Auld v Independent Liquor and Gaming Authority (No. 2) [2017] NSWCATAD 339

Auld v Independent Liquor and Gaming Authority (No. 2) [2017] NSWCATAD 339

Section 13A(2) of the Gaming and Liquor Administration Act 2007 (NSW) must be given substantive effect. Properly construed with section 63 of the Administrative Decisions Review Act 1997 (NSW), it requires the Tribunal to determine the review on the basis of the materials before the primary decision-maker, while retaining a discretionary power to grant leave for fresh evidence. The Authority's construction would leave section 13A(2) with no sensible work to do, particularly in light of section 58(1)(b) of the Administrative Decisions Review Act 1997 (NSW). The additional material proposed by both parties could assist the Tribunal and leave should be granted.

Jurisdiction
Australia
Judgment Date
27 June 2017
Procedural Posture
Administrative Review of Refusal to Move a Liquor Licence / Notice of Motion Concerning Leave to Adduce Fresh Evidence
Outcome
Notice of Motion determined; fresh evidence restricted except with leave, and leave granted to both parties for specified evidence.
Legal Topics
['statutory Construction' 'administrative Review by Way of Rehearing' 'leave to Adduce Further Evidence' 'overall Social Impact of Liquor Licence Transfer']
['administrative Law' 'liquor Licensing'] ['statutory Construction' 'administrative Review by Way of Rehearing' 'leave to Adduce Further Evidence' 'overall Social Impact of Liquor Licence Transfer']

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Procedural Posture

Administrative Review of Refusal to Move a Liquor Licence / Notice of Motion Concerning Leave to Adduce Fresh Evidence

Legal Issues

  1. 1 ['Whether a review under section 13A of the Gaming and Liquor Administration Act 2007 (NSW) is to proceed on the material before the Authority unless leave is granted to adduce fresh evidence.' 'Whether the Applicant and Respondent should have leave to adduce further evidence not before the Authority when it made its determination.']

Ratio Decidendi

Section 13A(2) of the Gaming and Liquor Administration Act 2007 (NSW) must be given substantive effect. Properly construed with section 63 of the Administrative Decisions Review Act 1997 (NSW), it requires the Tribunal to determine the review on the basis of the materials before the primary decision-maker, while retaining a discretionary power to grant leave for fresh evidence. The Authority's construction would leave section 13A(2) with no sensible work to do, particularly in light of section 58(1)(b) of the Administrative Decisions Review Act 1997 (NSW). The additional material proposed by both parties could assist the Tribunal and leave should be granted.

Court Disposition

Notice of Motion determined; fresh evidence restricted except with leave, and leave granted to both parties for specified evidence.

Orders

  • ['No evidence is to be adduced in the proceedings which was not before the Respondent when the Respondent made its determination on or about 14 December 2016, except with the leave of the Tribunal.' "The Applicant has leave to adduce the evidence filed under cover of the Applicant's solicitor's letters dated 24...