Angas Park Cellars Pty Ltd v Nuriootpa Wine Inn Motel

[2000] SASC 130

ANGAS PARK CELLARS PTY LTD v
NURIOOTPA WINE INN MOTEL & ANOR

[2000] SASC 130

Application for Leave to Appeal

1      GRAY J.           This is an application for leave to appeal from a decision of a Judge of the Licensing Court.

2      The Liquor Licensing Act 1997 provides for appeals as follows:-

"27.

(1) A party to proceedings before the Court may, by leave of the Supreme Court, appeal against any order or decision of the court.

...

(3). An appeal must be commenced within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court.

...

(4)... An appeal under this section must be heard and determined by the Full Court."

3      The Full Court in Mick Lucas & Son Py Ltd v The Licensing Commissioner[1] considered the criteria relevant to a grant of leave to appeal.  That court considered the terms of the Liquor Licensing Act 1985, which are in all relevant respects the same as those in the Liquor Licensing Act 1997. King CJ contrasted the terms of the 1985 Act to those of its predecessor the 1967 Act. King CJ said at page 31:-

"       The criteria to be applied in granting or refusing leave must be influenced to a considerable extent by the fact that the appeal is a first appeal from the court of first instance.  The appeal provision differs from that in the Licensing Act 1967, in that that appeal was as of right on questions of law but by leave only on questions of fact.  I thought that that distinction was significant in determining the intention of the legislature and in Tomley Investment Co Pty Ltd v Superintendent of Licensed Premises (1979) 21 SASR 176 at 178 I expressed the view that on questions of fact 'the intention of the legislation is that the decision of the special tribunal will ordinarily be final' and that 'this Court should grant leave only in special circumstances.' I do not think that that reasoning can be applied to the present appeal provision. All appeals under the present Act, whether of fact or law, are by leave. The reason for the presumption against leave no longer exists. The appeal to this Court is to be regarded simply as a first appeal but by leave only.

In these circumstances, the requirement for leave must be designed, in my opinion, to confine appeals to cases which are reasonably arguable and in which the subject-matter is of sufficient substance to justify the cost of an appeal.  Where those criteria are satisfied I think that leave should ordinarily be granted."

[1] (1987) 45 SASR 312 at 313

4      Cox J addressed the question of the appropriate criteria to be applied at  page 322.  His Honour took the view that the case before him was fit for leave as substantial issues of law were raised.  In those circumstances  he found it "unnecessary, and probably undesirable to attempt to lay down universal tests for the grant of leave to appeal." O'Loughlin J agreed with the reasons of the Chief Justice and Cox J.

5      More recently Debelle J in Woolies Liquor Stores Pty Ltd v Marden Cellars & Ors[2] remarked ex tempore that the second qualification laid down by King CJ was usually met, as most cases "which are the subject of application for leave to appeal from this Court concern matters of substance such as applications for a licence or renewal of a licence which justify the cost of an appeal."  In my view the second criteria laid down by King CJ is satisfied in this application.  The substantive issue is whether the first criteria has been satisfied.

[2] (2000) SASC 11

6      Debelle J discussed the reasonably arguable criteria in the following terms at page 1:-

"       The requirement for leave is intended to filter out cases appropriate for appeal.  By what criteria is the process to be effected?  Appeals to this court are not a re-hearing.  Some weight might have to be given to the fact that the appeal to the Full Court of this court is the only avenue of appeal.  Equally, it must be remembered that this is an appeal from a specialist tribunal.  I do not think that King CJ intended that leave should be granted where the intended appeal turns on questions of fact and the appeal involves no issue of principle or the appellant does not assert that the licensing judge has misdirected himself in law or that the judge has made an identifiable and egregious blunder or that the circumstances are in some respect quite exceptional:  cf Transfield (Adelaide) Pty Ltd v City of Port Augusta (1987) 29 SASR 467 at 480."

7      I find these remarks of assistance, but ultimately the test remains - is the applicant's case reasonably arguable?

8      Counsel for the applicant identified four matters said to warrant a grant of leave.  It was submitted that the Licensing Judge failed to have regard to the decision in Nepeor and Miniben v The Liquor Licensing Commissioner and Others [3] and in particular the remarks of von Doussa J at 219 - 220.  This decision has been the subject of comment in the recent Full Court decision of Woolies Liquor Stores v Seaford Rise Tavern[4] where Doyle CJ said at paragraph 42:-

"       A particular submission advanced by Mr Walsh QC was based upon the fact that in Nepeor this Court apparently regarded it as unreasonable by contemporary standards to expect the public in the relevant locality to make a round trip by motor vehicle of the order of 6 kms or more to purchase liquor.  He made the point that the effect of the decision in the present case was to impose such a requirement.  First of all, as a matter of fact that submission is not correct.  It would apply to some people in the locality, but for the reasons indicated by me for many people in the locality the distance to Super Cellars or Village Cellars would either be less than the distance to Hackham Plaza, or certainly no more.  But quite apart from that, the factual conclusion reached in one case cannot be transposed in the manner suggested by Mr Walsh QC to another case.  That is not to say that the decision in Nepeor cannot be taken as indicating an approach to or giving content to the contemporary standards to be applied under s 58(2).  But it is taking that process too far to argue that Nepeor establishes a travelling distance which sets a limit to what can be expected in suburban areas generally by reference to contemporary standards."

[3] (1987) 46 SASR 205

[4] (2000) SASC 116

9      Counsel further argued that the Licensing Judge had been unduly influenced by an earlier allegation that the applicants for the licence were engaged in an abuse of process.  The history of the matter is complicated. An earlier application had been refused by an Acting Judge of the Licensing Court and, within weeks of his decision, the current application was brought in respect of the same premises, but asserting material new matters. The Licensing Judge dismissed an interlocutory application that the matter should be stayed as an abuse of process. An application for leave to appeal was refused by Perry J.  An attempt to have the Full Court hear the matter failed.

10     The matter then proceeded to a full hearing before the Licensing Judge.  The applicant complains, that notwithstanding the rejection of the abuse argument, the Judge remained preoccupied with it and allowed this false issue to unduly influence his approach to the application. 

11     There were two further grounds relating to issues of fact said to have been overlooked or not had regard to by the Licensing Court Judge.  The first related to evidence in regard to demographics, of a growing population in the area and an increasing number of tourists.  The second related to a period of eight months of trading whilst the premises were operated under a redefinition order.  The redefinition application had been granted by the Licensing Judge, but his order was later reversed by the Full Court.  In the interim, some eight to nine months trading occurred at the applicant's premises.  There was evidence led before the Licensing Court indicating the nature and extent of that trading both from the owners and customers.   It is suggested that the failure to have regard to these factual matters was in error.

12     The Supreme Court rules provide that the hearing of an application for leave to appeal be ex parte, unless the Judge otherwise directs.  On the hearing of the application, counsel for an objector, a proposed respondent, sought to be heard.  He wished to put submissions in regard to two matters and in view of the history of this matter I allowed him to do so. 

13     Counsel for the objector submitted that the decision in Nepeor was one of fact and did not enunciate any matter of principle.

14     I consider that the decision in Nepeor does enunciate a matter of principle in terms recognised in Woolies Liquor Stores v SeafordRise Tavern.[5] I accept that each case will turn on its own facts, but the principle identified in the decision in Nepeor is one to which regard should be had. In my view it is reasonably arguable that the learned Licensing Judge was in error in regard to the approach he took to contemporary standards in regard to travel in the well populated country area of the Barossa Valley.

[5]      supra at paragraph 42

15     On the issue of abuse, counsel for the objector submitted that the learned Licensing Judge was justified in making the findings that he did, as the issue of the intentions of the applicant and its bona fides were relevant.  Although this may be so, in my view it remains reasonably arguable that the Licensing Judge erred.

16     I consider that the two further issues of fact referred to above are arguable.  If the complaints of a failure to have regard to the matters raised are made out, then material error arguably occurred.

17     For these reasons I will grant leave to appeal.  The application for leave was some days out of time, an explanation has been offered, which I accept.

18     The orders of the Court are that the time to seek leave to appeal is extended and that leave to appeal be granted.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1(1987) 45 SASR 312 (at page 313)

2 (2000) SASC 11

3 (1987) 46 SASR 205

4 (2000) SASC 116

5      Supra at paragraph 42