Background
On 21 May 2025, the Commissioner for Liquor and Gaming granted a ‘Commercial Other – Subsidiary on Premises Licence’ for premises on Oxford Street, Bulimba, Queensland. The four appellants — a company owning adjacent property and several local residents — sought review of that decision in the Queensland Civil and Administrative Tribunal (QCAT) under s 30 of the Liquor Act 1992 (Qld). During the review proceeding, the Commissioner disclosed development plans that had not been available to the appellants at the time the licence was granted.
Armed with those plans, the appellants commissioned expert reports from a town planner, environmental engineer, social planner, and traffic engineer addressing the impacts of the proposed development. Those reports were provided to the appellants in October 2025 — that is, after the Commissioner had already made the decision. The appellants sought leave from the Tribunal under s 34 of the Liquor Act to present this post-decision expert evidence in the review proceeding.
The Tribunal refused leave, holding that s 34 only permits admission of evidence that existed at the time the Commissioner’s decision was made. The appellants appealed to the Court of Appeal on a question of law under s 35(3) of the Liquor Act, contending that the Tribunal misread the statutory provision and that evidence created after the decision could qualify for leave.
The Court’s Holding
The Court of Appeal (Boddice JA, Gotterson AJA, and Cooper J) unanimously dismissed the appeal. Cooper J (with whom the other judges agreed) held that the Tribunal’s construction of s 34 was correct. Under s 33, QCAT must conduct its review by reconsidering only the evidence that was before the Commissioner when the decision was made. Section 34 creates a narrow exception permitting new evidence to be admitted, but only where the party seeking leave satisfies two cumulative requirements: (a) the party did not know, and could not reasonably have been expected to know, of the existence of the evidence before the decision; and (b) it would be unfair not to allow the evidence to be presented.
The Court focused on the word “existence” in s 34(1)(a). That word, read together with the temporal marker “before the decision”, presupposes that the evidence was in existence at the time the Commissioner decided but was unknown to the party. It makes no linguistic sense, the Court held, to speak of a party not knowing of the “existence” of evidence that did not yet exist when the decision was made. Accordingly, evidence brought into existence after the decision is outside the scope of s 34, even though it falls within the broad binary definition of “new evidence” in s 34(3) (which simply means evidence not before the Commissioner).
The Court also rejected the appellants’ argument that ss 34(1)(a) and 34(1)(b) operate disjunctively as two species of unfairness, either of which alone could enliven the power to grant leave. The conjunctive “and” joining those sub-paragraphs was given its ordinary cumulative meaning. The Court further held that contextual and purposive considerations reinforced the textual conclusion: allowing post-decision evidence would undermine the finality of the Commissioner’s decision-making process and could invite repeated rounds of supplementary evidence and remittal.
Key Takeaways
- Section 34 of the Liquor Act 1992 (Qld) permits QCAT to admit “new evidence” on review of a Commissioner’s decision only where that evidence existed at the time of the decision but was unknown to the party — evidence created after the decision falls outside the provision’s scope.
- The requirements in ss 34(1)(a) and 34(1)(b) are cumulative, not alternative; a party must satisfy both the absence-of-prior-knowledge condition and the unfairness condition before leave can be granted.
- A broad purposive argument — that QCAT should have access to “the best evidence available” in order to reach the correct and preferable decision — cannot override the limiting effect of the statutory text, particularly where permitting post-decision evidence would threaten finality and invite iterative remittals.
- When an enabling Act (here, the Liquor Act) specifies QCAT’s evidentiary functions on review, those provisions prevail over the general provisions of the QCAT Act 2009 (Qld).
Why It Matters
This decision clarifies a significant practical question for parties challenging liquor licence decisions in Queensland: expert evidence commissioned during a review proceeding — for example, after development plans are first disclosed by the Commissioner — cannot be admitted under s 34 because that evidence did not exist when the original decision was made. Objectors who anticipate needing expert analysis must seek to place that material before the Commissioner during the initial application process, or risk being unable to rely on it at the review stage.
More broadly, the judgment reinforces the principle that statutory exceptions to evidence-restriction rules in administrative review proceedings are to be read strictly against their text, and that purposive arguments favouring broader merits review will not prevail where the legislature has used language that imposes a clear temporal limitation. The decision will be relevant to any proceeding before QCAT — or before tribunals operating under similarly structured enabling Acts — where a party seeks to introduce evidence that post-dates the primary decision under review.