Beutel & Anor v Commissioner for Liquor and Gaming Regulation & Anor [2026] QCAT 338

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beutel & Anor v Commissioner for Liquor and Gaming Regulation & Anor [2026] QCAT 338 PARTIES: DENNIS BEUTEL (First Applicant) AND WILDLIFE PRESERVATIONSOCIETY OF QUEENSLAND, FRASER COASTBRANCH INCORPORATED (Second Applicant) v COMMISSIONER FOR LIQUOR AND GAMING REGULATION (First Respondent) AND KILJOH PTY LTD (Second Respondent) APPLICATION NO/S: GAR 080-23 MATTER TYPE: General Review DELIVERED ON: 3 August 2026 HEARING DATE: 18 December 2025 HEARD AT: Brisbane DECISION OF: Member Alex Nelson ORDERS: 1. The answer to the “threshold question”, whether the decision of the First Respondent (Commissioner for the Office of Liquor and Gaming Regulation) to provisionally grant a Hotel Licence to the Second Respondent on 20 December 2022, was made in contravention of the requirements of s123 of the Liquor Act 1992 (Qld) in that no Development Approval has been given for the use of the land required by s12(1)(b); and/or was the decision made ultra vires is a. No, the First Respondent did not act in contravention of s123 of the Liquor Act; -- 1 of 11 -- 2 b. There was no development approval that had been given for the use of the land as required by s123(1)(b); c. Yes, in the absence of a development approval having in fact been given, the decision to grant a provisional hotel licence was made ultra vires. 2. By consent, the Application for Miscellaneous Matters filed on 17 February 2025 seeking a disclosure direction and a stay of proceeding pending disclosure, is dismissed. 3. The First Respondent is invited to reconsider its decision to provisionally grant a Hotel Licence to the Second Respondent on 20 December 2022. 4. A further Directions Hearing is be scheduled on a date to be advised with a view to making directions for the conduct of a final hearing. CATCHWORDS: ENVIRONMENT AND PLANNING – Where the First Respondent granted provisional approval for a Hotel Licence – Where the Applicant seeks a review of that decision – Where the parties sought the preliminary determination of a threshold question – Whether it is appropriate to determine the threshold question - Whether a Development Approval existed - Whether the First Respondent acted ultra vires Acts Interpretation Act 1954 (Qld), s 27A(6) Economic Development Act 2012 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9, s23(2), s24, s 114(b) Liquor Act 1992 (Qld) s61, s 107(4), s 123, s 123(1)(b), s123B Planning Act 2016 (Qld) Agius v Queensland Building and Construction Commission & Anor [2023] QCATA 148 ECX v Office of Fair Trading, Industry Licensing Unit [2016] QCAT 410 Murphy v Number One Quality Homes Pty Ltd [2021] QCATA 128 Number One Quality Homes Pty Ltd v Murphy & Anor [2020] QCAT 339 Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 Reef House property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121 -- 2 of 11 -- 3 APPEARANCES & REPRESENTATION: First Applicant: Mr Woods Second Respondent Mr Murdoch First Respondent: Ms Morgan of counsel Second Respondent Mr Delaney REASONS FOR DECISION [1] On 20 December 2022 the First Respondent granted a provisional Hotel Licence to the Second Respondent. The Applicants have applied for a review of that decision. [2] On 9 April 2024 the Tribunal invited the First Respondent to reconsider its decision and, having done so, on 21 June 2024 the First Respondent confirmed that decision. It remains, therefore, the original decision that is under review.1 [3] On 28 August 2025 the First Applicant filed an Application for Miscellaneous Matters seeking the “preliminary determination” of what is said to be a threshold question, later refined to be: whether the decision of the First Respondent (Commissioner for the Office of Liquor and Gaming Regulation), confirmed in the Reconsideration Decision of 21 June 2024 to provisionally grant a Hotel Licence to the Second Respondent on 20 December 2022, was made in contravention of the requirements of s123 of the Liquor Act 1992 (Qld) in that no Development Approval has been given for the use of the land required by s123(1)(b) and/or the decision was made ultra vires [4] The First and Second Applicants also sought, in the event that the above question is determined in the negative, that a direction be made pursuant to an earlier Application for Miscellaneous Matters filed on 17 February 2025 which sought disclosure of communications between the First Respondent and agents of the Second Respondent as well as a stay of the proceeding pending that disclosure being provided. [5] On 23 September 2025 directions were made by Senior Member Aughterson requiring the parties to file and serve their respective submissions in advance of the “preliminary determination” hearing. [6] The following submissions were filed and have been taken into account by the Tribunal: (a) First Applicant filed 9 October 2025; (b) Second Applicant filed 7 October 2025; (c) First Respondent filed 21 October 2025; (d) First Applicant Reply filed 28 October 2025; and 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23(3) -- 3 of 11 -- 4 (e) Second Applicant Reply filed 17 November 2025. [7] At the hearing on 18 December 2025, the Applicants consented to the alternate relief, in terms of the disclosure and stay orders that had been sought, being dismissed on the basis that since the filing of the Application they had been able to obtain that disclosure through a Right to Information process. [8] The Respondents did not oppose the Tribunal answering what had been described as the threshold question, but did consider that it was a question more properly determined at a final hearing given the complexity of factual issues that would need to be resolved in making a determination. [9] While there is no specific power for the Tribunal to make a preliminary determination on a separate or threshold question, it has the power to do so in an appropriate case where that would contribute the Tribunal’s achievement of the Objects or the Tribunal’s statutory functions under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). Those powers derive from: (a) s 3 of the QCAT Act which makes it an object of the Act to “deal with matters in a way that is accessible, fair, just, economical, informal and quick”; (b) s 4 of the QCAT Act which requires the Tribunal to: (b) encourage the early and economical resolution of disputes before the tribunal, including, if appropriate, through alternative dispute resolution processes; (c) ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice; (c) s 9 of the QCAT Act, “The tribunal may do all things necessary or convenient for exercising its jurisdiction”; and (d) s 114(b) of the QCAT Act, “The tribunal’s power to make a decision in a proceeding (the "primary power") includes a power (b) to make an ancillary order or direction the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.” [10] The principles that govern the circumstances in which an order for preliminary or separate determination of an issue or question might be made were set out in Reading Australia Pty Ltd v Australian Mutual Provident Society:2 (a) the term “question” in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an “issue” and a “question” is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an “issue”, and less decisive matters of dispute being “questions” (Landsal Pty Ltd (in liq) v REI Building Society (1993) 113 ALR 643 at 647); (b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties’ rights (Landsal Pty Ltd (in liq) v REI Building Society at 647); (c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed 2 (1999) 217 ALR 495 -- 4 of 11 -- 5 facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Co Ltd [1999] HCA 9 at para 45); (d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined (Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1970] AC 179 at 242-243 per Lord Pearson; Bass v Perpetual Trustee at para 53); (e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not “ripe” for separate and preliminary determination. An issue may not be “ripe” for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved (CBS Productions Pty Ltd v O’Neill per Kirby P at 606); (f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may – (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or (ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 607); (g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may - (i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research & Development Pty Ltd v The Commonwealth [1997] FCA 934; (ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding (GMB Research & Development Pty Ltd v The Commonwealth; Arnold v Attorney-General for Victoria [1995] FCA 727). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or (iii) prolong rather than shorten the litigation (GMB Research & Development Pty Ltd v The Commonwealth). [11] A preliminary issue was determined by this Tribunal in ECX v Office of Fair Trading, Industry Licensing Unit3 where the Chief Executive, Department of Justice & Attorney-General, Industry Licensing Unit had refused a tattoo operator’s licence under the Tattoo Parlours Act 2013 (Qld) and upon an Application for Review being made, the Tribunal was called upon to determine the preliminary issue of whether or 3 [2016] QCAT 410 -- 5 of 11 -- 6 not information that had been relied upon by the decision maker was properly categorised as ‘a criminal intelligence report or other criminal information’. That needed to be determined in advance because the Applicant did not know the nature or content of the evidence that the decision maker had withheld from disclosure on the basis that it was a criminal intelligence report. If it had been properly categorised as such, the Applicant was not entitled to be appraised of it. If it was wrongly classified, then the decision maker might withdraw it before the Tribunal conducted its rehearing. Early determination of the question was therefore necessary in order to advance the proceeding fairly. [12] This Tribunal refused to determine a “preliminary issue” in Number One Quality Homes Pty Ltd v Murphy & Anor.4 The question posed by the Murphys was whether or not they had validly withdrawn from their building contract and were thereby entitled to a refund of monies they had paid. They contended that it was a question of law only and, if resolved, it would bring an end to the litigation. [13] Senior Member Brown identified at [2]: “While the determination of a preliminary issue may result in savings in costs and delay, a separate determination should only be ordered if the utility, economy and fairness to the parties of a separate question is beyond issue”, citing Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [170]. [14] At [38], Senior Member Brown found that determination of the preliminary question involved questions of law, fact and statutory construction. Further, if resolved in the builder’s favour, it would require determination of the further question of whether an estoppel arose. At [56] it was said: “This of itself raises the very real prospect that the determination of the preliminary issue will give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of the final hearing and result in overlap between the evidence adduced on the hearing of the preliminary issue and at the final hearing. There is also the very real possibility that this will lead to the prolongation rather than the shortening of the proceedings.” [15] At [70] Senior Member Brown concluded that answering the preliminary question would likely give rise to further factual disputes, that the litigation would not be shortened or the cost to the parties minimised and declined to determine the preliminary issue. [16] That refusal was upheld on appeal; Murphy v Number One Quality Homes Pty Ltd.5 [17] In Agius v Queensland Building and Construction Commission & Anor6 a member of the Tribunal was found to have erred at law and the determination of a preliminary issue was overturned on appeal because it was made “without first establishing that the facts were concrete and established or agreed”. Contentions [18] The First Applicant refers to s 61 and s 107(4) of the Liquor Act 1992 (Qld) (“Liquor Act”) which contain provisions about how the Commissioner might be satisfied of a 4 [2020] QCAT 339 5 [2021] QCATA 128 6 [2023] QCATA 148 -- 6 of 11 -- 7 fact and then points to s 123(1)(b) having no such provision. The First Applicant submits that whether or not the requirement in s 123(1)(b) has been met is to be assessed on the balance of probabilities, but it has to be observed that such an onus or a standard of proof sits within the bounds of adversarial proceedings rather than administrative decision making proceedings such as this. [19] The First Applicant contends that the decision made on 20 December 2022 was not authorised by s 123(1)(b) of the Liquor Act because at the time of the decision there was no relevant development approval that existed in respect of the premises for which the provisional licence was granted. It was not sufficient for the First Respondent to rely upon advice from the local Council and, further, the advice sought and obtained did not amount to advice that a relevant development approval existed. In fact, searches revealed that three development approvals had been given in respect of the land,7 yet none of them would support the grant of a commercial hotel licence, and the most recent of them had been given in 2003, such that it must by now have expired and could no longer be capable of being considered to be a development approval for the purpose of s 123 of the Liquor Act. In support of that submission, the First Applicant points to: (a) the need in s 123(1)(b) of the Liquor Act for a “development approval” to have been given in respect of the land; (b) the fact that s 123B of the Liquor Act limits the currency of a provisional licence to the “relevant period” for the development approval in relation to which the licence is granted and s 4 of the Liquor Act defines “relevant period” as a period which ends on the earlier of: (i) the end of the period during which the approval, or the part of the approval for the use, lapses under the Planning Act 2016 (Qld) or the Economic Development Act 2012 (Qld); or (ii) 4 years after the day the approval takes effect. [20] On that basis, the most recent development approval, made in 2003, must have expired for the purpose of s 123B by no later than 2007. [21] The First Applicant contended that if the Tribunal were to find that the First Respondent’s decision on 20 December 2022 was made in contravention of the requirements of s 123 of the Liquor Act, then the decision should be set aside and the Application by the Second Respondent for a commercial hotel licence should be refused. The First Applicant resiled from that position during the hearing, accepting that the Tribunal did not have the power to set aside a decision in the absence of a fresh hearing being conducted, and did not have the power to order the First Respondent to refuse the Application for a commercial hotel licence. [22] The First Applicant also contended that if the First Respondent’s decision was made ultra vires, then it was a nullity and a fresh hearing could not be conducted. No authority for that proposition was advanced. [23] The Second Applicant largely supported the First Applicant’s submissions, but also argued that the use of the land which would be required under a relevant development approval was not supported by the Fraser Coast Planning Scheme and accordingly a material change of use application would be required under the Planning Act 2016 7 described by the Applicants as “historical” -- 7 of 11 -- 8 (Qld) before a development approval could issue. Further, the state of the premises in question meant that they were not suitable for the conduct of a business of the kind proposed. At best, the local Council had indicated that it would not object to the First Respondent granting a commercial hotel licence in the event of the resumed use of the property as a restaurant and that this was insufficient to satisfy the requirement in s 123(1)(b) of the Liquor Act. The Second Applicant relied upon the explanatory memorandum tabled with the Bill that inserted s 123 into the Liquor Act which included: New section 123 expands upon the existing provisions of the Act by clarifying the circumstances in which a provisional grant of licence may be made. In particular it emphasises that before a provisional grant may be made the chief executive must be satisfied that the primary purpose of the proposed license will be met and the requirements of section 107 relating to the suitability of the applicant have been fulfilled. It also emphasises that development approval from the relevant local government is a requirement before the granting of such a licence. If the preconditions are met, but final certificates relating to building work or such things as hygiene certificates are still required, the chief executive may grant the application for licence provisionally….. [24] The Second Applicant referred to the Tribunal’s role which is to conduct a fresh hearing on the merits, with the purpose of producing the correct and preferable decision, relying upon the decision in Reef House property Pty Ltd v Commissioner of Liquor and Gaming Regulation.8 Whether or not the First Respondent could be said to have been satisfied that a development approval existed because of its communications with the Council, the Tribunal was required to conduct a fresh hearing and to come to its own conclusion about that matter rather than merely adopting the view taken by the First Respondent, and in doing so it could not be satisfied that a relevant development approval existed because in fact there was no relevant development approval. [25] The First Respondent accepted that a development approval specifically for a “hotel” was not in place, but contended that the decision made on 20 December 2022 was nevertheless made in accordance with s 123(1)(b) of the Liquor Act because: (a) there were existing approvals for the use of the land as a restaurant, function facility, bar, shop and caretakers accommodation which were, according to the local Council, capable of supporting the use of the land as hotel; and (b) the First Respondent was entitled to rely upon the advice of the local Council as to the approvals that existed and the fact that it did not oppose the proposed use of the land. [26] The First Respondent argues that a new development approval was not required because the existing, albeit very dated, development approvals cumulatively authorize the use of the land in the way contemplated by the Second Respondent. [27] The First Respondent contended that it was not necessary for the decision maker to have a physical copy of a development approval before making its decision and that the Tribunal would not interpret the requirements of s 123(1)(b) in an overly technical and restrictive manner, preferring an interpretation that allows the decision maker to 8 [2024] QCA 121 -- 8 of 11 -- 9 be informed by a range of sources to reach the required level of satisfaction about those matters. [28] The Second Respondent supported the First Respondent’s position. Consideration [29] In this proceeding, the preliminary issue proposed for determination is not one that needs to be answered in order to enable the proceeding to advance fairly, nor does it seem to achieve anything in particular. [30] The essence of the question is whether or not the First Respondent made an error of law, but it is not necessary for the Applicants to establish an error of law, nor would proof of an error at law advance their case in any meaningful way. Whether the First Respondent erred or not makes no difference in the proceeding because regardless of any determination made at this stage of the proceeding, the Tribunal would still need to conduct a final hearing at which it would strive to make the correct and preferable decision on the same material that was before the Commissioner with a view to: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the tribunal considers appropriate. [31] If that were the end of the matter, the Application would be dismissed on the basis that it has no utility, however, during the hearing the First Respondent expressed its position to be that, if the Tribunal was of the opinion that the requirements of s 123(1)(b) of the Liquor Act had not been met, then the First Respondent should again be invited to reconsider its decision and the Tribunal’s reasons could include directions to the First Respondent about its policies, practices and procedures regarding the way in which it determines whether it is satisfied of the matters required under s 123(1)(b) of the Liquor Act. Section 24 of the QCAT Act empowers the Tribunal to make written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind to the chief executive of the entity in which the reviewable decision was made. [32] As noted above, the First Respondent has already been invited to reconsider its decision, but that was upon the receipt of fresh evidence. This would be a reconsideration on the basis of the Tribunal finding that the requirements of s 123 of the Liquor Act had not been met, essentially inviting the decision maker to set aside its own decision rather than requiring the parties to spend the time and resources that would be necessary for a final hearing at which the same outcome was likely. [33] In terms of answering the preliminary question, it has to be observed that there are in fact three parts to the question that has been posed: (1) did the First Respondent act in contravention of s 123 of the Liquor Act; and (2) was there a Development Approval that had been given for the use of the land as required by s 123(1)(b); and (3) was the decision made ultra vires of the First Respondent’s powers. [34] I am satisfied that answering the preliminary question/s may contribute to the saving of time and cost by substantially narrowing the issues for a final hearing, and it may -- 9 of 11 -- 10 even lead to disposal of the action through the First Respondent’s reconsideration of its own decision. [35] The use of the word “contravention” in the question incorporates an aspect of wrongdoing on the First Respondent’s part, yet there is a presumption arising from s 27A(6) of the Acts Interpretation Act 1954 (Qld), that the decision to grant the provisional hotel licence was properly made, unless the contrary is proved. That presumption goes to the question of whether or not the First Respondent was capable of being, and was in fact, satisfied that “a development approval has been given for the use of the land on which the proposed premises will be situated for licensed premises”. [36] Also, on its face and read in isolation, s 123(1)(b) of the Liquor Act supports the decision that was made because “a development approval has been given for the use of the land on which the proposed premises will be situated for licensed premises”. In 2003, a development approval was given for the conduct of a café and restaurant business on the premises including the sale of alcohol. [37] There is nothing before the Tribunal which suggest that the First Respondent acted otherwise than in good faith. In other words, the First Respondent was satisfied that a development approval had been given for the use of the land on which the proposed premises will be situated for licensed premises. [38] Whether or not it was ultimately the correct and preferrable decision to make, the Tribunal is satisfied that the First Respondent did not act in “contravention” of s 123 of the Liquor Act. [39] The problem with the simple analysis in paragraph [36] above is that s 4 and s 123B of the Liquor Act impact upon the meaning of development approval for the purpose of s 123. In circumstances where the relevant period for a development approval is limited to four years after that approval came into effect, it must be that there was in fact no relevant development approval for the use of the land on which the proposed premises will be situated for licensed premises at the time of the decision which is under review. [40] So, the answers to the reframed question in paragraph [33] above are: (a) No, the First Respondent did not act in contravention of s 123 of the Liquor Act; (b) There was no development approval that had been given for the use of the land as required by s 123(1)(b); (c) Yes, in the absence of a development approval having in fact been given, the decision to grant a provisional hotel licence was made ultra vires, even if it was made in good faith. [41] These answers do not finally dispose of the matter. [42] As already identified, the Tribunal’s function is to make the correct and preferable decision. Error on the part of the First Respondent is irrelevant. The correct and preferable decision can only be made after a final hearing at which the Tribunal would: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or -- 10 of 11 -- 11 (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. [43] The Tribunal is not satisfied that it would be appropriate to make recommendations to the Chief Executive of the First Respondent about the way in which it should consider future applications for provisional licences and accordingly declines to do so. [44] Pursuant to s 23(2)(a) of the QCAT the First Respondent has 28 days in which to reconsider the decision it made on 20 December 2022. Accordingly, it is directed that a further Directions Hearing be scheduled on a date to be advised with a view to making directions for the conduct of a final hearing. -- 11 of 11 --