Australian Leisure and Hospitality Group Pty Ltd v McLAUCHLAN [No 2] - [2018] WASC 163

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD -v- McLAUCHLAN [No 2] [2018] WASC 163
CORAM:   TOTTLE J
HEARD:   17 OCTOBER 2017
DELIVERED          :   31 MAY 2018
PUBLISHED           :   31 MAY 2018
FILE NO/S:   CIV 1769 of 2017
BETWEEN:   AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD
Applicant
AND
DARYL McLAUCHLAN
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor
PDJ GERALDTON PTY LTD
Other Party

Catchwords:

Judicial review - Liquor licensing - Review of successful application for variation to licence condition - Where applicant argues two licence applications required to be heard together - Where applications heard separately - Whether public interest test required applications to be heard together - whether denial of procedural fairness

Legislation:

Liquor Control Act 1988 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr M N Solomon SC & Mr A Sharpe
Respondent	:	No appearance
Intervenor	:	Mr B D Nelson & Mr A Mason
Other Party	:	No appearance

Solicitors:

Applicant	:	Squire Patton Boggs
Respondent	:	No appearance
Intervenor	:	State Solicitor for Western Australia
Other Party	:	No appearance

Case(s) referred to in decision(s):

Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 254 CLR 394
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kong v Minister for Health [2014] FCAFC 149; (2014) 227 FCR 215
Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589
Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42; (2013) 211 FCR 298

TOTTLE J:

Introduction

This application arises out of competition between rivals in the liquor trade: the applicant and the Other Party, PDJ. Each wishes to establish a large format liquor store in Geraldton. Presently, there is no such liquor store in Geraldton.
The applicant has applied for judicial review of a decision made on 28 March 2017 by the respondent, a delegate of the Director of Liquor Licensing, to grant an extension of time to complete the construction of premises owned by PDJ which are to be known as 'Con's Liquor Geraldton'. The premises are the subject of a licence granted to PDJ under s 62 of the Liquor Control Act 1988 (WA) (the Act).[1]When granted the licence was subject to a condition that required the construction of the premises to be completed by 14 June 2016. Upon application by PDJ, the respondent granted an extension of time for the completion of the premises until on or before 31 December 2018. This decision by the respondent is challenged by the applicant which applies for the issue of a writ of certiorari quashing the decision and for a declaration.
[1] Unless otherwise stated all references to statutory provisions are references to provisions of the Act.

Overview

The facts are set out in more detail later in these reasons. For the purposes of this introduction the following overview will suffice.
On 18 July 2014 PDJ applied for the conditional grant of a liquor store licence (PDJ's licence application) in relation to premises to be constructed by it at Lot 86, Utakarra Road, Utakarra, Geraldton. The Liquor Commission of Western Australia approved the conditional grant of the licence on 14 June 2016. The licence was subject to conditions that all work required to construct the premises had to be completed within 12 months and PDJ was required to seek confirmation of the grant on or before 14 June 2017.[2]
[2] Notice of the approval of the grant was given by a letter dated 20 June 2016. The letter erroneously referred to 14 June 2016 as the date by which the premises were to be completed.
In the meantime on 17 November 2015 the applicant lodged an application for approval and redefinition of an existing liquor licence held by it for premises at 441 Chapman Road, Bluff Point, Geraldton, known as the Wintersun Hotel, and a liquor store known as the BWS store (the Wintersun application). The Wintersun application sought permission to upgrade the Wintersun Hotel and convert the BWS bottle shop into a large format liquor store which was to be branded as a 'Dan Murphy's'. Mr Peter Jeffree, a director of PDJ objected to the Wintersun application. The Liquor Commission began the hearing of the Wintersun application on 9 November 2016. The hearing was adjourned without a date for its resumption being fixed.
By February 2017 PDJ had not commenced work on the construction of Con's Liquor Geraldton. This was the catalyst for the applicant to make inquiries about the conditions imposed on the licence granted to PDJ and as to whether there had been compliance with those conditions. The steps subsequently taken by the applicant are described in detail later.
By letter dated 17 March 2017 PDJ applied to the Director for an extension of the period for the construction of the premises (PDJ variation application). PDJ sought to have the period extended to 31 December 2018. The applicant had no notice of the PDJ variation application. By letter from the applicant's solicitors also sent on 17 March 2017 to the Director, the applicant sought, amongst other things, the right to intervene in any proceedings concerning any application by PDJ to vary any of the conditions of its licence and for any such application to be heard together with the Wintersun application.
On 28 March 2017 the respondent made the impugned decision. Correspondence was exchanged and on 3 May 2017 PDJ sent an email to the applicant's solicitors attaching two letters: first, the letter dated 20 June 2016 from a delegate of the Director notifying PDJ of the grant of the licence; and, secondly, a copy of a letter from the respondent to PDJ dated 28 March 2017 notifying PDJ of the respondent's decision to grant an extension of time for completion of construction of Con's Liquor Geraldton until 31 December 2018.
The application for judicial review was filed on 15 May 2017 and amended on 25 July 2017.
PDJ filed a notice of intention to abide by the outcome of the application. In the absence of a contradictor, the intervenor, the Attorney General for the State of Western Australia, appeared by counsel and made submissions in opposition to the application.
Five grounds are relied upon in the application but essentially there are two issues:
(a)Did the public interest require that the PDJ variation application and the Wintersun application be considered together and determined by the same decision-maker (the public interest issue)?
(b)Was the applicant denied natural justice for one or more of the following reasons: first, because determining the PDJ variation application before the Wintersun application denied the applicant a proper hearing of the Wintersun application; second, because the Director should have exercised the discretion conferred upon him to refer the PDJ variation application to the Liquor Commission so that the Commission could exercise its discretion to hear the PDJ variation application with the Wintersun application; and, third, because the applicant was not permitted to make submissions and adduce evidence on the PDJ variation application.
In the intervenor's submissions an issue about the applicant's standing was raised but it is unnecessary for me to deal with it.
Before setting out the facts in more detail I will set out the legislative framework.

The legislative framework

The long title of the Act states that it is:
An Act to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with or ancillary to the sale of liquor, to minimise harm or ill-health caused to people, or any group of people due to the use of liquor, to provide for orders that may prohibit persons from being employed at, or from entering, licensed premises, to repeal the Liquor Act 1970, and for related matters.
The Act entrusts various powers to the 'licensing authority' which is defined in s 3 to mean:
(a)in relation to an application or matter that is, under the Act, to be determined by the Commission - the Commission; and
(b)otherwise - the Director.
The primary objects of the Act are set out in s 5(1). They are:
(a)to regulate the sale, supply and consumption of liquor; and
(b)to minimise harm or ill‑health caused to people, or any group of people, due to the use of liquor; and
(c)to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
Section 5(2) sets out secondary objects. They are:
(a)to facilitate the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State; and
[(b), (c)deleted]
(d)to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor; and
(e)to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of this Act.
By s 5(3), if, in carrying out any of its functions under the Act, the licensing authority considers that there is any inconsistency between the primary objects and the secondary objects, the primary objects take precedence.
The 'Commission' is the Liquor Commission established by s 8 of the Act and the 'Director' or 'Director of Liquor Licensing' means the Chief Executive Officer of the department principally assisting with the administration of the Act.[3]
[3] Liquor Control Act 1988 (WA) s 3.
The Director is responsible for the administration of the Act, other than those aspects of administration that relate to the Liquor Commission,[4] and is to determine applications and matters under the Act that are not subject to the jurisdiction of the Liquor Commission.[5]
[4] Liquor Control Act 1988 (WA) s 13(2).
[5] Liquor Control Act 1988 (WA) s 13(4).
Section 16(1) provides:
In any proceedings under this Act, the licensing authority, however constituted ‑
(a)shall act without undue formality;
(b)may ‑
(i)obtain information as to any question that arises for decision in such manner as it thinks fit; and
(ii)make its determination on the balance of probabilities;
(c)may, upon its own motion or upon the application of any party, adjourn the hearing or further hearing of any application or matter from time to time either to the same place or to any other place; and
(d)may consider and dismiss or determine applications and receive submissions and representations in relation to any application before it, as it thinks fit.
Section 16(7) provides:
The Evidence Act 1906 does not apply to the proceedings of the licensing authority, however constituted, and the licensing authority ‑
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that the licensing authority adopts those rules, practices or procedures or the regulations make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and
(c)is to act as speedily and with as little formality and technicality as is practicable.
Section 16(12) of the Act provides that where applications are heard together, the evidence relating to one of them is evidence in relation to the other or others.
The decision-making function entrusted to the Director under the Act may be referred in two ways:
(a)the Director may delegate any of the functions of the Director under the Act (other than the power of delegation) to an inspector or officer;[6]
(b)the Director may refer a matter that is to be determined by the Director to the Commission for hearing and determination.[7]
[6] Liquor Control Act 1988 (WA) s 15(1).
[7] Liquor Control Act 1988 (WA) s 24(1).
Section 30A of the Act provides for the licensing authority to grant licences in accordance with the Act. 'Licence' is defined in s 3 as 'a licence granted under this Act'. Licences of different kinds may be granted, such as a hotel licence, a nightclub licence or a restaurant licence. One licence which the licensing authority may grant under s 30A(1) is for the operation of a liquor store licence under s 47, which permits a licensee to sell packaged liquor from the premises during permitted hours. I interpolate PDJ applied for a liquor store licence for Con's Liquor Geraldton.
Section 33(1) of the Act sets out the general scope of the discretion of the licensing authority to make decisions in the public interest. It provides:
Subject to this Act, the licensing authority has an absolute discretion to grant or refuse an application under this Act on any ground, or for any reason, that the licensing authority considers in the public interest.
Section 33(2) provides an application:
(a)may be refused, even if the applicant meets all the requirements of the Act; or
(b)may be granted, even if a valid ground of objection is made out,
'but is required to be dealt with on its merits', after such inquiry as the licensing authority thinks fit.
By s 38(2) an applicant who makes an application to which the subsection applies must satisfy the licensing authority that granting the application is in the public interest (the public interest test).
By s 38(1), s 38(2) applies to:
(a)an application for the grant or removal of a licence; or
(b)an application for a permit of a kind prescribed; or
(c)any other application to which the Director decides it is appropriate for subsection (2) to apply.
Section 38(4) states:
Without limiting s 38(2), the matters the licensing authority may have regard to in determining whether granting an application is in the public interest include:
(a)the harm or ill‑health that might be caused to people, or any group of people, due to the use of liquor;
(b)the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated;
(c)whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises; and
(d)any other prescribed matter.
Various provisions in the Act may be taken to indicate the significance of the premises from which liquor may be sold pursuant to a licence. The long title of the Act refers to the use of premises on which liquor is sold. A licence authorises the holder to sell or supply liquor 'from the buildings or places' referred to in the licence.[8] Section 37(1) provides that, subject to limited exceptions, a licence will not be granted unless the licensing authority is satisfied that the premises to which the application relates are, or when constructed will be, of sufficient standard and suitable for the proper conduct of the business to be carried on from there.[9] Subject to a presently irrelevant exception, an application for a licence must be accompanied by plans of the premises to which the application relates.
[8] Liquor Control Act 1988 (WA) s 31(2).
[9] Liquor Control Act 1988 (WA) s 37(1)(f).
Section 62 applies to an application for the grant of a licence in respect of premises, or for the removal of a licence to premises, if at the date of the final hearing of that application, those premises are uncompleted. Section 62 is central to the issues to be determined and I will set out its full text.
62. Uncompleted premises, conditional grant or removal in case of
(1)This section applies to an application -
(a)for a licence in respect of premises; or
(b)for the removal of a licence to premises, whether or not to be dealt with at the same time as a related application for the transfer of the licence,
if, at the date of the final hearing of that application, those premises are uncompleted.
(2)Where this section applies to an application and the licensing authority is satisfied that a licence of the class sought in the application, or the removal of a licence to the premises, as the case may be, should be granted to the applicant in relation to the premises on conditions relating to the completion of the premises, the licensing authority shall grant the licence or removal to the applicant subject to those conditions.
(3)A conditional grant of a licence or removal shall not be made under this section unless the applicant has submitted -
(a)plans and specifications for the proposed premises; or
(b)a plan sufficient to identify the site of the premises together with a description (in which particular emphasis is given to any part of those premises to be used for the sale or consumption of liquor or for related services or amenities) sufficient to give a general indication of the proposed size and character of the proposed premises.
(4)A conditional grant of a licence or removal under this section shall include -
(a)if full plans and specifications were not submitted by the applicant in accordance with subsection (3)(a), a condition that they be submitted within 12 months after the conditional grant; and
(b)a condition that the premises be completed in accordance with the plans and specifications submitted by the applicant; and
(c)a condition that the holder of the licence conditionally granted or removed apply on or before a specified day (the required day) for confirmation of the grant.
(5)A conditional grant of a licence or removal under this section may be made subject to such further conditions as the licensing authority thinks fit including conditions -
(a)that the premises shall be completed in accordance with specified plans or specifications, or subject to specified modifications; or
(b)as to a specified manner, or sequence, of the completion of the premises; or
(c)requiring the applicant to enter into a bond, with or without sureties, conditional on the completion to the satisfaction of the licensing authority of specified work within a specified time; or
(d)that the grant will be cancelled if the licensing authority is not satisfied as to any specified matter to which section 39 or 40 refers or as to public safety or fire precautions; or
(e)that a transfer of the licence to a designated person be effected in a manner approved by the licensing authority.
(6)On an application by the holder of a licence conditionally granted or removed under this section, the licensing authority may -
(a)vary any plans or specifications the subject of a condition; or
(b)otherwise vary any conditions to which the licence is subject, including a condition imposed under subsection (4).
(7)Where full plans and specifications are submitted in accordance with the condition imposed under subsection (4)(a), the licensing authority may -
(a)vary or add to the conditions of the grant of the licence or removal under this section as it thinks fit; or
(b)cancel or suspend the operation of the conditional grant,
if it is not satisfied that the existing conditions are appropriate in relation to the plans and specifications.
(8)If the licensing authority determines that premises when completed, or likely to be completed, do not or will not substantially comply with any condition imposed or are so significantly altered that the existing conditions of the grant are inappropriate, the licensing authority may at its discretion cancel or suspend the operation of the licence conditionally granted or removed and require the applicant to make a fresh application, which shall be subject to any objection that may then be made.
(9)If the holder of a licence conditionally granted or removed under this section applies for confirmation of the grant, and the licensing authority is satisfied that the conditions of the grant have been satisfactorily complied with, it shall confirm the grant or removal of the licence.
(10)If the holder of a licence conditionally granted or removed under this section fails to apply for confirmation of the grant, the Director may cancel the licence without notice.
(11)Notwithstanding section 37(5)(b), where the licensing authority makes a conditional grant of a removal under this section, it may also authorise the licensee to cease to occupy the premises from which the licence is to be removed without losing the interest in the licence until the grant is confirmed in accordance with this section.

Section 77(1) provides that there is to be no alteration of licensed premises without approval by the licensing authority. Section 77(4) provides that the licensing authority may approve a proposed alteration of licensed premises or redefinition of licensed premises as defined in the licence. The Wintersun application was made under s 77(4).
The Director may suspend the operation of any licence if he considers it is in the public interest to do so.[10] After giving the holder of a suspended licence a reasonable opportunity to make submissions or be heard, if satisfied of certain matters, the Director may cancel a licence that is suspended.[11]
[10] Liquor Control Act 1988 (WA) s 91(1).
[11] Liquor Control Act 1988 (WA) s 92(1).
Section 109(1) of the Act provides that it is an offence for a person to sell any liquor unless the sale is authorised by a licence or permit which authorises the sale. The Act provides that it is unlawful to sell liquor other than by a licence or permit that is 'granted' in accordance with the statutory provisions in the Act.

The facts

The following more detailed account of the facts is taken from a statement of agreed facts.[12] The statement of agreed facts was accompanied by an agreed bundle of relevant documents.
[12] As amended to incorporate the definitions adopted in these reasons and to avoid unnecessary repetition of facts recited already.
On 18 July 2014 PDJ lodged the PDJ licence application.
The applicant did not object pursuant to s 73 of the Act to PDJ's licence application.
PDJ's proposal was for a large format style liquor store with an area of approximately 1,200 sqm on Lot 86, Utakarra Road, Geraldton.
Lot 86, Utakarra Road, Geraldton is approximately 6.3 km by road from the Wintersun Hotel and BWS drive-through.
On 28 May 2015 the City of Greater Geraldton approved a development application for the conversion of the existing BWS bottle shop to a Dan Murphy's liquor store and for the refurbishment of the existing Wintersun Hotel and parking lot.
On 17 November 2015 the applicant lodged an application pursuant to s 68 and s 77 of the Act with the Director for the alteration and redefinition of the existing liquor licence for the Wintersun Hotel and BWS store so as to permit the upgrade of the Wintersun Hotel and the conversion of the existing BWS bottle shop into a Dan Murphy's liquor store.
The existing BWS bottle shop has an area of 148 sqm.
The Dan Murphy's liquor store proposed to replace the BWS liquor store is a large format liquor store with an area of approximately 1,417 sqm.
On 24 November 2015 a delegate of the Director refused the PDJ licence application.
On 25 November 2015 PDJ lodged an application for review of the refusal by the Liquor Commission pursuant to s 25 of the Act.
The applicant was not a party to the review proceedings.
By notice dated 4 February 2016 the Director decided that it was appropriate for s 38(2) of the Act to apply to the Wintersun application pursuant to s 38(1)(c). Accordingly, the applicant must satisfy the Commission that granting the Wintersun application is in the public interest.
On or about 16 March 2016 Mr Jeffree, in his capacity as a director of PDJ filed a Notice of Objection under s 73(4) of the Act in respect of the Wintersun application. Mr Jeffree declared a pecuniary interest in the Wintersun application. The interest was expressed as 'Owns Property at Lot 86 Utakarra Road, Geraldton and has an Application for the grant of a Liquor Store Licence pending at the Liquor Commission'.
On 14 June 2016 the Liquor Commission in Determination LC12/2016:
(a)quashed the decision of the delegate of the Director to refuse PDJ's licence application; and
(b)made a conditional grant of a new liquor store licence to PDJ for a proposed large format liquor store at Lot 86, Utakarra Road to be known as Con's Liquor Geraldton.
In its reasons for the determination, the Liquor Commission found at [44] that 'Geraldton is a town large enough to warrant the establishment of a destination style liquor store', and at [55] that:
Geraldton is a major regional centre and regardless of its current economic status can, in the interests of catering for the requirements of consumers, be considered an appropriate location for a large format style of liquor store similar to those that already exist in other major regional centres, such as Albany and Bunbury.
On 16 June 2016 Mr Jeffree wrote a letter to the Director in respect of the Wintersun application in which he asserted that:
(a)the licensing authority should take judicial notice of the conditional grant of a licence to PDJ for Con's Liquor Geraldton;
(b)Con's Liquor Geraldton alone is able to satisfy the local and regional consumer requirements by providing its range of products, prices, services, facilities, management and building of a modern purpose built liquor store premises, at a suitable location;
(c)the Geraldton consumer requirement for the use of a large format liquor store will be satisfied once Con's Liquor Geraldton opens for trade; and
(d)the Wintersun application provided no evidence, at all, to suggest that the Greater Geraldton Region could, or would have 'a consumer requirement' for two large format liquor store outlets.
By a letter dated 20 June 2016 a delegate of the Director wrote to PDJ to advise that, in accordance with the decision of the Liquor Commission, the application for the conditional grant of a liquor store licence for Con's Liquor Geraldton was approved with effect from 14 June 2016 subject to conditions which included that:
(a)all work be completed within 12 months in accordance with the plans and specifications dated 4 March 2015; and
(b)PDJ seek confirmation of the grant on or before 14 June 2016 pursuant to s 62(4)(c) of the Act.
By a referral notice dated 30 June 2016 the Director exercised the power conferred upon him by s 24 of the Act to refer the Wintersun application to the Liquor Commission for hearing and determination. The referral notice included the following statement:
In light of the Commission's findings in relation to the application for review by Con's Liquor Geraldton, the application for alteration/redefinition of the Wintersun Hotel Motel is referred to the Liquor Commission for determination.[13]
[13] Agreed Bundle, Document 3.
At the hearing of the Wintersun application on 9 November 2016 PDJ was an objector on the basis, amongst other things, that the grant of the licence to PDJ for Con's Liquor Geraldton precluded the grant of the Wintersun application in the public interest.
On 14 February 2017 the applicant's solicitors sent an email to Mr Jeffree, which was copied to, among others, the State Solicitor's Office.
The email attached a letter of the same date from the applicant's solicitors to Mr Jeffree requesting the conditions imposed as part of conditional grant of a liquor licence for Con's Liquor Geraldton.
On 15 February 2017 the State Solicitor's Office replied to the email from the applicant's solicitors and informed them on behalf of the Director that the conditions imposed on the Con's Liquor Geraldton liquor licence were the normal conditions imposed by the licensing authority in accordance with s 47 and s 62 of the Act, with the exception of the condition imposed by the Commission at [56] of its decision, which condition is not material to the present proceedings.
On the same day the applicant's solicitors inquired as to whether the State Solicitor's Office could provide details of the 'required day' pursuant to s 62(4)(c) of the Act by which PDJ was required to apply for confirmation of the grant of its licence.
Again on the same day the State Solicitor's Office advised the applicant's solicitors that the confirmation date was 14 June 2017.
On 1 March 2017, the State Solicitor's Office sent an email to the applicant's solicitors in the following terms in response to a request for the letter containing the conditions imposed on the Con's Liquor Geraldton liquor licence:
I refer to the below, and our recent telephone conversation.
I have taken instructions and the Director is concerned that the provision of the letter to your client, absent any kind of compulsive order or exercise of clear legislative function, may potentially breach the restrictions imposed by s 152 of the Liquor Control Act 1988 (WA).
The Director agrees that the letter, or at least its contents, are relevant to the current Liquor Commission proceedings. In those circumstances the Director invites the Applicant to apply to the Commission for a summons requiring production of the document (pursuant to s 18(1)(b) of the Liquor Control Act 1988 (WA)). The Director, as intervener, would agree that the document is relevant, would neither formally consent to nor oppose the application, and would not seek to be heard any further.
By letter dated 2 March 2017 the applicant's solicitors applied to the Liquor Commission pursuant to s 18(1)(b) of the Act for a summons requiring the Director to produce the document containing the conditions relating to the conditional grant of PDJ's licence application.[14]
[14] Agreed Bundle, Document 4.
By letter dated 13 March 2017 the Chairperson of the Liquor Commission responded to the applicant's solicitors and stated:
The Commission is not satisfied that there is a proper basis for the issuing of the summons and the request is therefore refused.[15]
[15] Agreed Bundle, Document 5.
On 17 March 2017 the applicant's solicitors emailed a letter to the Director and the Chairperson of the Liquor Commission. That letter conveyed the applicant's knowledge that PDJ had not commenced construction of the premises for Con's Liquor Geraldton and would therefore be unable to apply for confirmation of its liquor licence by 14 June 2017. The applicant's solicitors observed that PDJ would shortly need to apply to the Director for a variation of the confirmation date of its conditional liquor store licence, if PDJ had not already done so, as part of its application for the grant of the licence.
By that letter the applicant submitted that any application for variation by PDJ necessarily raised interrelated issues to the Wintersun application and the applicant applied, among other things:
(a)to the Director (pursuant to s 69(12) of the Act) to intervene in any proceedings in relation to any application by PDJ for a variation of the conditions attached to its conditional licence for Con's Liquor Geraldton under s 62(6)(b) of the Act or any application by PDJ for confirmation of the grant of the conditional licence under s 62(9) of the Act;
(b)to the Liquor Commission and the Director to have the application by PDJ for a variation of its conditions or confirmation of its conditional licence to be heard together with the Wintersun Application; and
(c)to the Liquor Commission for a summons for production of the document that details the conditions attached to the conditional grant of the Con's Liquor Geraldton application on the basis that this was necessary for the applicant to have a reasonable opportunity to present its case in the Wintersun application.
By letter dated 21 March 2017 the Chairperson of the Liquor Commission wrote to the applicant's solicitors and stated:
The Commission has finalised the Con's Liquor Geraldton application on its merits and there is no basis to join the alteration/redefinition of Wintersun Hotel application currently before the Commission with it.
There is still no basis to issue the summons.[16]
[16] Agreed Bundle, Document 8.
On 28 March 2017 the applicant's solicitors emailed a letter to the Director and the Chairperson of the Liquor Commission. By that letter the applicant's solicitors sought advice as to whether PDJ had applied or indicated an intention to apply for either confirmation of its conditional grant or for a variance of the conditions attached to the conditional grant of its liquor licence.[17]
[17] Agreed Bundle, Document 9.
Also on 28 March 2017 the respondent made the decision under challenge.
On 29 March 2017 Ms Nicola Perry, Director of Liquor and Gambling at the Department of Racing, Gaming and Liquor, wrote to the applicant's solicitors and stated that s 152 of the Act precluded the Director from informing the applicant's solicitors whether PDJ had applied for either confirmation of the conditional grant or a variation to the condition.[18]
[18] Agreed Bundle, Document 11.
On 18 April 2017 the applicant's solicitors received emails from the State Solicitor's Office advising that on 28 March 2017, a delegate of the Director had granted an application by PDJ for, in effect, an extension of the date for the confirmation of the grant of the licence. Prior to this date, neither the State Solicitor's Office nor any officer of the Department of Racing, Gaming and Liquor had advised the applicant or its solicitors that an application by PDJ for a variation of the conditions of the conditional grant had either been sought or made.

The judicial review grounds

The grounds upon which the applicant relies (amended only to reflect the definitions used in this judgment) are as follows:
(a)the proper application of the public interest test in the Act required that both PDJ's variation application and the Wintersun application be considered together and determined by the same decision-maker, but the respondent determined the PDJ variation application independently of the Wintersun application;
(b)the determination of PDJ's variation application prior to the determination of the Wintersun application is tantamount to giving PDJ a priority which, on a proper construction of the Act, it does not have;
(c)the respondent misconstrued the public interest test in the Act by determining PDJ's variation application in the absence of any consideration by the respondent of the Wintersun application;
(d)the respondent's decision had the effect of denying procedural fairness to the applicant in respect of the Wintersun application in that it denied a proper and complete hearing of the Wintersun application to the applicant contrary to the requirement for procedural fairness to be afforded to an applicant for a licence under the Act in that, the disposition of PDJ's variation application necessarily, alternatively potentially, affected the disposition of the Wintersun application, as both applications were founded upon the public interest in a facility which catered for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State and the diversity of the requirements of consumers in the State;
(e)the Director should have exercised his discretion under s 24(11) of the Act to refer PDJ's variation application to the Liquor Commission to be heard and determined with the Wintersun application in order to accord the applicant procedural fairness as described in ground (d) above; and
(f)the applicant was not afforded the opportunity to make submissions and adduce evidence regarding PDJ's variation application and therefore there was a denial of procedural fairness to the applicant in the decision-making process.

Declaration sought by the applicant

The applicant seeks a declaration in the following terms:
On a proper construction of the Liquor Control Act 1988 (WA), the application of the First Other Party (PDJ) dated 17 March 2017 for an extension of time made under s 62(6) of the Act and the application of the Applicant lodged on 17 November 2015 for the alteration and redefinition of the existing liquor licence for the Wintersun Hotel and BWS bottle shop made under ss 68 and 77 of the Act must be considered together and determined by the same decision-maker.

The public interest issue - grounds (a) (b) and (c)

The applicant's submissions

The primary propositions upon which the applicant's grounds of review (a), (b) and (c) are based are as follows:
(a)There is a statutory requirement to determine applications under the Act by reference to the public interest.
(b)A relevant aspect of the public interest as recorded in the primary objects of the Act is to cater for the requirements of consumers of liquor and related services with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
(c)Where there is more than one application for a licence that seeks to cater for the consumer requirements in a particular area a proper assessment of the public interest cannot be undertaken unless the applications are considered together.
(d)The Wintersun application and the PDJ variation application are interrelated and should have been heard and determined together.
In support of its primary propositions the applicant advances the following contentions:
(a)The grant of a licence under s 62 of the Act is not 'legally complete' until the licence is confirmed under s 62(9). It is only when the licence is confirmed that a licence holder has authority to sell or supply liquor without contravening s 109. In support of this contention the applicant draws attention to the fact that a 'conditionally granted licence' may be cancelled or suspended on the various grounds set out in s 62(7), s 62(8) and s 62(10) with immediate effect and contrasts these provisions with the requirement for a period of suspension in advance of cancellation of other licences required by s 91 - 93.
(b)The holder of a licence granted under s 62, but which has yet to be confirmed, who applies for a variation of the conditions to which the grant was subject, must satisfy the licensing authority that the granting of the application to vary the conditions is in the public interest. That is, before the licensing authority can vary the conditions the licence holder must satisfy the 'public interest test' in s 38(2) of the Act.
(c)PDJ's variation application was not an application to vary the conditions of an 'effectively granted licence' authorising the sale of liquor. Rather it was a step in the statutory process for the granting of a licence that would, if successful, authorise the sale of liquor.
(d)The PDJ licence application and the Wintersun application are competing and interrelated applications. The grant of one application necessarily, or, at least potentially, has a material effect upon the ability of the other application to satisfy the public interest criterion in s 38(2), in particular, the public interest in catering to the requirements of the consumers of Geraldton by the establishment of a large format liquor store in Geraldton.
(e)The public interest questions as to which application (if either) will better cater for the relevant consumer requirements and which will better minimise harm or ill-health due to the use of liquor can only be properly determined if the applications are heard together. To suggest otherwise would require the public interest is to be determined in artificial isolation from reality in a manner inconsistent with the statutory objects.
(f)The extension of time granted to PDJ was 18 months which was significantly longer than the original grant of 12 months and this reinforces the need for the application of the public interest test to be applied.
(g)Had the circumstances pertaining to PDJ's application for the initial grant of a licence under s 62 remained unchanged when it came to make the variation application, then the decision to grant the extension may have been straightforward. The applicant contends that the decision-maker must address the public interest test in circumstances when an interrelated application is before the decision-maker, the only manner in which the public interest test can be applied is for the two applications to be considered together.
(h)The Act does not provide that the first application for a liquor licence which will satisfy a consumer requirement in a particular location is to be given preferential consideration over the second or subsequent application in the same area. An application to extend the time for the construction of premises to which a licence granted under s 62 applies, must satisfy the public interest in the light of the circumstances prevailing at the time of the application for the extension, which in this case included a competing application designed to cater for the same consumer requirements.
(i)An extension of time should not be granted as a matter of course or by 'some cursory administrative function'.

Intervenor's submissions

The intervenor's submissions linked grounds (a) and (e). The intervenor submitted the grounds are misconceived because:
(a)The public interest test does not oblige the respondent or the Commission to exercise the discretion under s 16 of the Act in a particular manner.
(b)The public interest test does not apply to s 16 of the Act.
(c)Section 38 of the Act does not apply to PDJ's variation application.
(d)The applicant's ground of review is futile as it would not have the effect sought by the applicant.
The intervenor characterises the power that arises from s 16(1)(d) to hear applications together as an independent discretionary power. The intervenor points out that the subsection does not, however, confer an express power to hear applications together. The intervenor submitted that the power to hear applications together must arise from the power in s 16(1)(d) to determine applications in such a manner as the licensing authority thinks fit.
The intervenor contends that the public interest test in either s 33 or s 38 does not apply to the exercise of the discretion under s 16(1)(d). Sections 33 and 38 are concerned with applications under the Act. A request made to the licensing authority to determine two or more applications together is not 'an application under [the] Act' which enlivens either s 33 or s 38. The intervenor says those provisions identify the matters that the licensing authority is to have regard to when determining applications but they say nothing about the procedure and manner by which applications are to be heard and determined - the powers in s 16 and those in s 33 and s 38 are entirely separate.
The intervenor submits that it is not correct to say that a licence granted under s 62 is legally incomplete until it is confirmed for two reasons. First, such a construction is at odds with the operation of s 62 of the Act in that whilst it is true that an applicant cannot lawfully engage in the sale of liquor before confirmation, a grant entitles the applicant to proceed with construction of premises for that purposes. Secondly, the applicant's construction is contrary to s 62(6)(b) which expressly assumes that a conditional licence has been granted. The intervenor argues that the effect of the applicant's construction is that there would be no difference between s 62(2) and s 62(6) and an application under s 62(6) would, in effect, be treated as an application made afresh under s 62(2). The intervenor says that this would be contrary to the canon of statutory construction that all provisions should, as far as possible, be given their full and ordinary effect.
The intervenor submits that the applicant's construction that an application under s 62(6) is 'an application for the grant or removal of a licence' within the meaning of s 38(1)(a) should not be accepted for five reasons. First, such a construction conflates two stages in the process, the first being the imposition of conditions on grant, at which stage s 38 applies, and the second being the variation of conditions at a later point. Secondly, there is no basis for construing s 38(1)(a) in a manner more expansive than permitted by the ordinary meaning of the words 'an application for the grant of a licence'. Those words do not lend themselves to the inclusion of an application which arises subsequent to the grant of the initial application. The absence of a basis for construing s 38(1)(a) more expansively is reinforced by the presence of s 33 which provides that the licensing authority has an absolute discretion to grant or refuse an application under this Act on any ground that the licensing authority considers in the public interest. Thirdly, the applicant's construction mischaracterises the nature of an application under s 62(6)(b). Section 62(6) assumes the existence of an already granted licence. The applicant's construction ignores that assumption which arises from the text of s 62(6)(b) which refers to 'conditions to which the licence is subject'. Fourthly, the intervenor says that in construing s 38(1)(a) expansively the applicant is importing into the Act what it considers to be the preferable policy of the Act, namely, that the conditions attaching to the licence will affect whether the licence serves the public interest and therefore an applicant must satisfy the licensing authority that any alteration is also in the public interest. The intervenor submits that the court should be cautious before employing its own understanding of the underlying policy of the Act where no such policy is evident from the text. The intervenor points to s 62(7), (8), (9) and (10) which, taken as a whole, evidences an intention that once an application has been granted some variation in the conditions may occur without the impost of making a fresh application for the grant of a licence. Fifthly, the intervenor submits that the applicant's argument - that its expansive construction of s 38(1)(a) is required because if s 38(2) did not apply to applications to vary conditions this would encourage non-compliance with conditions - cannot be accepted. The intervenor contends that the powers conferred upon the Director by s 62(8) to (10) are sufficient to ensure compliance with conditions.
The intervenor supports its submission that, if the respondent had referred the PDJ variation application to the Commission pursuant to s 24 - as the applicant contends by its ground (e) he should have done - this would not have achieved the outcome sought by the applicant and would thus have been futile, by pointing out that the applicant is contending that two successive independent exercises of discretion were required: one by the respondent as the Director's delegate to refer the application to the Commission; and one by the Commission to hear the PDJ variation application at the same time as the Wintersun application.
The intervenor submits that the effect of the applicant's submissions is to import into the Act an implicit obligation that applications which concern the same geographical area must be heard and determined simultaneously. The intervenor says that there is no textual or contextual basis for implying such an obligation.
The intervenor rejects the applicant's characterisation of the determination of the PDJ variation application as conferring a right of priority on PDJ.
The intervenor accepts that the conditional grant of the licence to PDJ is relevant to the Wintersun application and to the assessment of whether the Wintersun application is in the public interest. The intervenor submits, however, that the Wintersun application is not thwarted by the conditional grant of the licence to PDJ nor will it necessarily succeed or fail dependant on whether the respondent's decision to grant PDJ's extension of time is quashed.
The intervenor submits that it should be presumed that when the respondent made his decision he had regard to PDJ's letter of 17 March 2017 that outlined the reasons why PDJ sought an extension of time. One of those reasons was the Wintersun application. The absence of any mention of the Wintersun application in the respondent's letter to PDJ informing it of his decision is an insufficient basis to support a conclusion that the respondent failed to give any consideration to the Wintersun application.

Disposition - Public interest issue

The PDJ variation application did not attract the operation of s 38(2).
Grounds (a), (b) and (c) rest on the premise that the 'public interest test' in s 38(2) applies to an application under s 62(6) to vary the conditions to which a licence granted under s 62(2) is subject. I do not accept that premise. Nor do I accept the foundation for it advanced by the applicant, namely that a licence granted under s 62(2) is not an 'effectively granted licence' until it is confirmed under s 62(9) with the consequence - for which the applicant contends - that an application to vary the conditions must treated as if it were an application for a licence to which s 38(2) applies.
The express provisions of the Act do not support the applicant's contention that a licence granted under the Act is not an 'effectively granted licence' unless it authorises the sale of liquor. As noted earlier a licence is defined simply as ‘a licence granted under the Act’.[19] There is no warrant for reading down this wide definition to mean a licence authorising the sale of liquor. The proposition that what is granted by the licensing authority pursuant to s 62(2) is a licence is made plain by the language used. Section 62(2) authorises the licensing authority to grant a ‘licence of the class sought’ or to remove a licence as the case may be. Sections 62(3) and (4) refer to '[a] conditional grant of a licence'; s 62(6) refers to the holder of 'a licence conditionally granted or removed'; s 62(8) and (9) refer to the licence; s 62(10) refers to the power of the Director to cancel the licence without notice.
[19] Liquor Control Act1988 (WA) s 3.
An application to vary conditions of a licence granted under s 62(2) is not an application for a licence to which s 38(2) applies. This conclusion flows from the legal conclusion that what is granted under the power conferred on the licensing authority by s 62(2) is a licence under the Act.
Holding that an application to vary conditions made under s 62(6) does not attract the operation of s 38(2) does not mean the discretion vested in the licensing authority by s 62(6) is unconstrained. It must be exercised having regard to the objects of the Act as set out in s 5. Similarly, the discretions conferred on the licensing authority by s 16(1) must be exercised having regard to the s 5 objects.
Once it is accepted that PDJ holds a licence granted under the Act it can be seen that the proposition on which ground (b) is based - that the determination of the PDJ variation application prior to the determination of the Wintersun application is tantamount to giving PDJ a priority - is not valid. The applicant's submissions incorrectly characterise PDJ's variation application as part of PDJ's application for a licence as distinct from an application to vary a condition of a granted licence.
Further, contrary to the applicant's submissions, there is no evidentiary basis for concluding either that the respondent dealt with the PDJ variation application as 'a matter of course or by some cursory administrative function' or that the respondent did not consider the Wintersun application when determining PDJ's variation application. As to the latter, as the intervenor submits, PDJ's letter dated 17 March 2017 identified the Wintersun application as one of the grounds of the application to vary. That being so it is unlikely that the Wintersun application was not considered in the context of the PDJ variation application.
For the reasons given above the applicant has not made out the fundamental premise on which grounds (a), (b) and (c) depend. Those grounds do not reveal any jurisdictional error on the respondent's part.

Natural justice issue

The parties' submissions

There was no dispute about the essential principles and I refer to these in more detail below.
The applicant's submissions involved two propositions:
(a)The applicant had a 'proper' right to procedural fairness in the determination of the Wintersun application. There was a requirement for a complete hearing of the Wintersun application which right was denied when the PDJ variation application was granted without any hearing of the Wintersun application.
(b)The applicant sought the opportunity to make submissions and adduce evidence on PDJ's application but was refused the opportunity and was thereby denied procedural fairness.
The intervenor accepts that the rules of procedural fairness are applicable to a decision-maker such as the respondent when exercising powers under the Act but submits that the respondent did not owe the applicant an obligation of procedural fairness when determining PDJ's application for the following reasons:
(a)The applicant cannot demonstrate that the PDJ variation application affected 'its rights, interests or legitimate expectations' as required to establish that it was owed a duty to be afforded procedural fairness.
(b)The intervenor submits that there was no practice which would provide the applicant with a legitimate expectation that the Wintersun application would be dealt with at the same time as PDJ's variation application.
(c)The intervenor submits that the fact that an application may have adverse business or economic consequences on a third party is insufficient to attract an obligation to afford that person procedural fairness. The intervenor contends that it is only if the grant of the application has the effect of precluding or extinguishing another's application for a licence altogether that a right to be heard arises and that, so it is contended, is not the position in this case. The grant of PDJ's variation application does not thwart the Wintersun application.
(d)The Act is not concerned with the protection of the commercial interests of licence holders or applicants for licences.

Ground (f)

It is convenient to consider ground (f) first. This ground asserts that the applicant was denied procedural fairness because it was not afforded the opportunity to make submissions and adduce evidence regarding PDJ's variation application.
It is well established that the principles of natural justice regulate the exercise of a statutory power where the statute confers the power to destroy or prejudice a person's rights or interests.[20]
[20] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [11].
In this context the concept of rights or interests is a wide one, it extends to personal liberty, preservation of livelihood and reputation as well as proprietary rights and financial rights.[21]
[21] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J) and 616 - 619 (Brennan J).
The question of whether the exercise of a statutory power is conditioned by the observance of the principles of natural justice is a question of construction that demands a universal answer. It is the threshold question. If answered affirmatively the second question is: what is required by the principles of natural justice in the circumstances of the particular case?[22] In Saraceni v Australian Securities and Investments Commission[23] Jacobson J explained:[24]
The [second] question, unlike the first question, turns in part upon the statutory context and in part upon the circumstances of the particular case. That is why the courts have so often referred to the flexible nature of the principles of natural justice. But that statement addresses the content of the obligation if it is found to exist as a matter of statutory construction.
[22] Kioa v West at 612 (Brennan J).
[23] Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42; (2013) 211 FCR 298.
[24] Saraceni v Australian Securities and Investments Commission [74].
In determining what is required by the principles of natural justice - that is, what the content of the duty is in any particular case - regard must be had to the terms, scope and purpose of the statute under which the relevant power has been exercised.[25]
[25] Kioa v West (619) (Brennan J).

Did the applicant have a sufficient interest?

It was common ground that the exercise of statutory powers by the licensing authority is conditioned by the obligation to observe the rules of natural justice. The essential question raised by ground (f) is whether the applicant had a sufficient interest to give rise to right to be heard on the PDJ variation application.
The applicant is a stranger to the PDJ variation application. As noted in the intervenor's submissions the applicant did not attempt to participate as a party in PDJ's licence application before the Director or in the subsequent application for review before the Liquor Commission. The circumstances in which a stranger to the application of another has the right to be heard in that application depends on a careful consideration of the interest of the stranger.[26]
[26] Kong v Minister for Health [2014] FCAFC 149; (2014) 227 FCR 215 [182] (Pagone J).
In the applicant's written submissions it did not identify the nature of its interest. In oral submissions senior counsel for the applicant described the applicant's interest in the following terms: 'the potential for the complete preclusion of the success of our application is the manifest interest here'.[27] Thus the applicant's interest is a commercial interest.
[27] ts 71.9
Whether a competitor’s commercial interests are sufficient to attract the requirements of procedural fairness is an issue that has often proven difficult to determine.[28] In Argos Pty Ltd v Minister for the Environment and Sustainable Development[29] the High Court held that owners of supermarkets who were likely to suffer a loss of profitability as a result of a planning decision approving the implementation of a proposed development were persons aggrieved for the purposes of s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) and thus had standing to apply to have the decision reviewed. As the judgments in Argos make clear questions of standing involve questions of fact and degree. The same may be said of determining whether a party’s interest is sufficient to attract the protection of procedural fairness.
[28] Judicial Review of Administrative Action and Government Liability (6^th Edition) Aronson Groves and Weeks [7.90] at p 420 - 421
[29] Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 254 CLR 394
I am not satisfied that the applicant's commercial interest is sufficient to attract the protection of the rules of natural justice. My first and primary reason for reaching this conclusion is that the protection of the applicant's commercial interests is not within the scope and purpose of the Act as defined by the s 5 objects.[30] I have set out the primary and secondary objects at [15] and [16] and it is unnecessary to repeat them, but in my view the commercial interests of businesses involved in the liquor trade are not within those objects.
[30] cf Pagone J's observations at [183] in Kong v Minister for Health.
Secondly, the interest that the applicant contends attracts the protection of the requirements of procedural fairness is not its existing business but the possibility of expanding that business in the event that the Wintersun application is successful. The applicant’s interest is a contingent interest that is inherently uncertain - one that can be characterised as a reduction in the prospects of the Wintersun application succeeding - a loss or reduction of a chance. Whether an interest is sufficient to attract the requirements of procedural fairness is an evaluative judgment and, in my view, the applicant’s interest is not sufficient because it is inherently uncertain in nature.
My third reason for concluding that the applicant's interest is not sufficient to attract the protection of the rules of natural justice is because imposing such an obligation - which would carry with it a requirement to give notice to those potentially affected by a decision - would impose upon the licensing authority 'a potentially massive task of indeterminate reference' not required by the scope and purpose of the Act.[31] Had the legislature intended that businesses (whose commercial interests might be affected by a variation to the conditions to which a licence granted under s 62 was subject) were entitled to be heard on the application, one would have expected that the Act would have imposed an obligation on the applicant to advertise or otherwise give notice to those potentially affected by the proposed variation in conditions. It is not a satisfactory answer to the concern - that requiring the licensing authority to give notice to and hear those whose commercial interests might be affected by a variation in conditions is 'a potentially massive task' - to say that in this case the task was not onerous because the applicant had made its interest known. The statutory context must be considered broadly and not through the narrow focus of the facts of this case.
[31] Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589, 597.

Ground (f) is not made out.

Ground (d)

Ground (d) asserts that granting the PDJ variation application had the effect of denying the applicant a proper and complete hearing of the Wintersun application. The applicant's case on ground (d) rested on reasoning by analogy with the approach taken by the Court of Appeal in Polo Enterprises Australia Pty Ltd v Shire of Broome.[32]
[32] Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134.
Polo Enterprises concerned competing applications by separate parties to the Shire of Broome for permits to conduct a polo tournament on Cable Beach. The Shire resolved to authorise its CEO to issue permits to one party, CBP, allowing it to conduct beach polo tournaments on Cable Beach on specified dates in 2014, 2015, 2016 and 2017.[33] The appellant's competing application was for a permit to conduct a tournament at the same time and place as CBP's 2014 application granted by the Shire. The relevant consequence was that 'the two events [were] literally and physically incapable of occurring simultaneously'.[34] Martin CJ described the application by CBP and the appellant's application as being in 'direct and inexorable conflict' and distinguished that situation from a situation in which a decision to grant an application might have a collateral or tangential effect upon another pending application.[35]
[33] Polo Enterprises Australia Pty Ltd v Shire of Broome [34].
[34] Polo Enterprises Australia Pty Ltd v Shire of Broome [38].
[35] Polo Enterprises Australia Pty Ltd v Shire of Broome [68].
As characterised by Martin CJ (with whose reasons Newnes and Murphy JJA agreed):[36]
The real question was whether [the appellant] was entitled to procedural fairness in respect of its application in a circumstance in which the grant of CBP's application necessarily resulted in the refusal of [the appellant's] application - in other words, whether [the appellant] was entitled to procedural fairness in respect of its application.
[36] Polo Enterprises Australia Pty Ltd v Shire of Broome [115].
In relation to the issue of procedural fairness, Martin CJ referred to the requirement of the regime created by the applicable local government law that any application for a permit be considered on its merits and concluded:[37]
Plainly that did not occur in the case of [the appellant's] application for a permit…The Shire exceeded its jurisdiction in purporting to refuse [the appellant's] application by purporting to grant CBP's application without considering [the appellant's] application. It follows that the Shire's decision to grant CBP's application for a permit to conduct a beach polo tournament on Cable Beach in May 2014, and thereby refuse [the appellant's] application, was vitiated by jurisdictional error.
[37] Polo Enterprises Australia Pty Ltd v Shire of Broome [116].
The present case can be distinguished from Polo Enterprises. The grant of the PDJ variation application cannot be said to be in direct and inexorable conflict with the grant of the Wintersun application. Whilst there may be a relationship between the PDJ variation application and the Wintersun application, the grant of the PDJ variation application did not preclude the success of the Wintersun application.
Polo Enterprises does not provide support for ground (d). Other than to assert that the grant of the PDJ variation application denied the applicant its right to a complete hearing of the Wintersun application, the applicant did not suggest a particular construction of the Act or invoke any other principle to support ground (d).
Ground (d) is not made out.

Ground (e)

Ground (e) depends on ground (d). Accordingly, ground (e) fails.

Conclusion

The application is dismissed. I will hear the applicant and intervenor in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
ASSOCIATE TO THE HONOURABLE JUSTICE TOTTLE
31 MAY 2018