3) are to be construed and we do not repeat it here. It is sufficient to note that, on their proper construction, they do not support the Authority's position. 3. Section 4(1) defines "licensed premises" as "the premises to which a licence relates" and "hotel" as "the premises to which a hotel licence relates". Section 94 establishes how the premises to which a licence relates are to be identified. The boundaries of licensed premises are as specified by the Authority: 1. when the licence is granted by the Authority – s 94(1); or 2. when the boundaries of premises to which a licence relates are changed by the Authority – s 94(2). 1. It can be noted that s 94(5) prohibits the Authority from specifying or changing boundaries of any licensed premises "unless the Authority is of the opinion that any primary purpose requirement under this Act in relation to the licensed premises is or will be complied with". Other types of licence, in addition to hotel licences, have a primary purpose test under the Liquor Act – see, for example ss 22, 30, 33 in relation to on-premises, packaged liquor and producers' licences, respectively. 2. By operation of s 94, the premises to which any licence relates will be the premises with the boundaries as specified by the Authority under that section in respect of the licence in question. Thus, the precise boundaries of "the licensed premises" referred to in s 15 will be those established under s 94. 3. In the present case, it is beyond dispute that Mr Auld in his removal application was seeking to have the Authority specify the boundaries of the premises to which the Licence would relate so that they were the boundaries of the area shaded (or highlighted in orange) on the plan submitted with his removal application, being the plan referred to in par 19 of the Schedule to the Authority's reasons for decision of 23 December 2016. These boundaries delineated a 33 sqm area, designated as the packaged liquor section with display shelving and a checkout area, within the ALDI supermarket at 11 Zouch Street in Young. 4. There is no express wording in s 94 to the effect that the Authority cannot specify boundaries so that licensed premises comprise less than the whole of a building at any particular address or location. Apart from s 47G, no other provision of the Liquor Act contains any restriction on the Authority's ability to specify boundaries of licensed premises. Section 47G provides: "(1) During the freeze period, the Authority must not change the specified boundaries (as referred to in section 94) of subject premises to which this subsection applies if the Authority is satisfied that the change in the boundaries of the premises is likely to result in an increase in the patron capacity of the subject premises. (2) Subsection (1) applies to subject premises in respect of which any of the following types of licences is held: (a) hotel licence, (b) club licence, (c) on-premises licence, (d) packaged liquor licence, (e) producer/wholesaler licence. (3) Without limiting subsection (1), the specified boundaries of any licensed premises to which a producer/wholesaler licence relates (being a producer/wholesaler licence to which section 35 applies) must not, during the freeze period, be changed if the change would result in the licensed premises being situated in a prescribed precinct." 1. While s 47G does restrict the Authority's ability to change boundaries in certain limited circumstances, its provisions do not in any way suggest a legislative intention that the Authority should not be able to specify boundaries for licensed premises of less than the whole of a building at a particular address or location. 2. In addition, none of the provisions relating to hotel licences, which we have outlined and considered above, nor s 15 itself, suggests that the Authority's ability under s 94 to specify boundaries for the premises to which a hotel licence relates was intended to be limited to specifying boundaries for a whole building at a particular location or address. 3. Indeed, the definition of "premises" in s 4(1) points to the contrary conclusion, namely that the Authority can specify boundaries for licensed premises that are less than the whole of a building. Under the s 4(1) definition, "premises" includes a "building", "structure", "land" or "place", among other things. The generality of those terms, especially "place", is a powerful indication that the legislature did not intend to limit the Authority's ability to specify boundaries under s 94 so as to prevent it specifying boundaries for a place that was less than the whole of a particular building. 4. From the terms, scope and purpose of the Liquor Act, we cannot perceive any basis for implying a restriction or prohibition into s 94, either generally or specifically in relation to hotel licences, that the boundaries of premises must include a whole building at a particular address. In our view, such a restriction would hinder rather than promote the objects of the Liquor Act set out in s 3(1)(a) and (b). 5. For these reasons, it is proper to conclude that the Authority (and the Tribunal as provided for in s 63(2) of the ADR Act) had power to specify the boundaries of the premises to which the Licence would relate so that they were the boundaries of the 33 sqm area designated as the packaged liquor section with display shelving and a checkout area in the ALDI store in Young, as shown on the plan submitted with Mr Auld's removal application. 6. Thus, the proposed licensed premises should be taken to be limited in this case to the designated packaged liquor section of the ALDI store. On this basis, there was no impermissible segmenting of the proposed premises into licensed and non-licensed parts as the Authority submitted. 7. Accordingly, we reject the Authority's contention in ground 4 that the Tribunal proceeded on the incorrect basis that the proposed licensed premises the subject of the application was 11 Zouch Street in Young, rather than that part of the ALDI supermarket designed as the packaged liquor section. 8. Having rejected both the question of law and the factual challenge inherent in ground 4 for the reasons set out above, we dismiss the appeal to the extent that it is based on ground 4. Conclusion and orders 1. We have rejected each of the Authority's grounds of appeal. Accordingly, the appeal should be dismissed. 2. Mr Auld sought costs of the appeal. In this matter, whether costs should be awarded falls to be dealt with under s 60 of the NCAT Act which relevantly provides: "(1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. …" 1. We are satisfied that there are "special circumstances" in the present case potentially falling within s 60(3)(a) and (g) because the issues in grounds 1 and 4 could have been, but were not, raised at first instance. In addition, the Authority acknowledged, quite properly, that there would be adverse costs consequences for it if the Appeal Panel did permit these issues to be argued on appeal for the first time. The Authority was entitled to raise grounds 2 and 3, but these took up only a relatively small proportion of the submissions and time on appeal. In addition, we take into account that the Authority has been entirely unsuccessful on its substantive grounds of appeal. Given the significance of, and time spent on, grounds 1 and 4 and on the question of whether the Appeal Panel should permit them to be raised on appeal, we think the appropriate costs order is that the Authority pay 90% of Mr Auld's costs of and incidental to the appeal. 2. For the reasons set out above and in Appendix 1, the Appeal Panel orders: 1. The appeal is dismissed. 2. The appellant is to pay 90% of the respondent's costs of and incidental to the appeal as agreed or assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). Appendix 1 1. This appendix sets out our detailed reasons concerning whether the Authority should be allowed to raise on this appeal the points in grounds of appeal 1 and 4 even though they had not been raised at first instance. Should the points in grounds 1 and 4 be allowed to be raised on appeal – evidence and findings 1. The parties relied on the affidavits of Mr Harris and Ms Sims and additional documents, all of which went to whether it was appropriate to allow grounds 1 and 4 to be raised for the first time on appeal. 2. Neither Mr Harris nor Ms Sims was required for cross examination and no submission was made that the evidence of either of them should not be accepted. 3. We accept Mr Harris's evidence. He is the Property Director for the ALDI group of companies. One of those companies, ALDI Foods Pty Ltd, entered into an agreement in about January 2016 to purchase the Licence for $175,000. Before that time, Mr Harris was aware that applications had been granted by the Authority and its predecessor, the Licensing Court of New South Wales, allowing hotel licences (or hotelier's licences under the previous legislation) to be used solely for the retail sale of liquor for consumption away from the licensed premises. The ALDI group spent substantial sums in connection with the application to remove the Licence to the ALDI store in Young and the proceedings in the Tribunal at first instance. 4. Mr Harris also gave evidence that "ALDI has relied upon the previous actions and decisions of the [Authority] in making and prosecuting the hotel licence removal application". While Mr Auld, not ALDI, was the applicant, we accept, based on this evidence, that: 1. in causing and assisting Mr Auld to make and prosecute the application to remove the Licence to the ALDI store in Young, the relevant ALDI entities relied upon their understanding of the previous actions and decisions of the Authority; 2. that understanding included that there was no legal impediment to the Authority approving removal of a hotel licence to the liquor section of a supermarket to be used to authorise the retail sale of liquor for consumption off the premises. 1. The understanding of Mr Harris, and of the relevant ALDI entities, was that the Authority, and previously the Licensing Court, had, in some cases, allowed hotel licences to be used solely in respect of the retail sale of liquor for consumption off the premises. This understanding was supported by some documents in evidence before us. 2. We also note that the Authority's reasons for decision of 23 February 2016 in relation to its refusal of ALDI Foods Pty Ltd's application to remove a hotel licence from premises in Taree to a proposed ALDI store in Taree (the Taree Reasons) contained the following: "115. While the decision has not turned upon this aspect of the proposal the Authority records that it does not endorse, from a policy perspective the proposed use of a hotel licence for the purposes of running a new packaged liquor business. 116. The Authority considers it in the public interest in the due administration of the licensing scheme provided by the Act for licensed businesses to actually operate pursuant to the designated licence type that is provided by Parliament for the type of business in question. 117. While the Authority's decision to refuse the Application has not turned on the Applicant's proposed use of a hotel licence for the conduct of a packaged liquor business, the Authority does not consider it in the interests of promoting the balanced development of the liquor industry (an object in section 3(1)(b) of the Act) for a licence that was granted for one type of licensed business to be re-tasked for a substantially different type of licensed business." 1. Since Mr Harris was not cross examined and did not mention these reasons in his affidavit, it was not clear whether or not these views of the Authority were known to him. Nonetheless, it is evident that the Authority's views were disclosed to ALDI Foods Pty Ltd, through its solicitors, who were sent a copy of the reasons for decision under cover of the Authority's letter dated 23 February 2016. These were the same solicitors who have acted for Mr Auld in relation to the removal application the subject of the present proceedings. 2. It is important, however, not to misunderstand the views expressed by the Authority in the Taree Reasons, quoted above. They related to policy and public interest considerations and the objectives of the Liquor Act. They were not views concerning the powers of the Authority and whether it could validly allow a hotel licence to be removed to premises suitable only as a packaged liquor outlet or impose conditions on a hotel licence so as, in effect, to convert it into a packaged liquor licence. 3. During the hearing at first instance, the following exchange took place between the Tribunal and counsel for the Authority (at T134 ll 31-34): "[The Tribunal]: But you're not saying that the removal with conditions that are proposed is not contemplated by the Act. Mr [Emmett]: No. What I'm saying is that the – no, you're right. …". 1. As the Authority acknowledged, at par 56 of its written submissions, it did not, in the Tribunal below, expressly contend that it lacked power: 1. to grant an application under s 59 of the Liquor Act to remove a hotel licence to premises suitable only as a packaged liquor outlet; or 2. to impose conditions on the hotel licence being removed so as, in effect, to convert it to a packaged liquor licence. 1. Finally, Ms Sims's evidence, which we accept, established that she was the solicitor with the day to day carriage of the matter on behalf of the Authority, both at first instance and on appeal. Notwithstanding its views as to the policy and objectives of the Liquor Act, it was only following the publication of the Tribunal's decision in this matter on 30 January 2018 that the Authority received, for the first time, advice in respect of its relevant powers to grant a removal application. Should the points in grounds 1 and 4 be allowed to be raised on appeal – parties' submissions 1. Mr Auld contended that the Authority made a "conscious forensic decision" not to take in the Tribunal below the point now sought to be raised in grounds 1 and 4, and thus the Authority had "waived any entitlement to run that point on appeal: Truong v The Queen (2004) 223 CLR 122 at [110]". 2. Alternatively, it was submitted that the Appeal Panel should not allow the Authority to run on appeal the point concerning the Authority's power as a matter of discretion, given that: 1. it concerned a question which was not a pure question of law because it was based on contentious factual issues as to: what were the proposed "licensed premises"; the nature of the business to be carried out on those premises; whether those premises met the description of a "hotel"; and whether the primary purpose test in s 15 of the Liquor Act could be satisfied; 2. evidence or further evidence could have been adduced concerning those contentious factual issues, and thus the bar in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (1986) 162 CLR 1 at 8-9, among others, was attracted; 3. even if it were accepted that the question of law was held to turn only on facts either admitted or proved beyond controversy, the question could only be raised for the first time on appeal if the following requirements, set out for example in Rizhao Steel v Koolan Iron Ore (2012) 43 WAR 91 at [52]-[54], were met: 1. the circumstances must be "most exceptional"; and 2. raising the question on appeal would not occasion prejudice to the respondent; 1. a conscious forensic decision was made not to take the point below, and to allow it to be taken on appeal would offend the principles concerning finality in litigation and the nature of the adversarial process; and 2. there were no "public law considerations" that justify such a course. 1. The Authority submitted that, although the point had not been "put in terms at first instance", it was permissible to raise it for the first time on this appeal since the question was one purely of law or construction and the interests of justice favoured it being allowed to be raised. It was further submitted that there was no separate and additional limitation to the effect that new issues could only be raised on appeal if the circumstances were "most exceptional", even if such a limitation applied to the granting of special leave to appeal to the High Court or to applications to re-open. Should the points in grounds 1 and 4 be allowed to be raised on appeal – waiver argument 1. Mr Auld's contention that the Authority had waived any entitlement to run the lack of power point and any related issue should be rejected for at least three reasons. First, if the Authority (and the Tribunal, acting under s 63 of the ADR Act) lacked power to grant an application, then that lack of power could not be overcome by the Authority "waiving" any entitlement to argue it did not have power on review. "Waiver" is not an applicable legal concept in this context. Waiver occurs when an intentional act is done with knowledge and thereby a person abandons a right or privilege by acting in a manner inconsistent with that right or privilege – Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at [30]; [2013] HCA 46. The present case does not involve any right or privilege of the Authority that it can choose whether to take advantage of or not. Rather it concerns the extent of the statutory powers conferred on the Authority by the Liquor Act. 2. Secondly, reliance on the High Court's decision in Truong v The Queen (2004) 223 CLR 122 (Truong) at [110] is misguided. That case does not support the application of "waiver" in a case such as the present appeal. Nor is it otherwise analogous. Truong concerned whether convictions for kidnapping and murder should be set aside because the accused was extradited and surrendered to Australia in respect of the offences not of kidnapping and murder but of conspiracy to commit such crimes. Section 42(a)(i) of the Extradition Act 1988 (Cth) relevantly provided in substance that an extraditable person surrendered to Australia should not be tried for an offence other than the offence for which the person had been surrendered. The High Court held that s 42(a) did not operate to withdraw jurisdiction from a State court to try an accused. On arraignment, the accused in that case might have entered, under s 390A of the Crimes Act 1958 (Vic), a special plea based on federal law that the trial would contravene s 42(a)(i). He did not do so but simply pleaded not guilty. In those circumstances, it was held it was not open for him to seek to impeach any subsequent conviction on the basis of breach of s 42(a)(i). Specifically, Gummow, Hayne and Callinan JJ said at [110]: "It was with the arraignment that, in ordinary usage, the trial may be said to have commenced. Reference is made in the second paragraph of these reasons to s 390A and s 391 of the Crimes Act. It is not useful to use the term "waiver" in this context. The reasons why the point was not taken do not appear in the record. But there is no suggestion that the appellant was the victim of any malpractice in this regard. In the absence of such a plea and in the face of the pleading of the general issue by the plea of not guilty, the appellant's personal right derived from s 42 was spent." (footnote omitted) 1. Thirdly, the submission is predicated upon the factual proposition that the Authority "deliberately chose not to take" the lack of power point before the Tribunal. This is essentially the same as the contention that the Authority took a "conscious forensic decision" in that regard. Given the apparent assumption by the Authority that it did have power when it made its initial decision, and the fact that it did not receive advice concerning any lack of power until after the decision of the Tribunal at first instance, we do not think that it is correct to characterise what occurred at first instance as involving the Authority intentionally not raising its lack of power, even though it knew that it did not have power. It certainly could not be said, in our view, that the Authority engaged in "malpractice" as referred to in Truong. 2. Once the Authority received advice that it was at least arguable that it lacked power to grant the application in question, it was proper for the Authority to raise that point, even if this was for the first time on the appeal. The Authority should not be criticised for seeking to do so. Should the points in grounds 1 and 4 be allowed to be raised on appeal – Suttor v Gundowda Pty Ltd principles and related matters Principles applicable to new points raised in NCAT internal appeals 1. Appeals to the Appeal Panel against internally appealable decisions of the Tribunal are dealt with under s 80(2) and (3) of the NCAT Act which provide: "(2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances." 1. Under s 80(2), subject to granting leave when required by par (a) or (b), the Appeal Panel conducts, in effect, an appeal by way of rehearing. When dealing with appeals in accordance with s 80(3), the Appeal Panel conducts a new hearing, equivalent to an appeal by way of a hearing de novo. Since the Appeal Panel of the Tribunal has a choice whether to proceed under s 80(2) or (3), it has a degree of flexibility not usually available to Courts with appellate jurisdiction. 2. The present case was not one where the Appeal Panel has considered it appropriate to proceed under s 80(3). Accordingly, it is necessary to consider the issue of whether the Authority should be permitted to raise, in an appeal under s 80(2) by way of rehearing, the new point concerning the power of the Authority. 3. In relation to appeals by way of rehearing, in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 (Coulton), the majority of the High Court held, at 7-8, that: "To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at 438 ...". 1. In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 (Suttor) at 438, the High Court had formulated the position as follows: "The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. In Connecticut Fire Insurance Co. v. Kavanagh [(1892) AC 473], Lord Watson, delivering the judgment of the Privy Council, said, "When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate review is placed in a much less advantageous position than the courts below." [(1892) AC 473 at 480]" 1. This approach is not limited to a "court of last resort". The High Court has held that no distinction should be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal – Coulton at 8. Although the Appeal Panel is not an intermediate or ultimate court of appeal, in our view it makes a great deal of sense to apply substantially the same principles in appeals under s 80(2) of the NCAT Act, including for the reason given in Coulton at 7 (suitably adapted to the circumstances of the Tribunal): "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish." 1. A helpful summary statement of the relevant principles is also found in Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 (Moustakas) at 497, as follows: "More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. See Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; University of Wollongong v. Metwally (No.2) (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71; Coulton v. Holcombe (1986) 162 CLR 1, at pp 7-8; O'Brien v. Komesaroff (1982) 150 CLR 310, at p 319." 1. Mr Auld submitted, however, that, even if all the facts were established beyond controversy or the new point was one of construction or law, there were further requirements which must be satisfied before the point could be raised for the first time on appeal before the Appeal Panel. It was contended that: 1. there must in addition be "most exceptional circumstances"; and 2. allowing the new point to be raised must not occasion prejudice to the other party. 1. This contention was based on what the Western Australian Court of Appeal had said in Rizhao Steel v Koolan Iron Ore (2012) 43 WAR 91 (Rizhao) at [52]-[54] and the cases there cited. The Court in Rizhao held at [52]: "It is significant to note that the High Court has twice described the circumstances in which a party will be allowed to raise a new point on appeal as 'very exceptional'. Such a course will only be permitted if two requirements are met. First, the interests of justice must require determination of the new point. Second, there must be no prejudice to the party against whom the new point is taken." 1. The two High Court decisions referred to by the Western Australian Court of Appeal were University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 (Metwally) and Moustakas. On analysis, however, we do not think it is correct that there are such additional requirements in all cases in which the principle stated in Suttor, Coulton and Moustakas could apply. 2. It is true that in Metwally the High Court observed at 71 that: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." 1. Metwally, however, did not concern raising a new point on appeal, but rather an application to vary orders and hear new argument after an appeal had been determined. The majority of the High Court did quote the above statement from Metwally, in Coulton at 8, but Coulton was a case where the new point raised on appeal would have effectively required a new trial if it had been successful because further evidence would have been required. This is borne out by the majority's comment in Coulton at 11: "The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied." 1. In Moustakas, a majority of the High Court also referred to "very exceptional circumstances" when it held, at 498: "It is true that in [Maloney v. Commissioner for Railways (N.S.W.) (1978) 52 ALJR 291; 18 ALR 147] (at p 294; p 152 ALR) it was recognized that in "very exceptional cases" a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant. No exceptional circumstances arise in this case where the parties adopted the course which they took of their own choice. Moreover, it could hardly be said that a new trial could be held now, more than ten years after the accident, without prejudice to the defendant." 1. It can be seen, however, that Moustakas concerned the question of whether "the opportunity to assert the new case at another trial" should be granted. It was in that context that the High Court noted that, on appeal, formulating a case that the appellant omitted to put at trial was permitted only in "very exceptional cases". It was not in the context of a new point involving a question of law on the construction of a statute or on facts either admitted or proved beyond controversy being raised on appeal. 2. The New South Wales Court of Appeal has applied the "exceptional circumstances" principle in Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 (Yates). That case involved the trial of a matter that had been conducted without regard to two sets of amendments to the Workers' Compensation Act 1926 (NSW) that should have been applied. The first amendments, in 1987, had in effect abolished the appellant's common law right to recover damages for her injuries sustained after 30 June 1987. The second set of amendments, in 1989, reinstated a common law cause of action for the appellant's injuries sustained after 30 June 1987, but subject to significant qualifications on the entitlement to damages. The trial in that case occurred after the 1989 amendments became operative. The issue of the 1987 and 1989 amendments was first raised on appeal. Handley JA (with whom the other members of the Court of Appeal agreed) observed, at 356, that: "The issues under the 1989 Act have never been tried and could only be tried if a new trial were ordered in which the parties were able to call further evidence directed to the new and different issues arising under that legislation." 1. In considering what should be done, the Court noted the distinction between a new point, which an appellant seeks to raise on appeal, that is a "new trial point", and one that is a "verdict point". Handley JA continued at 356: "The new point which the appellant seeks to raise is therefore a new trial point and not a verdict point: compare Barnes v Aspray [1957] SR (NSW) 468; (1957) 74 WN (NSW) 303. A party is generally entitled, within the limits referred to in Suttor v Gundowda Pty Ltd, to take a new point of law on appeal where the point would entitle that party to a more favourable final judgment from the appellate court than that granted by the trial court: see Banbury v Bank of Montreal [1918] AC 626 and compare Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 379. However this is certainly not the case where the point, if successful, would require a new trial. In such a case the new point is necessarily one which can only be determined after further evidence of a kind that would not itself have justified the appellate court in ordering a new trial: see Wollongong Corporation v Cowan (1955) 93 CLR 435." 1. Since the point raised for the first time on appeal in Yates was a "new trial point", the Court said at 357 and later at 358: "[t]he question is whether the most exceptional circumstances of the present case oblige this Court to order a new trial. … … I am therefore driven to the conclusion that because the trial was not conducted according to law this is a most exceptional case which falls outside the general rule applied in Coulton v Holcombe. In my opinion this Court is bound to intervene and order a new trial limited to damages." 1. From the passage in Yates at 356, quoted above, it appears that if an appellant seeks to raise a new "verdict point", that is one which could be determined by the appellate Court without a new trial or contested evidence, there is no additional requirement for "most exceptional circumstances" if the matter otherwise falls within the limits laid down in Suttor. 2. To the extent that the Western Australian Court of Appeal in Rizhao at [52]-[54], adopted a wider or different proposition from that applied in Yates, we consider ourselves bound to follow the New South Wales Court of Appeal's decision. 3. There are, however, statements in the High Court in cases involving special leave to appeal in criminal matters, which refer to an appellant being permitted to raise a new point on appeal only in an "exceptional case". For example, in Giannarelli v The Queen (1983) 154 CLR 212 (Giannarelli), Gibbs CJ said at 221: "It is of course only in an exceptional case that this Court will give special leave to appeal from a decision of a Court of Criminal Appeal affirming a conviction when the point that the applicant seeks to raise in attacking the conviction was not taken either at the trial or in the Court of Criminal Appeal. However, the present case is exceptional, in that under the law the charge laid could never be proved." 1. This statement in Giannarelli was relied upon in similar situations in other cases, including by Gleeson CJ in Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 at [14] and [21]. The Chief Justice's reasons in Crampton at [15]-[20] turn significantly upon the particular nature of appeals in criminal matters. In Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 (Fingleton) at [135], Kirby J referred to Giannarelli as well as the passage quoted from Metwally above (Fingleton at [147]). The latter was given as an example of similar restraint shown in civil matters. 2. It should be noted that appeals and applications for leave to appeal in criminal matters in the High Court are not the same as civil appeals either by way of rehearing in intermediate appellate Courts or before the Appeal Panel under s 80(2) of the NCAT Act. Some of the distinctions and relevant cases are touched upon, for example, in Fingleton at [144]-[145]. 3. Nonetheless, it appears to us that, in those criminal appeals where leave was granted to raise new points when seeking leave to appeal, the High Court held that the circumstances were "exceptional" because there was no need for a new trial. The new points sought to be raised were "verdict points" not "new trial points", to adopt Handley JA's terminology. This is made clear, for example: 1. in Giannarelli, where Gibbs CJ said "the present case is exceptional, in that under the law the charge laid could never be proved" (at 221); and 2. in Crampton at [21], where Gleeson CJ said: "I regard the present case as exceptional, for substantially the same reason as the case of Giannarelli was regarded as exceptional. On the only charge on which he was convicted, the applicant had available to him a point of law which constituted a complete answer. The evidence relied upon by the prosecution demonstrated that he was not guilty of the offence charged. If the point had been taken at trial, the outcome could not possibly have been affected by any further evidence. The failure to take the point cannot have been deliberate." 1. Having regard to the authorities, we are of the view that, in cases where an appellant before the Appeal Panel seeks to raise a new point that can be determined without a new hearing or further evidence, there should be no additional requirement of "most exceptional circumstances". 2. As to prejudice to a respondent if an appellant is permitted to raise a new point on appeal, if that can be adequately addressed by an award of costs or in some other appropriate manner, then such prejudice should not stand in the way of permitting the new point to be raised. In this regard, we note that the Authority has accepted that, if it is permitted to raise its new point concerning its lack of power, there are likely to be adverse costs consequences for the Authority. 3. Mr Auld also made submissions concerning whether there were "public law considerations" that would support allowing the lack of power point to be raised for the first time on appeal. 4. In Coulton, Gibbs CJ, Wilson, Brennan and Dawson JJ identified certain "public law" considerations, which the Court of Appeal had relied on to justify allowing the new point to be raised before it for the first time. At 8, it was stated: "The Court [of Appeal] then examined three countervailing considerations which it believed to be special to the case. The first was that the new issue touches upon the public law of the State because it involves the interpretation of a public statute, the powers of a statutory commission and the conduct of statutory office holders. …" 1. The High Court did not reject the proposition that the fact that the new issue involved the interpretation of a public statute and the powers of a statutory body might weigh in favour of allowing the issue to be raised on appeal for the first time. However, the majority in Coulton held, at 9, that the new issue in that case did not in fact call for the interpretation of the statute. And, any lack of power depended not on whether the statute conferred power on the relevant body but on whether the body could have been satisfied of certain factual matters which would enliven the power. Thus, these public law considerations did not, in Coulton, tell in favour of allowing the new issue to be raised. In these circumstances, we think it appropriate to accept that if a new issue involves the interpretation of a statute of some public importance and the powers of a statutory body, this may, depending on the circumstances, weigh in favour of allowing the issue to be raised on appeal for the first time. 2. In summary, when dealing with appeals under s 80(2) of the NCAT Act, the Appeal Panel should apply the following principles, developed from the principles applied in appellate Courts dealing with appeals by way of rehearing: 1. A point that was not raised before the Tribunal at first instance should not be allowed to be raised on appeal when that point could possibly have been met by calling evidence below, unless there are most exceptional circumstances such that the interests of justice require a new hearing and the course can be taken without irremediable prejudice to the other party – Moustakas at 497, Yates at 357-8; 2. Where all the relevant facts have been admitted or established beyond controversy or the point is one of construction or law so that the Appeal Panel can properly determine the appeal without further evidence or a new hearing, then the Appeal Panel may entertain the point if it is expedient and in the interests of justice to do so – Suttor at 438, Moustakas at 498, O'Brien v Komesaroff (1982) 150 CLR 310 at 319; 3. The fact that a new point involves the interpretation of a public statute or the powers of a statutory body may, depending on the circumstances, weigh in favour of allowing it to be raised for the first time on appeal – Coulton at 8-9. 1. The same principles do not necessarily apply if the Appeal Panel determines that the grounds for the appeal warrant a new hearing, and proceeds to deal with the appeal as permitted under s 80(3) of the NCAT Act. Application of principles concerning new points in NCAT internal appeals 1. For the reasons set out above, we reject Mr Auld's submissions that, in every case where a new point is sought to be taken on appeal, this should only be permitted in "most exceptional circumstances" and if there is no prejudice to the other party. In our view, if the point sought to be taken is a "verdict point", that is one which can be decided by the Appeal Panel because all the facts have been established beyond controversy or where the point is one of construction or of law, then it can be raised for the first time on appeal even if there are no other "exceptional circumstances". In addition, prejudice to another party should not prevent the point being raised, provided any relevant prejudice can be adequately mitigated by an award of costs or in some other way. 2. Further, the Authority did not make a conscious forensic decision not to take the lack of power point at first instance. Accordingly, we reject Mr Auld's submissions based on that premise. 3. Mr Auld also submitted that the question of whether the Authority had power under s 59 of the Liquor Act to grant a removal application subject to the conditions in order 3 was not a pure question of construction or law but depended upon contentious factual issues. Those issues were said to include: the identification of the proposed "licensed premises"; the nature of the business to be carried out on those premises; whether those premises met the description of a "hotel"; and whether the primary purpose test in s 15 of the Liquor Act could be satisfied. Thus, it was said that "the bar" in Suttor and Coulton was attracted. In addition, Mr Auld contended that there were no "public law considerations" that justify allowing the Authority to raise the new points on appeal. 4. We do not accept these submissions. The new points were identified as those arising out of grounds 1 and 4, which have been set out in full above. 5. Ground 1 depended on the following two propositions concerning the powers of the Authority when dealing with an application to remove a hotel licence under s 59 of the Liquor Act: 1. the Authority has no power to grant a removal application that in form or substance converts a hotel licence into a packaged liquor licence; and 2. the Authority has no power to impose licence conditions which undermine the authorisation conferred by a hotel licence pursuant to s 14(1) of the Liquor Act. 1. In determining whether either of those propositions should be accepted, the Appeal Panel must consider what powers the Authority has, on the proper construction of s 59, in the context of the Liquor Act as a whole. That determination will not turn on the particular circumstances of the present matter. More specifically, for the purpose of determining the proper construction of s 59, it does not matter what the proposed "licensed premises" were in the present case, what the particular nature of the business to be carried out on those premises was, whether those premises met the description of a "hotel", or whether the primary purpose test in s 15 of the Liquor Act could be satisfied in this particular case. In our view, the points arising out of ground 1 are ones of construction or law. The Appeal Panel can properly determine the question of whether the Authority has power to approve a removal application of the type involved in the present case without further evidence or a new hearing in relevant regards. Ground 1 raises "verdict points" not "new trial points". 2. In addition, Mr Auld contended that, if the points had been raised at first instance, he could have taken a different approach to the proceedings, for example, by amending his application to the Authority so as to apply for a packaged liquor licence rather than for the removal of a hotel licence. While we accept that Mr Auld could have taken a different approach, there are two reasons why we do not believe that this is a sufficient reason to prevent the Authority from raising the points inherent in ground 1. 3. First, if the Authority does not have power to grant applications of the type made by Mr Auld, then a purported grant by the Tribunal, acting under s 63 of the ADR Act, in the present case would be a nullity. Not allowing the Authority to take the point on this appeal would, in all likelihood, necessitate further proceedings seeking declaratory or other relief to determine whether or not the Authority, and the Tribunal, had power to grant an application for removal of the type sought. 4. Secondly, Mr Auld may not be precluded from seeking to have his application to the Authority dealt with as an application for a packaged liquor licence even on appeal before the Appeal Panel. During the hearing before us, it was noted that the attachment to the CIS headed "Additional Information – Application and Community Impact Statement" contained, at par 3.8, the following: "Licence only to be exercised as a Packaged Liquor Licence 3.8 The applicant consents to conditions being imposed upon the removal which prevents the licence being removed to other premises or reactivated as a Hotel, only permits packaged liquor sales to be made pursuant to the licence, and which prevents any consumption of liquor on the licensed premises. This will ensure that the licence can no longer be exercised in the manner which was previously the case and which resulted in various adverse impacts and liquor-related assaults over the years." 1. In the light especially of the heading to par 3.8, and assuming (for the sake of argument) that the Authority could grant a packaged liquor licence application, the Appeal Panel enquired whether the Authority accepted that Mr Auld's removal application could be seen as effectively applying for a packaged liquor licence. The Authority accepted that, if there was power to grant a removal application of the type sought, the form of the application was sufficient to amount either to a request to convert the Licence to a packaged liquor licence or to keep the form of the Licence as a hotel licence but with conditions. Accordingly, Mr Auld would not be prevented from having his application dealt with by the Appeal Panel as, in substance, an application for a packaged liquor licence or for conversion of the Licence into a packaged liquor licence, if we allowed the Authority to pursue ground 1 but it was unsuccessful. Under s 81(1)(d) of the NCAT Act, the Appeal Panel can set aside a decision under appeal and substitute another decision. In so doing, the Appeal Panel may exercise all the functions conferred on the Tribunal at first instance – s 81(2) of the NCAT Act. Those functions include all of the functions that are conferred on the Authority by the Liquor Act – s 63 of the ADR Act. "Function" in the ADR Act includes a power or authority – s 4(1) of that Act. 2. Further and contrary to Mr Auld's submissions concerning public law considerations, these ground 1 points touch upon the public law of the State because they involve the interpretation of an important regulatory statute and the powers of the relevant statutory authority. It is in the public interest that liquor licensing in New South Wales be lawfully and efficiently administered. To this end, it is important to clarify the nature and extent of the Authority's powers under s 59. 3. The public law considerations, along with the absence of prejudice that could not be cured by a costs order in this matter, establishes that it is expedient and in the interests of justice to allow the Authority to pursue ground 1 on this appeal. 4. Accordingly, we do not accept that the Authority should be denied the opportunity to raise on appeal the points inherent in ground 1, even though they were not argued at first instance. 5. Ground 4 raised the point as to whether the Tribunal erred in its application of the hotel primary purpose test in s 15 of the Act by proceeding on the incorrect basis that the proposed licensed premises only comprised that part of the ALDI supermarket designed as the packaged liquor section, whereas in fact the licensed premises the subject of the application was the whole of ALDI supermarket in Young. 6. By seeking to pursue ground 4, the Authority could be seen as taking a position contrary to the position it adopted in the Tribunal at first instance. At [21] in its reasons for decision, the Tribunal below recorded: "There does not appear to be any dispute between the parties that the proposed licensed premises would comprise that part of the ALDI supermarket designated as the packaged liquor section with display shelving and a checkout area." 1. This observation by the Tribunal is supported by the statement in Part 3 of the removal application form that "the proposed licensed premises will comprise an area of only some 33sqm" quoted in full above. 2. If ground 4 does not seek to challenge the factual proposition that the proposed licensed premises were only the 33 sqm designated packaged liquor section of the ALDI store and only raises an argument as to the proper construction of the Liquor Act, it appears to us to be a "verdict point" not a "new trial point". 3. Taking this approach to ground 4, it will not turn upon any disputed factual matters. It will be limited, in effect, to the proper construction of the words "licensed premises" and "premises" in ss 15 and 45(3)(c) in the context of the Liquor Act. In addition, determining this limited point can also be seen as having some public significance in that it could affect the general operation of the liquor licensing system in New South Wales. We do not believe that there is any substantial prejudice to Mr Auld beyond what might be mitigated by an order for costs. 4. Accordingly, we are of the view that it is expedient and in the interests of justice to allow the Authority to pursue ground 4 on this appeal, to the limited extent set out above. ********** 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 27 July 2018 - Grammatical error corrected at paragraph 190 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2018