Duke Unley Pty Ltd v Liquorland (Australia) Pty Ltd & Ors

[2004] HCATrans 481

[2004] HCATrans 481

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A31 of 2004

B e t w e e n -

DUKE UNLEY PTY LTD

Applicant

and

LIQUORLAND (AUSTRALIA) PTY LTD

First Respondent

SULLIVAN HOTELS PTY LTD, CYRIL THOMAS LAMPARD, MARGARET ROSE LAMPARD AND TREVOR WILLIAM TOOHEY TRADING AS CREMORNE HOTEL

Second Respondent

THE CLYDE PTY LTD TRADING AS THE UNLEY ON CLYDE HOTEL

Third Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 1.04 PM

Copyright in the High Court of Australia

__________________

MR A.J. SULLIVAN, QC:   May it please the Court, I appear for the applicant.  (instructed by Griffin Hilditch)

MR B.F. BEAZLEY, QC:   If the Court pleases, I appear for the respondent.  (instructed by Hunt and Hunt)

GUMMOW J:   Yes, Mr Sullivan.

MR SULLIVAN:   Your Honours, a necessary precondition, of course, for appellate intervention with a decision of an inferior court or tribunal is the identification of error by the inferior court or tribunal.

KIRBY J:   Can I just ask you, in relation to the second and third respondents we have a note on the Court record that no oral argument is to be made by them.  Are you aware that they are conscious of these proceedings today?

MR SULLIVAN:   Yes, I am aware of that, your Honour.

KIRBY J:   And that they do not require to put any arguments in the application.

MR SULLIVAN:   As I understood it, your Honour, they adopted my learned friend, Mr Beazley’s, position.

KIRBY J:   That is so, yes, it is in the book, is it not?

GUMMOW J:   Yes.  Yes, Mr Sullivan.  This is a reprise in some way of another case in South Australia in which you appeared in which Justice Kirby and I were engaged.

MR SULLIVAN:   It is a reprise with a slightly different variation on it, your Honour.

GUMMOW J:   But it is the Liquor Licensing Act (SA) again.

MR SULLIVAN:   It is the Liquor Licensing Act (SA), your Honour. Your Honour, here, in our respectful submission, there is a significant difference from the Roosters Case which your Honour is referring to.  The Full Court, we respectfully submit in this matter, identified the error of the licensing court by constructing an impermissible and wrong threshold requirement for the granting of an application by a licensing court in the case of successive applications.  That impermissible threshold requirement, in our respectful submission, is that set out in paragraph 21 of the judgment which is contained in the appeal book ‑ ‑ ‑

GUMMOW J:   Page 43.

MR SULLIVAN:   No, sorry, your Honour, it is at page 20 of the application book.

GUMMOW J:   Yes, thank you, that is right.

MR SULLIVAN:   It is paragraph 21, your Honour where Justice Debelle, delivering the leading judgment of the court, quoted from a previous decision of the Full Court of the Supreme Court of South Australia called Harding Hotels and then went on to make these comments.  He said:

I would qualify those remarks by saying that the position is a fortiori if the applications follow one another very quickly and that, assuming no error in the first decision, the Licensing Court should grant the second application only if there has been a material change in relevant circumstances.  It is not enough to prove some changed factual circumstances.  The changed facts and circumstances will also have to be of sufficient weight to justify a different conclusion -

We respectfully submit that that comment which is not, in our respectful submission, dicta and could not be dicta, in our respectful submission, for at least two reasons:  first, because it was responding to a specific ground of appeal raised by my learned friends as appears from application book page 13, paragraph 2 and secondly, because in any event, as the following passages of his Honour’s judgment makes plain, it was relied upon him and, therefore, by the other members of the court as the substantial basis upon which the decision was made.

GUMMOW J:   Is this the complaint you make about supervening requirement?

MR SULLIVAN:   Yes, your Honour.

GUMMOW J:   What is the response you would make to the answer given by Mr Beazley at page 48?  He said:

The full Court did not dictate a “supervening requirement” under Section 58(2) of the Act . . . It merely exercised powers conferred upon it by Section 27 of the Act to correct a failure of the Licensing Court to require the Applicant to prove the second requirement of Section 58(2) of the Act that the licensed premises already existing in the locality did not adequately cater for the demand.

MR SULLIVAN:   Our answer to that, your Honour, is when you look at the Full Court’s judgment, with great respect, it did not do that at all.  What it did was to say, this is the test, this is the standard, you cannot do it unless there are changed circumstances and there are no changed circumstances here, so they actually applied the test.  May I indicate, your Honour, where that appears in the judgment.  First of all, if your Honours go to paragraph 22 at application book 21, line 5, your Honours will see, having stated the test, then in the last sentence of that paragraph there is an indication of the application:

There were in truth no changed circumstances sufficient to justify the grant of the retail liquor merchant’s licence.

In paragraph 40 on application book page 24, that is even made more plain where, in the last sentence thereof, having reviewed the evidence Justice Debelle said:

The additional evidence which was led does not establish that the position was in truth materially different from that which obtained when Duke’s first application was refused.

And, finally, in paragraph 47 on page 27 of the judgment his Honour starts off:

In the result, Duke did not on its second application prove a different case. 

We say that that approach which was adopted materially and significantly affected the conclusions which were reached and that what, in effect, the court has done has to erroneously apply its own impermissible tests.  If we are correct in saying the test is an impermissible and erroneous one it follows that the conclusion which was reached by the court is also an erroneous one. 

GUMMOW J:   Can you just explain if any, and what it is, the question of construction arises under 58?

MR SULLIVAN:   The question of construction arises, your Honour?

GUMMOW J:   Yes, is there any question of construction in 58 that is disputed?

MR SULLIVAN:   No, your Honour, it is a question of application of the facts to the words. 

GUMMOW J:   That is what I rather thought.

KIRBY J:   That does not sound very promising.

MR SULLIVAN:   But, your Honour, if I may say this.  The main special leave point which we rely upon is the introduction, what we say, of a fetter on the unfettered discretion under section 53 of the Act contained in the paragraph I have taken your Honours to.  That, in our respectful submission, is contrary to law to say we have an unqualified statutory discretion, nothing about successive applications contained in the legislation, the courts can, in effect, impose a fetter.  It has ramifications well beyond the licensing court but indeed has ramifications in any sort of specialist tribunal of any sort with significant subsequent applications.

Your Honours, by way of illustration, for instance, under the Western Australian Licensing Act the legislature specifically provided in its statute for successive applications and time limits in respect thereof.  That, in our respectful submission, is the way it should be done and is properly done, not by the courts seeking to impose a rule about such applications which, of course, due to our system of precedent, will be followed and applied by courts lower in the hierarchy in South Australia.  That is, in our respectful submission, a special leave point, the point of general importance which requires this Court’s intervention. 

Following from that, in our respectful submission, what the Full Court did was to then, not identifying any other error in the judge’s approach, to effectively, applying Warren v Coombes principles, purporting to do those, I say with respect, in Fox v Percy to substitute its own view of the facts for the view of the facts which the learned licence court judge had made.

Your Honours, in our respectful submission, unless there is error it is not open, even on the principles in Fox v Percy or Warren v Coombes for an appellate court simply to substitute its own view of the facts.  There must be error.  In our respectful submission, when properly analysed and looked at, there was no error on the Licensing Court judge’s part and, in the Full Court decision, when goes to it, those parts which criticise his Honour’s findings of fact are, first of all, coloured by and permeated by the wrongful application of the test which they have proposed and, secondly, indeed, have no substance.

May I seek to develop that last point.  One may be forgiven for thinking there is an element of hypercriticality in the Full Court’s judgment concerning ‑ ‑ ‑

GUMMOW J:   Is that a word?

MR SULLIVAN:   They are hypercritical, your Honour.  I was just trying to use it as a noun.  One may think the Full Court were in some senses hypercritical of his Honour Judge Kelly’s judgment and in ways, demonstrably in some instances, which we say are clearly wrong.  For instance, your Honour, if one goes to the judgment of the Full Court of Justice Debelle at page 17 in paragraph 12 starting at about line 37, his Honour uses the language of being highly unsatisfactory for:

The reasons of the Licensing Court judge are not a self‑contained set of reasons -

with a reference back to earlier decisions and then goes on to say that “Each set of reasons should be ‑ ‑ ‑

GUMMOW J:   I think what his Honour was doing was reacting to what we describe sometimes here as lore which builds up in these specialist tribunals.

MR SULLIVAN:   If his Honour was reacting to that, your Honour, with respect, it is not well expressed because, as your Honours will well know, and indeed as Fox v Percy establishes, it is perfectly permissible for judges to refer, rather than to have to set out at length again, reasoning to refer to previous decisions without reasoning ‑ ‑ ‑

GUMMOW J:   It is hardly a special leave point, Mr Sullivan.

MR SULLIVAN:   It is not, your Honour, it is a point which I ‑ ‑ ‑

GUMMOW J:   Is it some sort of colour point?

MR SULLIVAN:   Yes, your Honour, it is a colour point in a sense that ‑ ‑ ‑

GUMMOW J:   We are colour blind.

MR SULLIVAN:   Your Honour, let me go back to black and white, then about the other matters.  His Honour, for instance, found one of the errors that was attributed to the fact‑finding process appears in Justice Debelle’s judgment at application book 23 at paragraph 36.  His Honour said there:

It is not usual for this court to have to re-examine the evidence in this way. 

With great respect, we agree.

It has been necessary to do so because the Licensing Court judge has not done so.  His conclusion that it was better evidence than had been led on the first application is not justified.  It is plain that it is not.

Your Honour, we say when you look at Judge Kelly’s judgment set out at pages 2 to 10, he clearly goes through and spells out with crystal clarity the change in the evidence and why he found it important, important changes.

GUMMOW J:   What do you say about paragraph 39, page 24?

MR SULLIVAN:   Your Honour, in our respectful submission, paragraph 39, again, is a finding which is a ‑ ‑ ‑

GUMMOW J:   You have these elderly people ‑ ‑ ‑

MR SULLIVAN:    ‑ ‑ ‑ placing of a colour or complexion on the evidence and it does not demonstrate error.  It is the Full Court saying this is our view.  They are not…..to say the judge took into account irrelevant consideration, he overlooked or ignored particular evidence.  They are, with great respect, simply saying this is our view of the evidence in the absence of error and, in our respectful submission, that is itself an error.  Indeed, in any event, inconvenience as the case that their Honours quote is a factor to be taken into account for the purpose of granting the licence. 

The other point I wish to make about another alleged failing of his Honour’s judgment was that the Full Court’s reasoning, at paragraph 38 on line 24 which, in our respectful submission, highlights the erroneous

approach.  At page 23, Justice Debelle refers to evidence concerning the “community bus” and the like and makes the comment that this “evidence is not compelling”.  First of all, it does not have to be compelling, that is not the test.  The test is whether it was reasonably open.  Secondly, to the extent that it is intended to be a criticism of the Licensing Court judge the licensing judge himself acknowledged at page 7 that that was not strong evidence.

Then, the next complaint, which is made of the fact‑finding process by his Honour is set out in paragraph 43 of the joint judgment at application book 26.  His Honour, with great respect, accused the Licensing Court judge of having:

failed to weigh the voiced need of the witnesses, including elderly and disabled people, against the facilities which already exist.

With great respect, his Honour’s judgment, the Licensing Court judgment, is redolent with a consideration of the disabilities and needs, in the light of the existing facilities, of the various witnesses and that appears extensively between pages 5 and 10 of the application book where those concerns are set out. 

The second point, of course, to make, the question of weight, the weight that the trial judge attaches to something as opposed to the appellate court does not reveal error.  So, in our respectful submission, what you have with the Full Court judgment is having painted a test which, in our respectful submission, was erroneous and is a matter of public importance to correct and then applied the test, their Honours have then, contrary to the requirements of Fox v Percy and Warren v Coombes, in absence of error, sought simply to substitute their own view of the facts.

We would acknowledge that on the second aspect of that which we put, by itself it would not be a matter of general importance warranting special leave but, in our respectful submission, the first point is a major point of general importance, not only in South Australia but, indeed, in the whole of the Australian legal community and for that reason special leave should be granted.

GUMMOW J:   Thank you, Mr Sullivan.  We do not need to call on you, Mr Beazley. 

This application concerns the alleged error of the Full Court of the Supreme Court of South Australia in the application of the Liquor Licensing Act 1997 (SA). Although the case is doubtless important to the parties, of some economic significance and possibly of interest to members of the community affected by the relevant liquor outlets, we see no general importance in the points tendered for scrutiny, nor are we convinced that the Full Court erred in the orders that it entered and in the reasons that it gave. We do not read the Full Court decision as imposing a fetter on the at large discretion granted by the Act to the Licensing Court of South Australia.

We see no question of general importance for administrative law or statutory construction for the country as a whole.  The prospects of success, were special leave to be granted, are not reasonable ones.  Accordingly, special leave is refused with costs. 

We will now adjourn to reconstitute. 

AT 1.22 PM THE MATTER WAS CONCLUDED