Darjilla Pty Ltd trading as Corowa Supa IGA v Annamneni

1. [1]

   In April 2024, as the result of orders made by the New South Wales Civil and Administrative Tribunal, Mr Annamneni was granted a packaged liquor licence for premises at which the business known as the “South Corowa General Store” is conducted on Hume Street, Corowa NSW: Annamneni v Independent Liquor & Gaming Authority [2024] NSWCATAD 106. Senior Member Little setting aside the Independent Liquor & Gaming Authority’s August 2023 refusal of his application for the packaged liquor licence under s 45 of the Liquor Act 2007 (NSW): Administrative Decisions Review Act 1997 (NSW), s 63.

2. [2]

   IGA made a submission to the Authority opposing the grant of the licence Mr Annamneni sought, but it was not a party to the NCAT proceedings. Despite this, IGA belatedly pursues judicial review of NCAT’s decision, seeking orders quashing the decision and a declaration that no packaged liquor licence can be granted for the premises, that being contrary to s 31(2) of the Liquor Act: Supreme Court Act 1970 (NSW), s 69.

3. [3]

   IGA contends that NCAT’s decision was invalid because of jurisdictional error, the Senior Member having failed to consider or apply the mandatory requirements of s 31(2) of the Liquor Act: Minister for Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39; [1986] HCA 40.

4. [4]

   That is disputed by Mr Annamneni, who also challenges IGA’s standing to bring the proceedings and opposes it being granted the extension of time it requires to bring these proceedings, given that it did not bring them within time.

5. [5]

   NCAT and the Gaming Authority have both filed submitting appearances.

Conclusions

1. [6]

   While I have concluded that IGA does have standing and should have the extension of time that it requires, I am satisfied that its application must be refused.

Issues

1. [7]

   There was no issue that IGA needs the extension of time it sought, not having brought the proceedings within time, and that the Court has power to grant it.

2. [8]

   In issue between the parties was:

   1. (1)

      IGA’s standing to bring the proceedings, which is for it to establish;

   2. (2)

      Whether it should be granted an extension of time;

   3. (3)

      The proper construction of s 31 of the Liquor Act; and

   4. (4)

      What relief can be granted, if IGA succeeds.

Standing

1. [9]

   It is for IGA to establish that it has the disputed standing. To do so it relied on its interest in the proper construction of s 31(2) of the Liquor Act, which it claimed was more than that held by members of the public, given its own operation of a licensed packaged liquor store in the locality.

2. [10]

   In Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394; [2014] HCA 50, what had to be established was that Argos was a person aggrieved for the purposes of the legislative scheme there in issue. It was held that it was sufficient for it to establish that it would suffer a not insignificant loss of profitability in its business: at 409 [40]. Or that they had an interest different from that of an ordinary member of the public: at 423 [91].

3. [11]

   That Mr Annamneni and IGA are commercial competitors was, however, disputed. Even though their businesses are both located at Corowa, some two kilometre distance from each other.

4. [12]

   The evidence does not establish that the IGA store has suffered any loss of profits since the grant of the disputed licence to Mr Annamneni, some 20 months before the hearing. It is located in the township, where some other businesses are also licensed to sell take-away liquor.

5. [13]

   In his 2025 affidavit Mr Waldron, the manager of the Corowa IGA, said that there had not then been sufficient time to determine the actual impact of the challenged licence on its business. By the time of the hearing of this application, there was still no evidence that the grant of the licence has caused IGA any loss or other adverse impact. No loss of profit was thus established by the evidence IGA led.

6. [14]

   Still, given its business and the licence it has, that IGA does have an interest in the operation of s 31 of the Liquor Act, different to that of ordinary members of the public, should be accepted. That according with the submission it made in relation to Mr Annamneni’s application to the Authority, under s 44 of the Liquor Act.

7. [15]

   That, I consider, is sufficient to establish that it had a real interest in the subject matter of these proceedings: Forestry Corporation of New South Wales v South East Forest Rescue Incorporated [2025] HCA 15 at [8]; (2025) 422 ALR 358. Despite it not having pursued its interest, by seeking to be heard about its objection before NCAT.

8. [16]

   It follows that it must be accepted that IGA has the required standing to bring these proceedings.

Extension of time

1. [17]

   Whether a just basis for the grant of the extension of time that IGA requires has been established, also has to be resolved. That time having expired in July 2024 and these proceedings not having been brought until April 2025.

2. [18]

   Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) imposes a time limit of three months for the commencement of judicial review proceedings such as this. It also gives the Court a discretion to extend that time. Rule 59.10(3) specifies that factors to be taken into account include:

3. [19]

   Relevant matters on an application for extension of time were explained in Cameron v Woollahra Municipal Council (2024) 115 NSWLR 239; [2024] NSWCA 216 at [72] to be:

4. [20]

   What IGA has to establish is both a sufficient explanation for the delay and that it is in the interests of justice to grant the extension: Clancy v Director of Public Prosecutions [2018] NSWCA 102 at [7].

5. [21]

   What IGA relied on included that Mr Waldron was a sole commercial trader, trading in the market into which Mr Annamneni’s unlawful licensed operation had sprung. That having had an impact which he had to deal with at a time when his licensing consultant was incapacitated by serious ill health. It also being relevant that what IGA pursued was jurisdictional error.

6. [22]

   Mr Waldron revealed that on about 13 May 2024, he had become aware of NCAT’s challenged decision. He then instructed a liquor licence consultant to commence investigations and, on 24 May, also retained solicitors. What they investigated presumably resulted in the swearing of affidavits which IGA relied on in these proceedings. The consultant fell seriously ill in June and did not return to work until November, when Mr Waldron said he was preoccupied with IGA’s busiest trading period.

7. [23]

   The investigations were only completed in February 2025. But still the proceedings were only commenced on 17 April 2025, after advice was provided by counsel.

8. [24]

   Mr Annamneni opposed the grant of the extension in those circumstances. Contending that the explanations for the delay were inadequate and insufficient, including because:

9. [25]

   That Mr Annamneni would be caused prejudice if the extension was granted must be accepted. His evidence established that capital works necessitated by the grant of the liquor licence having been carried out. They involved installing a new liquor area, renovating the building and undertaking internal repairs and improvements, in order to comply with the conditions imposed. They having been completed by June 2024, at a cost of some $310,000.

10. [26]

    The costs having been incurred by Yea Fuels Pty Ltd, the owner of the premises and operator of the store, of which Mr Annamneni is the sole director, secretary and shareholder.

11. [27]

    That IGA, in reality, has no real interest in the grant of the licence, it having had no discernible adverse effect on its operation, explains why these proceedings were commenced only in April 2025. That they were brought some nine months out of time supporting that conclusion.

12. [28]

    In Dyason v Butterworth [2015] NSWCA 52, however, it was concluded that the most significant factor in acceding to an application for leave after a delay of some seven months was that the applicant had “a clearly arguable case that both the District Court and Local Court decisions were affected by jurisdictional error”: at [66].

13. [29]

    Here IGA pursues an alleged failure to adhere to mandatory requirements of s 31 of the Liquor Act, given its proper construction. That, I am persuaded, does sway the exercise of the discretion to extend time, despite the inadequate explanation for the delay, even though I have been persuaded that jurisdictional error was not established.

The claimed jurisdictional error is not established

1. [30]

   The conclusion that the claimed jurisdictional error has not been established is driven by both what s 63 of the Administrative Decisions Review Act required NCAT to do and the proper construction of s 31 of the Liquor Act.

2. [31]

   On the review of the Authority’s decision, s 63 of the Administrative Decisions Review Act required NCAT to exercise the Authority’s functions under the Liquor Act in respect of Mr Annamneni’s application. By deciding what the correct and preferable decision was having regard to the material then before it, including:

3. [32]

   That involved a review de novo: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [73].

4. [33]

   The Authority’s function had been to consider Mr Annamneni’s application for a packaged liquor licence, the submissions and factual material it had received, and then to grant or refuse to grant the licence, whether or not the Secretary had provided a report in relation to it: Liquor Act, s 45(1). Section 45(3) precluding the Authority granting the licence unless satisfied that:

5. [34]

   On the review, NCAT had the power to exercise all of the Authority’s functions: Administrative Decisions Review Act, s 63(2). Its powers thus included the grant of the packaged liquor licences, that being regulated by s 31 of the Liquor Act, which provided:

6. [35]

   The material before NCAT included the factual material the Authority had to consider, as well as the submissions which both the Authority and NCAT had received. NCAT did not receive any further submissions from IGA to consider and it had not provided the Authority with any factual material, to support its bare submission that the premises were a take-away food shop. A view which the Authority did not share.

7. [36]

   NCAT had to resolve what the parties who appeared joined issue over on the review, in order to arrive at the correct and preferable decision regarding what Mr Annamneni pursued against the Authority’s refusal. The Authority resisting his application on limited grounds, which did not include that the premises were a take-away food shop.

8. [37]

   Mr Annamneni’s case was explained before NCAT by written submissions referring to those he had advanced before the Authority, which were also before NCAT. As was the evidence which the Authority and NCAT both had to consider.

9. [38]

   Mr Annamneni there having explained why it would be accepted that the evidence he provided established that the premises fell within the s 31(3) definition of general store, rather than that of a take-away food shop. The factual material he had led about what was sold at the premises, having to be considered in light of the relevant statutory definitions in s 31 of the Liquor Act. That having persuaded the Authority that the premises were a general store, to which the restrictions imposed by s 31(1) applied.

10. [39]

    In these proceedings IGA contended that the reasons NCAT gave for its decision established jurisdictional error of the kind dealt with in Minister for Aboriginal Affairs v Peko-Wallsend at 39. On its case, s 31(2) having imposed a mandatory consideration, not complied with by NCAT by its mere acceptance of the description of Mr Annamneni’s premises as a “general store”.

11. [40]

    That the required consideration was not given to s 31(2) also being established by the reasons NCAT gave for the challenged decision. There, when s 31 was quoted at [3], s 31(2) not having been quoted. No other reference having been made to that prohibition elsewhere in the reasons given, established NCAT’s failure to give the required attention to the mandatory consideration it imposed.

12. [41]

    Mr Annamneni disputed this, relying on the evidence and case he had advanced before the Authority; the nature of the challenge to its decision which he pursued before NCAT; the matters over which issue was joined before NCAT by the parties to those proceedings; and the explanation given by NCAT as to why it was s 31(1), not s 31(2), on which what was in issue before it turned.

13. [42]

    That all establishing that NCAT had complied with the restrictions imposed by s 31 on the grant of a packaged liquor licence.

14. [43]

    The evidence having established that his premises fell within the definition of “general store” in s 31(3). With the result that it was the restriction imposed by s 31(1) which arose to be considered by NCAT. The parties then joining issue over the proper construction of s 31(1), particularly the words “neighbourhood” and “reasonably available” in s 31(1)(a).

15. [44]

    That explaining why NCAT had not been obliged to consider the restriction imposed on the grant of a packaged liquor licence “for premises comprising a service station or take-away food shop” imposed by s 31(2).

16. [45]

    The result of the cases, so advanced, was that what was in issue on this judicial review application turned on the proper construction of s 31 of the Liquor Act, and what it required of NCAT on the review of the Authority’s decision which Mr Annamneni had pursued. That having been regulated by s 63 of the Administrative Decisions Review Act.

17. [46]

    The review application before NCAT having turned on what the Authority then put in issue about the location of the premises and the packaged liquor licence already held by the local golf club, which had premises in the neighbourhood. And whether, the premises being a general store, s 31(1) of the Liquor Act precluded Mr Annamneni’s review application from succeeding.

18. [47]

    The Authority having accepted, on the evidence it had to consider, that Mr Annamneni’s premises did not fall within the definition of “take-away food shop” in s 31(3), which would have required consideration to have been given to the restriction imposed by s 31(2), rather than that imposed by s 31(1).

19. [48]

    What was not in dispute in the NCAT review was thus identified at [9] to be:

    1. (1)

       the General Store is a “general store” within the meaning of s 31(3) of the Act;

    2. (2)

       the Corowa Golf Club (the Golf Club) is within the neighbourhood of the General Store; and

    3. (3)

       the grant of the Licence Application would not encourage drink-driving or other liquor-related harm.

20. [49]

    This explained the questions which the Tribunal had to decide, identified at [10] of the reasons to be:

    1. (1)

       Whether the “neighbourhood” for the purposes of s 31(1) is “South Corowa” as contended by the Applicant or “Corowa”, which is a larger area incorporating the township, as contended by the Respondent (the Question of Neighbourhood):

    2. (2)

       Whether the take-away liquor service at the Golf Club is “reasonably available to the public” for the purposes of s 31(1) of the Act (the Question of Reasonable Availability):

21. [50]

    This explanation of what was in issue reflecting that the s 31(2) prohibition on granting a liquor licence for premises comprising a service station or take-away food shop, did not arise for consideration before NCAT, on the undisputed evidence.

22. [51]

    This explains what was said at [18] of the Tribunal’s reasons, that “Section 31 is a mandatory provision. When this provision is engaged, the agency must refuse to grant the licence application unless the agency is satisfied that the criteria in s 31(1)(a) and (b) are met. Once it finds that a mandatory ground for refusal applies, the Tribunal has no residual discretion and is required to refuse to grant the application.”

23. [52]

    That also explains why the matters dealt with in s 31(2), which is also mandatory if it is attracted, did not arise to be dealt with by NCAT on Mr Annamneni’s review application. Given the evidence and what the Authority had then put in issue as a result.

24. [53]

    The circumstances which arise for consideration, I am satisfied, must result in the conclusion that the case IGA pressed cannot be accepted.

25. [54]

    Given the evidence the Authority had to consider, understandably before NCAT, it accepted that the premises fell within the definition of a general store in s 31(3). Mr Annamneni having disclosed the nature of the sales made at the premises. And there being no evidence which had supported IGA’s bare submission to the Authority that the premises were a take-away food shop.

26. [55]

    Nor was evidence or submissions advanced before NCAT to establish that the premises were a take-away food store, which attracted the restrictions imposed by s 31(2). With the result that this was not a factual or legal issue which arose for it to determine, given its statutory task.

27. [56]

    NCAT had to determine the correct and preferable decision about the application Mr Annamneni had made under s 45 of the Liquor Act. It is thus conceivable that it could have not accepted the parties’ common position that the premises were a general store. But nothing to which IGA pointed provided a basis on which NCAT could have arrived at such a conclusion, given what it had to consider.

28. [57]

    The evidence establishes that what was not explained by the reasons NCAT gave, was the case that Mr Annamneni had advanced before it by his written and oral submissions. He then relying, as he was entitled to, on the evidence he had led before the Authority, and the submissions which he then pursued, which drove its acceptance that the premises were a “general store”.

29. [58]

    That was no doubt why the Authority did not join issue over the premises falling into the s 31(3) definition of general store before NCAT. With the result that it directed its attention to what was in dispute about the application, given the restrictions imposed by s 31(1).

30. [59]

    The evidence Mr Annamneni had provided the Authority included information about sales in the 2021-22 financial year. It showed that general store goods had made up 86.52% of sales at the premises, take-away food only 10% and fuel 4.35%.

31. [60]

    That establishing that the premises were not primarily being used for the preparation and sale of food, as the definition of take-away food shop required. Or for the fuelling of motor vehicles involving the sale by retail of petrol, oil or other petroleum products, as the definition of “service station” required. To which the restrictions in s 31(2) also applied.

32. [61]

    Mr Annamneni relied on this evidence to submit to the Authority that the premises fell within the definition of a general store. As a result, s 31(1) was engaged and s 31(2) did not arise to be considered. As Mr Annamneni also submitted orally at the NCAT hearing. That was not put in issue by the Authority, although this was also not explained in the reasons which the Senior Member gave.

33. [62]

    But the case, so advanced, does explain why the Senior Member observed at [9] of the reasons that it was not then in issue that the premises were a “general store”, within the meaning of s 31(3). This also explains why he accepted that the prohibition in s 31(2) was not engaged, although that was also not articulated.

34. [63]

    It follows that the Senior Member could have given a better explanation of the cases advanced on the evidence and what the parties joined issue over. They having accepted that the evidence did establish that the premises were a general store. Which he accepted, with the result that the s 31(2) prohibition was not engaged.

35. [64]

    But in resolving what is in issue about the claimed jurisdictional error, it must be remembered that what a Tribunal has to disclose in the reasons given is what led to the opinion formed and the path of reasoning by which it was actually arrived at: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [48]. On judicial review such as this, the reasons given by a Tribunal may not be approached with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2; [1996] HCA 6.

36. [65]

    Still IGA contended that what the reasons disclosed established NCAT’s failure to consider the mandatory requirements of s 31(2).

37. [66]

    It may be accepted that there can be circumstances where the failure to give reasons supports an inference that the decision-maker had no good reason: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 663-664; [1986] HCA 7.

38. [67]

    But I am satisfied that this not such a case.

39. [68]

    On a review of a decision of the Authority, such as that which the Senior Member had to deal with, he was entitled to take into account not only the factual material which the Authority had to consider and the submissions then advanced before it. But also what the parties agreed and advanced in the cases which they pressed before NCAT as a result, in order to resolve what was in issue on the review application.

40. [69]

    The obligation being to explain the path of reasoning by which NCAT resolved those issues. In this case, what was in issue being whether the requirements of s 31(1) precluded the grant of Mr Annamneni’s application, the parties having agreed that the evidence established that s 31(2) was not engaged, the premises falling within the definition of general store, which attracted the restrictions imposed by s 31(1).

41. [70]

    The reasons given explained the Tribunal’s conclusion that the premises fell within the definition of general store. That precluded them from falling into the definition of a take-away food shop. As was accepted by IGA in submissions in reply, ss 31(1) and 31(2) were mutually exclusive. The premises could not fall within both.

42. [71]

    The result was that s 31(2) was not engaged. The evidence having established that the premises fell within the definition of “general store”. With the result, contrary to IGA’s case, that its requirements did not have to be considered on the NCAT review. Despite the mandatory terms in which it is also couched. Like the Authority, the Senior Member plainly also having been persuaded by the evidence relied on, that the premises did fall within the definition of “general store”.

43. [72]

    It may be accepted that a better explanation could have been given for why the Senior Member accepted that s 31(2) had no work to do in respect of Mr Annamneni’s application, as I consider it is apparent that he did.

44. [73]

    But it must be accepted that the material on which Mr Annamneni relied before the Authority, which neither it nor IGA challenged before NCAT, did establish, as the parties to those proceedings agreed, that the premises were a general store.

45. [74]

    That explaining why IGA’s unsupported objection to the Authority, that they were a take-away food shop, had not been accepted. It was not pressed before NCAT. With the result that what the Senior Member had to resolve did not include any issue concerning the restrictions imposed by s 31(2).

46. [75]

    The alleged failure to engage in what IGA claimed in these proceedings to be an intellectual exercise required by s 31, cannot be accepted. The proper construction of s 31, the cases advanced before NCAT and what the material it had to consider had established, cannot permit IGA’s case, so advanced, to be accepted.

47. [76]

    The parties to the NCAT proceedings, as well as the Tribunal, were entitled to proceed as they did. The parties concentrating their submissions on what they joined issue over and NCAT resolving those issues, having accepted what the parties to the proceedings had agreed about the nature of the premises, given what the evidence established.

48. [77]

    It follows that it cannot be concluded in these judicial review proceedings that the prohibition s 31(2) imposed, which was not raised by the material or the cases NCAT had to consider, established the claimed jurisdictional error.

49. [78]

    Before NCAT, it understandably not having been contended that the premises were either a service station or take-away food shop as defined in s 31(3), given the evidence which had to be considered. Rather, it was accepted that the evidence established that it was a general store. NCAT having to decide the review on the evidence before the Authority and the cases advanced before it, there was no available factual basis on which it could have rejected the parties’ common view that the premises were not a take-away food shop.

50. [79]

    On a judicial review application such as this, the proceedings are concerned with the correction of error, and not a merits review, the re-exercise of NCAT’s functions or a discernment of the current nature of the premises, as IGA’s case seeks. It now being long after NCAT made its decision. It follows that IGA’s case cannot succeed.

51. [80]

    How the position may have altered since the NCAT decision was given is irrelevant to this judicial review application. As is what the evidence might have established, had IGA advanced information it sought to rely on in these proceedings, either before the Authority or at the NCAT review. When, on its approach, it had a right to be heard, which it did not exercise.

52. [81]

    IGA had an opportunity to advance an evidentiary basis for its contention that the premises were a take-away food shop, both before the Authority and NCAT. Why it did not avail itself of that opportunity is irrelevant to the resolution of what it is entitled to pursue in these proceedings.

The evidence claimed to establish that the premises are a take-away food shop as defined in s 31(3)

1. [82]

   In the event that I am wrong in these conclusions, I will also deal with the evidence which IGA claimed established that Mr Annamneni’s premises fell within the s 31(3) definition of take-away food shop. Neither having been advanced either before the Authority, or NCAT.

2. [83]

   IGA had gathered evidence which was not before NCAT, after its decision was given, in order to establish what the position then was. It then having obtained menus, as well as sales information from 2022 to 2024. Its admissibility was in issue, with the result that it was received provisionally.

3. [84]

   It was also only in these proceedings that IGA advanced an analysis of the material Mr Annamneni had relied on before the Authority and NCAT which was also disputed, to submit that this also established that the premises did attract the s 31(2) restriction.

4. [85]

   IGA’s approach rested on the number of items sold, which I am not satisfied was relevant or established by the evidence advanced by Mr Annamneni. IGA also disputed the relevance of the sales on which Mr Annamneni had successfully relied, contending it was the number of items sold — not the percentage of the types of sales made, on which Mr Annamneni relied — which established that the premises then fell within the take-away food shop definition. I am not satisfied that this can be accepted.

5. [86]

   I am also satisfied that the disputed evidence was not admissible.

6. [87]

   Only evidence that, “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings” being admissible: Evidence Act 1995 (NSW), s 55 and 56.

7. [88]

   It must be accepted that the factual position after NCAT gave its decision is not relevant, given how what it had to decide was regulated by s 63 of the Administrative Decisions Review Act, as I have explained. That has not been altered by the gathering of evidence after the decision, to support IGA’s pursuit of these proceedings. What was sold at the premises after the package license was given, not being relevant to what NCAT earlier had to decide, on the material before the Authority and it.

8. [89]

   It follows that even if what was sold at the premises changed after NCAT gave its decision, as IGA contended, that is irrelevant to the determination of these judicial review proceedings.

9. [90]

   That accords with the parties’ agreement in these proceedings, that the Liquor Act does not empower even the Authority to revisit the grant of a packaged liquor licence, in the event that circumstances alter after the grant of such a licence.

10. [91]

    With the result that even if the use made of the premises granted a licence does not continue to satisfy the definition on which the application of the restrictions on the grant of the packaged liquor licence imposed by s 31 turned, when the licence was granted, the grant of the licence cannot later be revisited.

11. [92]

    It follows that an attack on the licence granted by NCAT on judicial review, on the basis of circumstances which changed after it gave its decision, cannot be pursued in these proceedings, as IGA sought to do. With the result that the disputed evidence is not relevant, nor admissible.

12. [93]

    Even if I am wrong in that conclusion, I am not satisfied that the disputed evidence is capable of establishing that NCAT erred in accepting that the premises fell within the definition of general store. Or that this Court can make required factual findings, in relation to the claimed jurisdictional fact, as IGA also urged.

13. [94]

    Mr Annamneni’s contentions must thus be accepted.

14. [95]

    Even if it could be accepted that the evidence IGA gathered after NCAT’s decision established that the premises now trade as a take-away food shop, with the result that no packaged liquor licence could now be granted to it given the prohibition in s 31(2), if Mr Annamneni now made an application for a packaged licence, this judicial review application must be dismissed.

15. [96]

    As I will explain, given the proper construction of s 31 of the Liquor Act, I am also satisfied that the analysis of the material NCAT had to consider, which IGA also advanced in these proceedings, also cannot establish the claimed error in the relevant jurisdictional fact.

16. [97]

    The principles of statutory construction are well settled and require no long explanation.

17. [98]

    Shortly, the task of construction begins, as it ends, with the statutory text. It having, from beginning to end to be construed in context, with an understanding of context having utility “if, and in so far as, it assists in fixing the meaning of the statutory text” : Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22], quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39], referred to in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [37]. Further, integral to making a choice between a range of potential meanings, being discernment of the statutory purpose: SZTAL at [39].

18. [99]

    The construction of s 31 which IGA urged was not advanced before NCAT and was clearly not that on which the parties had reached their agreed position. Their approach, that primary use of the premises was established by the sales generated, was one which NCAT accepted. That having shown that relatively few sales had involved the sale of food.

19. [100]

    That the position later altered, the licence conditions having been complied with at considerable cost, as was Mr Annamneni’s case, does not provide a basis for the view that, at the time that NCAT was required to make the correct and preferable decision about his review application, it fell into jurisdictional error.

20. [101]

    Nor did the analysis advanced of the material Mr Annamneni relied on before NCAT, on the claimed basis of items sold at the premises.

21. [102]

    The s 31(3) definitions being concerned, as they are, with the use made of premises the subject of the application, not the number of items sold there:

22. [103]

    The Liquor Act does not specify how such use can be established, if it is disputed. But an analysis of sales, by reference to the various categories of what is sold at the premises, is an obvious approach, given the statutory emphasis on primary use, in the s 31(3) definitions.

23. [104]

    The definitions, couched as they are, it must be accepted do not accord with the primary use of premises depending on the number of various items sold there.

24. [105]

    That is logical, the definitions contemplating as they do, that particular premises can only attract either the restrictions imposed by s 31(1), or that imposed by s 31(2), not both. And the definitions contemplating that in the one premises, groceries, small items, food prepared for immediate consumption as well as petrol, oil and other petroleum products, can all be offered for sale.

25. [106]

    Businesses — being operated to make a profit as they are, without which they will fail — makes evidence of sales generated at the premises for which a licence is sought, a more reliable indicator of the primary purpose for which premises are being used. Than does the number of items of various categories which they sell. Revenue or profit which results, may also be relevant.

26. [107]

    If evidence established, for example, that fewer food items were prepared and sold for consumption away from the premises, but that they generated the substantial part of the revenue, the fact that a larger number of individual groceries or small items were also sold there would not establish that the premises were primarily being used for the retail sale of groceries and small items. As the definition of a general store requires.

27. [108]

    That is also supported by the general store definition attaching only to specified premises. Namely, a “convenience store, mixed business shop, corner shop or milk bar that has a retail floor area of not more than 240 square metres”. It applying to such premises only if they are “used primarily for the retail sale of groceries or associated small items.”

28. [109]

    It follows that if a convenience store, mixed business shop, corner shop or milk bar that has a retail floor area of not more than 240 square metres, was not primarily being used for the specified retail sales, the premises would not fall within the general store definition.

29. [110]

    This might, for example, be established by the larger part of the sales from such premises being the result of the “sale by retail of petrol, oil or other petroleum products”. In which case the premises would fall within the “service station” definition in s 31(3). Because that would establish that those premises are being “used primarily for the fuelling of motor vehicles”, despite the nature and size of the premises and that groceries, associated small items, or food are also sold there.

30. [111]

    If, by way of further contrast, such premises were used “for the preparation and sale of food for immediate consumption away from the premises (whether or not food is also consumed on the premises)”, with the result that the substantial part of the sales was generated by the sale of such food, that would establish what the premises are primarily used for that purpose. With the result that those premises would fall within the definition of take-away food shop, notwithstanding that groceries, associated items, petrol, oil or other petroleum products are also sold there.

31. [112]

    Contrary to the case IGA advanced, the definition of a take-away food shop is also not concerned at all with the sale of drinks or of other items apart from food at the premises. Nor is it concerned with the description of the business, or size of the premises, which the definition of a general store requires be satisfied.

32. [113]

    The definition of a take-away food shop turns only on the premises being primarily being used for “the preparation and sale of food for immediate consumption away from the premises (whether or not food is also consumed on the premises)”. If the premises are not so being used, they cannot fall within the definition.

33. [114]

    That premises are being so used, it follows, can thus be established by evidence which establishes that most sales involve the sale of “food for immediate consumption away from the premises”, as Mr Annamneni again successfully urged before the Authority and NCAT. No error in that approach has been established.

34. [115]

    It follows that it must be accepted that NCAT did not err in its approach to the requirements of the Liquor Act and what the material it had to consider established, when it undertook its review functions.

35. [116]

    NCAT was required to decide the review application on the material before the Authority and it, resolving what the parties joined issue over. IGA did not seek to advance the analysis of the evidence it relied on in this Court, when it made its submission to the Authority. Nor did it appear before NCAT to challenge the parties’ analysis of the requirements of the Act and what the material Mr Annamneni advanced established, to contend that the premises were not a general store, attracting the restrictions of s 31(1).

36. [117]

    On the evidence in these proceedings, had IGA done so, its case would have had to fail.

37. [118]

    In these proceedings, IGA has not established error in NCAT's approach or the conclusions which it arrived at on the material it had to consider, given its task and the proper construction of s 31 of the Liquor Act, as I have explained.

38. [119]

    It follows that IGA’s case must fail.

39. [120]

    Even if a different conclusion could be arrived at, the Court could not make factual findings in these proceedings, the declarations sought, or order that the application for the liquor licence be refused, as IGA sought. With the result that the matter would then have to be remitted.

40. [121]

    In the circumstances, given the application NCAT had to consider, I would not have been inclined to exercise any discretion in favour of IGA. It having delayed as it did and seemingly not having been adversely affected by the grant of the licence it so belatedly attempted to challenge.

41. [122]

    Given the conclusions I have reached, no remittal is, in any event, necessary.

Costs

1. [123]

   The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event: r 42. In this case, that is an order that IGA bear Mr Annamneni’s costs, as agreed or assessed.

2. [124]

   Unless the parties approach within 14 days with short written submissions seeking some other order, that will be the Court’s order.

Orders

1. [125]

   For the reasons given, I order that the application is dismissed;

2. [126]

   Unless the parties approach within 14 days with short written submissions seeking some other order, IGA is to bear Mr Annamneni’s costs, as agreed or assessed.