Coote v State of NSW and the Independent Liquor and Gaming Authority

[2016] NSWSC 1492

Supreme Court

New South Wales

Medium Neutral Citation:	Coote v State of NSW and the Independent Liquor and Gaming Authority [2016] NSWSC 1492
Hearing dates:	10 August 2016
Date of orders:	28 October 2016
Decision date:	28 October 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1.   The proceedings are dismissed. 2.   The plaintiff is to pay the first defendant’s costs    as agreed or assessed.
Catchwords:	STATUTORY INTERPRETATION – Application for extended trading hours – Statutory requirement to advertise application by affixing notice to premises – Where notice not fixed for an extended period – Whether the validity of the application depended upon strict compliance with the notice provisions – Whether substantial compliance was sufficient – Proceedings dismissed
Legislation Cited:	Gaming and Liquor Administration Act 2007 (NSW) Interpretation Act 1987 (NSW) Liquor Act 2007 (NSW) Liquor Regulation 2008 (NSW)
Cases Cited:	Coordinated Construction Company Pty Limited v Climatech (Canberra) Pty Limited [2005] NSWCA 229 Lloyd v Police (2004) 89 SASR 383; [2004] SASC 278 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Category:	Principal judgment
Parties:	Craig Allan Coote – Plaintiff State of NSW – First defendant The Independent Liquor and Gaming Authority – Second defendant
Representation:	Counsel:    M Robinson SC and S McGee – Plaintiff J Emmett – Second defendant   Solicitors: Slater and Elias Lawyers Pty Limited – Plaintiff Crown Solicitor for NSW – Second defendant
File Number(s):	2016/64734
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By summons filed on 29 February 2016 Craig Allan Coote (“the plaintiff”) seeks orders in the following terms:

1. An order in the nature of certiorari or alternatively a declaration setting aside or declaring invalid the decision of the second defendant, made on 6 January 2016, declaring and thereby refusing the plaintiff’s application for extended trading hours, application #1-2515098909, invalid by reason of its alleged non-compliance with clause 9 of the Liquor Regulation 2008 (NSW) (“the Regulation”) in respect of the Gladstone Hotel, located at 572 Marrickville Road, Dulwich Hill, licence number LIQH400102518 (“the decision”).

2. A declaration that, or to effect that, the plaintiff’s application for extended trading hours, application no #1-2515098909 was and is valid and the second defendant has authority or power to determine it.

3. An order in the nature of prohibition or alternatively an injunction preventing the defendants or any of its officers, servants or agents from acting on, or taking any further step in reliance on, the decision.

4. An order in the nature of mandamus sending the matter to the second defendant to be determined according to law.

5. Costs.

2. In support of the summons, an affidavit of the plaintiff of 25 February 2016 was read, along with an affidavit of Ryan Timothy Watts, solicitor, of 25 February 2016. That material, along with the exhibit to the affidavit of Mr Watts, was contained in a Court Book which was tendered by consent and marked Exh. A.

3. The first defendant was the only active defendant in the proceedings, the second defendant having filed a submitting appearance.

FACTUAL BACKGROUND

4. The factual background is not in dispute and may be summarised as follows.

The parties

5. The plaintiff is a director of Coote Hotels Pty Limited, which owns and operates the Gladstone Hotel at Dulwich Hill (“the hotel”). The plaintiff is also the licensee of the hotel.

6. The second defendant, the Independent Liquor and Gaming Authority (“the Authority”) is a statutory corporation created pursuant to s. 6 of the Gaming and Liquor Administration Act 2007 (NSW).

The plaintiff’s application for an extended trading authorisation

7. On 27 June 2014 the plaintiff made an application to the Authority for an extended trading authorisation (“ETA”) for the hotel pursuant to s. 49(2) of the Liquor Act 2007 (NSW) (“the Act”). For the purposes of that application, a “Site Notice and Notice of Application to Neighbouring Premises and Other Stakeholders” (“the notice”) was affixed to the hotel premises on 27 June 2014. It was also distributed, by hand, to occupiers of buildings within a 100 metre radius of the hotel, as well as being sent to community and Government stakeholders by the plaintiff’s solicitors.

8. At its meeting on 4 March 2015, the Authority refused the plaintiff’s application. It is not necessary for the purposes of this judgment to canvass the Authority’s reasons for its determination on that occasion. However, it is relevant to note that shortly after that determination, the notice was removed from the hotel premises.

The plaintiff’s successful challenge to the Authority’s determination

9. On 27 May 2015 the plaintiff commenced proceedings in this Court seeking judicial review of the Authority’s determination to refuse its application for an ETA. On 26 June 2015, orders were made by consent in those proceedings setting aside that determination, and remitting the matter to the Authority for redetermination according to law.

Correspondence subsequent to the matter being remitted to the Authority

10. By letter of 11 September 2015, the plaintiff’s solicitor wrote to the Chief Executive of the Authority, effectively making further submissions in support of the plaintiff’s application, and setting out what was said to be the appropriate procedure to be adopted in determining such application in light of its history. The letter stated (in part):

4. The Applicant submits that, in the circumstances of this case, the appropriate approach by the Authority is to:

Consider the ETA Application afresh;

Give notice to the Applicant of any adverse matters that the Authority considers relevant to its consideration;

Give the Applicant an opportunity to address any matter the Authority may consider is adverse to the ETA Application.

11. The letter requested that the Authority notify the plaintiff of any matters about which the plaintiff was not otherwise aware, and which might be viewed by the Authority as being adverse to the application.

The absence of the site notice

12. As noted in [8] above, the notice which had been affixed to the hotel premises was removed at some time shortly after the Authority’s original determination.

13. On 22 September 2015, the Authority wrote to the plaintiff’s solicitor in response to his letter of 11 September 2015, drawing his attention to the absence of the notice:

Thank you for your letter of 11 September 2015 providing further information in relation an application for an Extended Trading Authorisation for the Gladstone Hotel, Dulwich Hill.

In preparing the material for the Authority members’ consideration at the upcoming meeting, a member of staff attended the premises to confirm that the site notice remains affixed in accordance with clause 9(2) of the Liquor Regulation 2008.

The site notice could not be located and I have enclosed a series of photos to show that on the afternoon of 21 September 2015, the site notice was not displayed. Based on advice, the Authority believes that the absence of a site notice is without remedy, and as such, is required at law to refuse the application.

I recommend that your client considers withdrawing the current application and begins the process anew. Should your client adopt this course of action, the Authority would be open to reducing the 30 day submission period to expedite a new application.

Alternatively, should your client wish to persist with the current application, you are invited to provide a submission detailing why the Authority should accept your client’s position on this question. Any submission must be provided by the close of business on 25 September 2015 if the application is to be considered at the next Authority meeting scheduled for 2 October 2015.

14. On 16 October 2015 the notice was re-affixed to the hotel premises. It follows that there was no notice of the application affixed to the premises between some time shortly after 5 March 2015 and 16 October 2015.

15. On 20 October 2015 the plaintiff’s solicitor responded to the Authority’s letter of 22 September 2015 by setting out what were said to be a number of agreed facts. Those agreed facts covered the history of the plaintiff’s application, including the circumstances in which proceedings had been commenced in this Court and resolved by the making of consent orders. They also recorded (at (10) and (11)) the terms of the correspondence which had passed between the Authority and the plaintiff’s solicitor on 12 September 2015 and 22 September 2015, as well as the circumstances of the re-affixing of the notice to the hotel premises (at (12)). The letter then went on to explain the circumstances in which the notice had been removed from the premises, stating:

Our client instructs that the subject site notice was physically removed from the premises shortly after the Authority made its decision on 4 March 2015 (“the date of determination”) refusing the application for extended trading authorisation.

As at that time, there was a purportedly valid legislative determination and the legislative requirement for the Applicant to affix (and retain) a notice of the Application to the premises, pursuant to Reg 9 of the Regulations, had been fulfilled. Accordingly, the Applicant was lawfully able to remove it. The decision of the Authority (as at that point in time) had full legal effect and the Application had been “determined” for the purposes of reg 9(2) of the Regulations.

16. Having recounted the history of the previous proceedings, the letter stated:

The Authority’s decision here was valid until it was set aside by the Supreme Court.

The notice of application was lawfully removed from display (as it were) from that point onward.

We are instructed it has now been reinstated in its proper place and it is on full public display on and from 16 October 2015.

Our client should not have to be required to furnish a new application by the Authority. Its original Application has not yet been lawfully determined. The Supreme Court has exercised its supervisory jurisdiction to that effect.

Given that the relevant period of the Authority’s deliberation has now recommenced, it is appropriate for the Authority to construe the regulations lawfully and to regard the notice of application as still being on display within the meaning of Regulation 9(2).

If this were not the case, there would be little point on (sic) troubling the Supreme Court to set aside a past decision.

Regulation 9 is and has been fully complied with and therefore our client requests that the Authority proceed with its determination of the application as soon as possible.

The Authority’s further determination of the plaintiff’s application

17. In an email to the plaintiff’s solicitor of 23 October 2015, the Manager (Licensing) of the Authority advised that the plaintiff’s application would be prepared for the Authority’s meeting which was scheduled to take place on 17 November 2015. In an email of 26 October 2015, the plaintiff’s solicitor enquired of the Authority:

Could you please clarify what will be before the Authority on the 17 November 2015. Is it the jurisdictional question or the re-consideration of the Application or both?

18. The Authority responded by email of 29 October 2015 advising that both issues would be considered.

19. Subsequently, the Authority released a document headed “Meeting Outcomes” which stated the following:

The Independent Liquor and Gaming Authority (“Authority”) held a meeting on Wednesday 25 November 2015, to consider, amongst other things, applications under the Liquor Act 2007.

Following the closure of the public and stakeholder and consultation processes in relation to each of them, these application for new liquor licences (incl. authorisations), or for changes to existing liquor licences were considered by the Authority and a short description of each outcome is listed below:

…

Application for an Extended Trading Authorisation – Gladstone Hotel DULWICH HILL – No jurisdiction to consider

…

Formal notification will be provided to the applicant or their representative, by the Authority’s licencing staff and where applicable, a statement of reasons will be provided and published as soon as practicable when this document becomes available. It should be noted that this is a volume jurisdiction and statement of reasons may take up to 2 months to produce.

Events following the Authority’s determination

20. In an email of 16 December 2015, the plaintiff’s solicitor wrote to the Authority stating:

We are writing to inform the Authority that we find it disappointing to find out the Outcome of our client’s Application by way of “notice” especially with reference to the requests below.

We request the Authority issue a Statement of reasons for our clients’ (sic) Application “outcome” (sic) as soon as possible so that my client may properly consider its position.

21. In a subsequent letter to the Authority of 4 January 2016 the plaintiff’s solicitor stated (inter alia):

We refer to the Authority’s letter of the 22nd of September 2015 and our submissions of 20th October 2015 and can only assume that the Authority took the view that the advertisement of the Application needed to continue until the final determination and that “based on advice, the Authority believes that the absence of the site notice is without remedy, and as such, is required at law to refuse the Application.

We note that on the 24th of September 2015 we requested details of this advice however the Authority was not minded to provide same see your email of the same date.

We note that the Outcome of the meeting of the 25th November 2015 as per the above notation is neither a grant, refusal or adjournment.

Accordingly based on the Authority’s correspondence of the 22nd September 2015 we conclude that the outcome of the Application is a refusal.

As you can appreciate our client is anxious to resolve this Application and in the absence of reasons for the decision will proceed on the basis that the Application has been refused.

If any part of this letter is disputed please let us know as soon as possible (emphasis in original).

22. Under cover of a letter of 6 January 2016 the Authority forwarded its reasons to the plaintiff’s solicitors. The covering letter reviewed the history of the application before stating:

As part of the Authority’s preparation for the Application to be determined by the Authority, Authority staff observed that the notice required to be displayed by an Applicant on the site of a licensed premises under clause 9 of the Liquor Regulation 2008 was not displayed on the Premises.

In a letter dated 22 September 2015, the Applicant was advised of the Authority’s view that an application that does not comply with clause 9 of the Regulation is invalid. The Applicant was invited to remake the Application or alternatively, to provide further submissions as to why the Authority has jurisdiction to consider the merits of the Application, notwithstanding the apparent non-compliance with the Regulation.

Following the receipt of further submissions from the Applicant’s solicitors on this jurisdictional issue, the Authority reconsidered the matter at its meeting on 25 November 2015 and decided that it does not have jurisdiction to consider the merits of the Application by reason of the Applicant’s non-compliance with clause 9 of the Regulation.

23. I have set out the relevant parts of the Authority’s reasons below.

THE RELEVANT LEGISLATION

24. Before turning to consider the grounds relied upon by the plaintiff it is appropriate to set out three relevant legislative provisions which bear upon the present issues.

25. Firstly, s. 3 of the Act sets out its objects:

3 Objects of Act

(1) The objects of this Act are as follows:

(a) to regulate and control the sale, supply, and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community,

(b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality,

(c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries.

(2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following:

(a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour),

(b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor,

(c) the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life.

26. Secondly, s. 51 of the Act is in (inter alia) the following terms:

51 General provisions relating to licence-related authorisations

(1) This section applies to the following authorisations granted by the Authority under this Act:

(a) an extended trading authorisation,

(b) …

(c) …

(d) …

(e) …

(2) An application for an authorisation to which this section applies must:

(a) be in the form and manner approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary), and

(b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and

(c) if required by the regulations to be advertised-be advertised in accordance with the regulations, and

(d) comply with such other requirements as may be approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary) or prescribed by the regulations.

(3) In determining an application for an authorisation, the Authority has the same powers in relation to the application as the Authority has in relation to an application for a licence. The Authority may determine the application whether or not the Secretary has provided a report in relation to the application.

…

27. Thirdly, cl. 9 of the Regulation is in the following terms:

9 Notice relating to application to be fixed to premises

(1) If an application is made to the Authority, a notice relating to the application that is in the form approved by the Authority must, within 2 working days of making the application, be fixed by the applicant to the premises to which the application relates.

(2) The notice must be fixed to the premises until such time as the application is determined by the Authority.

(3) If premises have not been erected, the requirement to fix a notice relating to an application may be satisfied by fixing the notice to a notice board erected on the land on which it is proposed to erect the premises.

(4) A notice is not fixed to premises or land in accordance with this clause unless:

(a) it is fixed to the premises or land in such a position that it is legible to members of the public passing the premises or land, and

(b) if the Authority has directed that it also be fixed in another specified position-it is also fixed in that other position.

(5) This clause applies in relation to a licence-related authorisation only if it is:

(a) an extended trading authorisation, or

(b) a drink on-premises authorisation, or

(c) an authorisation under section 24 (3) of the Act.

(6) This clause does not apply in relation to an application for a limited licence.

THE GROUNDS OF REVIEW

28. The plaintiff relies on three grounds of review, although at the hearing the principal focus was on ground 1.

Ground 1 – The Authority erred by incorrectly interpreting the application of cl. 9 of the Regulation

The Authority’s reasons

29. Commencing at [95] the reasons of the Authority stated the following:

95. While this Application for an extended trading authorisation is a “relevant application” for the purposes of s. 48(2) of the Act, the Authority has not reached the point where it can make findings on the community impact test prescribed by s. 48(5) of the Act by reason that the Application is not valid on the basis on the Applicant’s non-compliance with clause 9 of the Regulation, as discussed below, and so the Authority lacks jurisdiction to deal with it on its merits.

REASONS

96. The principles governing the circumstances in which failure to comply with conditions regulating the exercise of a statutory power will lead to invalidity were set out by the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky). A majority of the High Court (McHugh, Gummow, Kirby and Hayne JJ) observed the following, at 388-389 [91]:

… An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment.

97. Their Honours also observed that, where “public inconvenience would be a result of the invalidity of the Act”, it is “unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid” (at 392 [97]).

98. In the Authority’s view, the words of clause 9 of the Regulation are clear. A notice in the prescribed form “must” be affixed to the proposed licensed premises not later than two days after the making of an application and the notice “must remain affixed” to the premises “until such time as the application is determined by the Authority”.

99. The Authority considers that the underlying purpose of clause 9 is to ensure that an applicant provides continuous notice of an application to passers-by, throughout the prescribed period, so that those in the local or broader community who may pass by the premises or the land in question are alerted to the application, thus enabling them to make submissions to the Authority if they wish to do so.

100. The obligation imposed by clause 9 of the Regulation is not a particularly onerous one to comply with in a practical sense. It will, in most instances, involve affixing the prescribed notice to the inside of a window of the relevant premises, in a position where it is legible to a passer-by.

101. The notice must be affixed not later than two days after an application has been made to the Authority and then remain affixed until such time as the Authority validly determines that application.

102. While there is no binding superior Court authority on the proper interpretation of clause 9 of the Regulation, the Authority considers that, in light of the Project Blue Sky principles, an application that does not comply with this clause is invalid and the Authority does not have jurisdiction to grant that application. The Authority has acted on this basis in relation to a significant number of applications over the years and its interpretation has not been the subject of judicial challenge or review.

103. Relevantly to this Application for an extended trading authorisation, section 51(2) of the Act states:

(2) An application for an authorisation to which this section applies must:

(a) be in the form and manner approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary), and

(b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and

(c) if required by the regulations to be advertised - be advertised in accordance with the regulations, and

(d) comply with such other requirements as may be approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary) or prescribed by the regulations.

104. The requirements of section 51(2)(c) of the Act and clauses 7 to 9 of the Regulation are, in the Authority’s view, properly characterised as “conditions” regulating the exercise of the Authority’s power under section 51 of the Act to grant a licence-related authorisation, even though it is the applicant and not the Authority who is required to advertise the application.

105. The advertising requirements are requirements of procedural fairness, determined by statute, because, together with the provisions for making submissions, they give persons who may be affected by the Authority’s decision to grant or refuse an application for a new licence or a licence-related authorisation an opportunity to be heard.

106. Pursuant to section 45(1) of the Act, the Authority may only decide to grant a licence “after considering an application for a licence and any submissions received by the Authority in relation to the application”. Further, pursuant to sections 51(5) and 51(6) of the Act, any person may, subject to and in accordance with the regulations, make a submission to the Authority in relation to an application for an authorisation; and if any such submission is made to the Authority, the Authority is to take the submission into consideration before deciding whether or not to grant the authorisation.

107. Given that an application of this kind must “advertised in accordance with the regulations” (section 51(2)(c)), this also discloses a legislative intention that the Authority may only decide to grant a licence-related authorisation after considering an application which has been advertised in accordance with the Regulations.

108. The Authority has considered all of the objects and considerations prescribed by section 3 of the Act. In the present case, and object of the Act is “to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community” (section 3(1)(a)).

109. The requirement in section 51(2)(c) for an application for a licence-related authorisation to be advertised in accordance with the regulation helps to achieve the object of ensuring that the sale and supply of liquor occurs consistently with the expectations and needs of the community.

110. The right to make submissions about applications for licence-related authorisations under 51(5) would be rendered ineffectual if persons were not made aware of the existence of applications, by compliance with advertising requirements. The importance of such submissions is underlined by the requirement in sections 51(6) and 45(1) of the Act that the Authority take into account any submission received before determining whether to grant an application for a licence or a licence-related authorisation.

111. The Authority notes that, when enacting the Liquor Act 2007, Parliament declined to include an equivalent provision to section 15(1)(b) of the former Liquor Act 1982, which gave the former Licencing Court a discretion, with respect to documents, to “disregard any omission, error, defect or insufficiency in respect of the giving, serving, affixing, keeping affixed, advertising or publishing of the document or any other matter or thing not going to the substance of the matter before the Court.” That is a further indication that Parliament intended that there be full compliance with the advertising requirements prescribed by the current Act and Regulation.

112. The Authority accepts the Applicant’s advice that the Site Notice was not, in fact, affixed to the site of the Premises from shortly after the date of determination of the application on 4 March 2015 and that the Site Notice was not reaffixed to the site of the Premises until 16 October 2015 after the Authority wrote to the Applicant’s solicitor advising its concerns as to the Applicant’s non-compliance with the Regulation.

113. The Authority accepts the Applicant’s submissions that the Authority’s Purported Decision was valid until such time as it was set aside by the NSW Supreme Court on 26 June 2015.

114. However the Applicant, advised by specialist liquor and gaming solicitors must have been aware that it was seeking to have the Purported Decision set aside by the Supreme Court of NSW. It should also have been apparent to the Applicant that were the Applicant successful in this regard, once the Purported Decision was set aside, the Application would be back on foot and pending a valid and final determination by the Authority.

115. The Applicant was well placed to restore the Site Notice to the Premises once the Purported Decision was set aside and for the Site Notice to remain posted until such time as the Authority finally and validly determined the Application.

116. While clause 30(2) of the Regulation provides a right of any person to make a submission to the Authority within 30 days of the date on which an application is made (or such shorter exposure period as the Authority may determine) clause 30(2) makes clear that the Authority may, in such cases as the Authority thinks fit, extend the period in which persons may make submission in relation to any particular application or class of applications. In practise and as indicated in its published decisions, the Authority frequently exercises its discretion to receive community submissions made outside of the 30 day period.

117. The underlying statutory purpose of clause 9 of the Regulation is best understood from the perspective of a passer-by residing in the relevant community. In this case, a practical consequence of not restoring the Site Notice following the Supreme Court's order to set aside the Purported Decision is that a passer-by residing in either the local or broader community would have been unaware that this Application was once again under consideration for several months prior to the Site Notice being belatedly restored.

118. A reasonably informed member of the local or broader community would have information (from the Authority's liquor applications notice board, and the Authority's published decisions) that the Application had been (purportedly) refused by the Authority, with no indication that the Application was now pending consideration.

119. By not reaffixing the Site Notice for several months following the restoration of the Application and then retaining it until the Authority reconsidered the matter on 25 November 2015, those stakeholders have been substantially denied the opportunity to also make further submissions on the proposal for this hotel to trade until up to 3 am in the morning, were they minded to do so.

120. The Authority considers that community consultation is fundamental to the operation of the licensing scheme. On the other hand, the extent of inconvenience that would flow from the Authority finding that an application that does not comply with clause 9 is invalid will primarily flow to the private interests of the Applicant, and that inconvenience is confined to having to remake the Application and observe the advertising requirements. The Authority is not satisfied that there is any significant public inconvenience that will flow to the community from the invalidation of a non-compliant application.

121. The Authority is satisfied that the Application is invalid by reason of non-compliance with the requirement of clause 9 of the Regulation and the Authority does not have jurisdiction to consider the grant of the Application for an extended trading authorisation. For this reason, the Authority has not considered the merits of the Application, including the overall social impact of granting the Application” (emphasis in original).

Submissions of the plaintiff

30. Senior counsel for the plaintiff submitted that the Authority had incorrectly interpreted, and/or incorrectly applied, cl. 9 of the Regulation, and had erred in finding that it had no “jurisdiction” or power to determine the application. Senior counsel further submitted that the Authority had incorrectly applied the decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. He submitted that although s. 51 of the Act and cl. 9 of the Regulation used prescriptive language (i.e. the word “must”) in respect of the advertising requirements, there was nothing in either enactment which expressed an intention that an application would be invalid in the absence of strict compliance with such requirements. It was submitted that in concluding, by reference to the objects of the Act, that non-compliance with the advertising requirements resulted in the application being invalid, the Authority had:

1. conflated the right of “members of the local or broader community who may pass by the premises” to make a submission (which is facilitated by cl. 9) with the right of “any person to make a submission” (which is facilitated by s. 51(5));

2. elevated the requirement to give notice of an application to an object of the Act; and

3. ignored the fact that the object set out in s. 3(1)(a) of the Act could still be achieved by;

4. substantial compliance with cl. 9; and

5. compliance with other notice provisions appearing elsewhere in the Regulation (at cls. 7, 8 and 11).

31. Senior counsel further submitted that the plaintiff had strictly complied with the provisions governing advertising until about the time of the Authority’s first determination, and had resumed doing so on and from 16 October 2015. He submitted that in these circumstances, there had been substantial compliance with the advertising requirements during the period in which the application was under the Authority’s consideration, and that such substantial compliance met the relevant object(s) of the Act.

32. Senior counsel also emphasised that cl. 9 of the Regulation did not enliven the Authority’s power to grant the application, but that it formed part of an overall process of determination. He submitted that had Parliament intended to do so, it could have legislated to render invalid any application which did not strictly comply with the notice requirements.

33. Finally senior counsel further submitted that the Authority had erred in failing to consider and apply s. 80 of the Interpretation Act 1987 (NSW) (“the IA”) which is in the following terms:

80 Compliance with forms

(1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.

(2) If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.

(3) Without limiting the generality of subsections (1) and (2), in any form in, or approved under, an Act or statutory rule, a reference to a date that is presumed to be in the nineteenth or twentieth century may be construed as a reference to a date in the twenty-first century and the form may be altered accordingly.

(4) If an Act or statutory rule requires anything to be in a form prescribed by rules of court (whether generally or in relation to a particular court or tribunal), any such rules of court may instead provide for the thing to be in a form approved under or in accordance with those rules.

Submissions of the first defendant

34. Counsel for the first defendant submitted that I needed to consider only the first of the three grounds relied upon by the plaintiff. He submitted that if his position in respect of ground 1 was correct, it followed that the plaintiff’s application was invalid, and the Act did not permit it to be granted. He submitted that in these circumstances, any issue raised in the two remaining grounds relied upon by the plaintiff was of no relevance, such that consideration of either ground was of no utility. Conversely, he accepted that if ground 1 was made out, it would follow that the Authority’s decision should be quashed, and an order made remitting the matter to the Authority to be determined according to law, without the need to consider grounds 2 and 3.

35. Counsel for the first defendant submitted that having regard to the terms of ground 1, three questions arose, namely:

1. does non-compliance with the advertising requirements result in the invalidity of an application for an ETA or, in the alternative, invalidity of any ultimate decision of the Authority in relation to such application?;

2. will substantial compliance with the notice provisions suffice, or does invalidity result unless the non-compliance is properly described as de minimus or trivial?; and

3. if substantial compliance is sufficient, was there substantial compliance in the present case?

36. In developing his submissions, counsel for the first defendant turned firstly to the question of the proper construction of the Act and Regulation. He submitted that a failure to comply with a particular statutory requirement may or may not lead to invalidity, and that the question of whether it did so was to be resolved by reference to the text, scope and purpose of the legislation. In this regard, counsel pointed to a number of matters in the present case which, he submitted, supported the conclusion that in the absence of strict compliance with the advertising requirements, an application for an ETA was invalid.

37. Firstly, counsel highlighted the provisions of s. 51(2)(c) of the Act which require that an application for an authorisation be advertised in accordance with the Regulations, if the Regulations require it.

38. Secondly, he pointed to a number of provisions of the Act which, he submitted, reflected the fact that community consultation was a centrally important feature to the determination of an ETA. He drew particular attention to the objects of the Act set out in ss. 3(1)(a) and (b), namely to:

(a)   regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community; and

(b)   facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality.

39. Counsel submitted that these objects specifically highlighted the importance of community consultation in the process of determining applications under the Act. He submitted that whilst members of the community did not have a general right to procedural fairness in circumstances such as the present, the Act encompassed a range of mechanisms to provide an equivalent form of protection, of which the provisions of ss. 3(1)(a) and (b) were examples. He submitted that the advertising requirements were neither onerous nor complex, and that their importance lay in the fact that if they were not complied with, a central protective requirement of the legislation could not be properly satisfied. It was submitted that when the text, scope and purpose of the Act were taken into account, all of these considerations led to the conclusion that an application which had not strictly complied with the notice provisions was invalid.

40. Counsel for the first defendant accepted that the reference in s. 3(1)(b) to “minimal formality and technicality”, when taken by itself, ran contrary to his position. However, he again emphasised the need to consider the scope, objects and purpose of the Act as a whole.

41. Counsel then turned to the question of whether substantial compliance was sufficient to comply with s. 51(3)(c). Firstly, he submitted that substantial compliance was not read into s. 51(3)(c) by s. 80 of the IA. He submitted that s. 80 was of no relevance to the present case, given that it was concerned with compliance with prescribed “forms”. Further, he submitted that the advertising requirements were clear, and did not sensibly admit of a concept of “substantial compliance”.

42. In the alternative, counsel submitted that non-compliance with the advertising provisions led to invalidity unless such non-compliance was properly regarded as trivial. He submitted that in the circumstances of the present case, the plaintiff’s non-compliance did not fall into such a category.

39. Finally, counsel submitted that it was necessary for me to determine whether the advertising requirement imposed by s. 51(2)(c) of the Act was a jurisdictional fact in the strict sense (being a matter purely for the Court on judicial review), or in the broader sense (and thus a matter for the Authority). Counsel submitted that the requirement was a jurisdictional fact in the latter sense, with the legislation implicitly tasking the Authority with determining whether or not the notice requirements had been satisfied.

40. In this regard, counsel drew particular attention to the Authority’s reference (at [119] of its reasons) to the fact that the length of time during which there had been no notice affixed to the hotel premises meant that relevant stakeholders had been denied the opportunity to make submissions regarding the application. He submitted that if it were concluded that the requirement imposed by s. 51(2)(c) of the Act was a jurisdictional fact in the narrower sense, I should nevertheless conclude that the pre-condition was not satisfied such that, however the matter was approached, the plaintiff should fail.

41. CONSIDERATION

42. The competing positions of the parties raise (inter alia) a question of statutory construction. In Project Blue Sky (supra) the plurality (McHugh, Gummow, Kirby and Hayne JJ) said at [69] – [70]:

69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

47. Their Honours went on to say (commencing at [91]):

91. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

92. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: "substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not."

93. In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".

48. In my view, on a proper construction of s. 51(3)(c) of the Act and cl. 9 of the Regulation, strict compliance with the advertising requirements was necessary and that, absent such compliance, the plaintiff’s application for the ETA was invalid.

49. The objects of the Act include (inter alia) regulating aspects of the liquor industry in a way which is consistent with the expectations, needs and aspirations of the community, and facilitating the development of the industry in a manner which is in the public interest. Compliance with the notice requirements serves as the method by which the community, and other relevant stakeholders, are notified of the making of an application. The purpose of notification is to ensure that the attention of such persons is drawn to the fact that an application has been made, thus enabling them to consider whether they wish to make any submission(s) to the Authority in relation to it.

50. Unless there is strict compliance with those requirements, the objects in ss. 3(1)(a) and (b) are compromised. In a practical sense, it is difficult to meet the “expectations, needs and aspirations of the community”, and act in the public interest, if members of the community, and the public, are left unaware of an application made under the Act. Such lack of awareness is the inevitable consequence of a failure to strictly comply with the advertising requirements which are imposed. Importantly, in the present case there was no compliance at all with s. 51(2)(c) for an extended period of time. Further, although the reference in s. 51(2)(c) of the Act concerning the need for “minimal formality and technicality” may, when taken by itself, be capable of supporting a conclusion that strict compliance with s. 51(2)(c) is not necessary, reference to the purpose and objects of the Act and Regulation makes it clear that community consultation is of paramount importance in regulating the liquor industry. That consultative process cannot be undertaken as envisaged by the Act if applications are not properly advertised.

51. Part of the effect of the plaintiff’s submissions is that there was substantial compliance with the requirement imposed by s. 51(3)(c), and that this was sufficient. One of the matters upon which the plaintiff sought to rely in support of that proposition was s. 80 of the IA. However in my view, that provision provides no support for the plaintiff’s position, for the simple reason that it is directed to a completely different issue, namely non-compliance with prescribed forms. The provision says nothing remotely relevant to the present issue and for the reasons previously stated, nothing in the Act or the Regulation suggests that substantial compliance with the relevant provisions is sufficient. Moreover, the concept of substantial as opposed to strict compliance is fundamentally at odds with the scheme of community consultation to which Parliament has obviously attached considerable importance in setting out the objects of the Act.

52. For all of those reasons, I am satisfied that on a proper construction of the Act and the Regulation, strict compliance with the notice requirements is necessary.

53. In these circumstances it is not strictly necessary for me to consider the separate question of whether non-compliance leads to invalidity unless it can be categorised as trivial: Lloyd v Police (2004) 89 SASR 383; [2004] SASC 278 esp. at [84] per White J. Even if that approach were taken, the plaintiff would still fail. In circumstances where there was an absence of notice for approximately 7 months, this is not a case in which the non-compliance with the advertising requirements could be regarded as trivial.

54. Finally, I am satisfied that on its proper construction, the Act confers, upon the Authority, the task of determining whether the advertising requirements have been satisfied. In particular:

1. the Authority, as a specialist body, has particular expertise in determining applications made under the Act and, in so doing, in ensuring adherence to the process of community consultation which is central to the objects of the Act;

2. the advertising requirements are a procedural step in an overall process of making an application for an ETA; and

3. a purpose of the Act is to facilitate a practical system of regulating the liquor industry.

55. All of these matters support a conclusion that the Authority’s assessment of compliance with the advertising requirements is a pre-condition to validity of an application: Coordinated Construction Company Pty Limited v Climatech (Canberra) Pty Limited [2005] NSWCA 229 per Basten JA at [43]-[44].

56. In circumstances where the Authority was correct to conclude that the plaintiff’s application was invalid, there is no necessity for me to consider grounds 2 and 3 advanced by the plaintiff.

57. ORDERS

58. For the forgoing reasons I make the following orders:

1. The proceedings are dismissed.

2. The plaintiff is to pay the first defendant’s costs as agreed or assessed.

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Decision last updated: 28 October 2016