Durrisdeer Pty Ltd v Nordale Management Pty Ltd

[1996] QSC 5

IN THE SUPREME COURT

OF QUEENSLAND  No. 214 of 1995

Brisbane

[Durrisdeer Pty Ltd v. Nordale Management Pty Ltd & Anor.]

BETWEEN:

DURRISDEER PTY LTD
  Appellant

AND:

NORDALE MANAGEMENT PTY LTD
  First Respondent

AND:

CHIEF EXECUTIVE OF THE DEPARTMENT OF
  TOURISM, SPORT AND RACING
  Second Respondent

JUDGMENT -  MOYNIHAN J.

Judgment delivered:                 15/02/1996     

CATCHWORDS: Appeal under S.24(1) Liquor Act - whether decision by Liquor Appeals Tribunal amounted to an error of law.

Counsel:  D. Gore Q.C. and K.J. McGhee for the Appellant

J.R. Gallagher Q.C. and M. Rackemann for the

First Respondent
  M.O. Plunkett for the Second Respondent

Solicitors:  Michell Sillar Nicholsons for the Appellant
  Dunhill Madden Butler for the First Respondent
  Crown Solicitor for the Second Respondent

Hearing date:  24/10/1995
IN THE SUPREME COURT

OF QUEENSLAND  No. 214 of 1995

Brisbane

BETWEEN:
  DURRISDEER PTY LTD
  Appellant

AND:
  NORDALE MANAGEMENT PTY LTD
  First Respondent

AND:
  CHIEF EXECUTIVE OF THE DEPARTMENT OF
  TOURISM, SPORT AND RACING
  Second Respondent

JUDGMENT - MOYNIHAN J.

Judgment delivered 15 February 1996

On 25 September 1995 the Liquor Appeals Tribunal allowed the respondents' appeal and ordered that the Chief Executive's decision to grant approval under s.59(1)(c) of the Liquor Act 1992 (the Act) for the sale of liquor from specified premises be set aside and that the appellant's application be refused. The appellant appeals against that decision. By s.24(1) of the Liquor Act an appeal against a determination of the Tribunal must be on the ground of error of law.
           On the 4th of October 1994 the appellant, the holder of a general license under the Act in respect of licensed premises known as the Royal George Hotel at Nambour, sought the approval of the Chief Executive to sell liquor from premises at Pacific Paradise which is some distance from Nambour. 
The application was made pursuant to s.59(1)(c) of the Act which provides that a general license authorised the licensee to sell liquor:-

". . . on premises approved by the chief executive for the sale of liquor under authority of the general license, for consumption off the premises;

subject to this Act and the conditions specified in the license for extended hours permit:

The Act further provides that premises so approved are taken to be part of the licensed premises to which the general license relates. 
           On 30 November 1994 the Chief Executive's delegate approved a recommendation by a departmental officer for approval of the appellant's application "subject to receipt of all outstanding documentation" by signing a notation on the memorandum containing the recommendation.  The reference to outstanding documentation is referrable to a letter of 7 October 1994.  The department had, relevantly for present purposes, said:-

"The following documentation is required to enable the full consideration of this application:-

(1)a signed copy of the lease including a non-exclusivity clause in relation to the right to have a bottleshop in the centre.

(2)completion of the attached Registration of Financial Interest Form and the fee of $47 in respect of the owner of the detached bottleshop premises.

(3)the attached declaration signed by the licensee and owner of the hotel.

(4)a sketched plan of the proposed shop showing the floor space available and the general layout.

(5)Real Property Description of the bottleshop premises.

(6)proof of local Authority zoning approval.

(7). . . submission regarding community benefits . .

(8)a sketched plan of the area (preferably a photocopy of a street directory) showing the location of your hotel, the detached bottleshop sight and any other hotels in the area.  This should include distance in kilometres between the bottleshop site and the other liquor facilities."

The Tribunal found "after reviewing the material before (it)" that the 30 November documentation was not an approval pursuant to s.59(1)(c) of the Act. The appellant must establish that it had an approval in terms of the Act by 2 December 1994 because on that date Regulation 6C(1)(c)(i) of the Liquor Regulation 1992 came into force. It was common ground that if this regulation applied to the applicant's application it denied the Chief Executive power to approve, pursuant to s.59(1)(c), premises more than five kilometres by road from the licensed premises under the general licence. The premises the subject of the appellant's application are more than five kilometres by road from Nambour.
           The appellant accepted that whether an approval was granted was a question of fact, Girls Public Day School Trust v. Ereaut (1931) A.C. 12 at 35. The general approach to the review of such findings is stated in Colonial Mutual Life Assurance Ltd v. Commissioner of Taxation (1933) 49 C.L.R. 171 at 175, (albeit that the issues there were somewhat different). where it was said:-

"The question whether the expenditure has been exclusively incurred in gaining premium income or has been incurred in the general management of the business of the company is undoubtedly a question of fact . . . but if in reaching that conclusion of fact the Board acted upon some principle of law, or acted without any evidence to support it, then a question of law is involved in the decision". 

See also BCC v. The Valuer-General (Qld) (1978) 140 C.L.R. 41 at 49, Melwood Units Pty Ltd v. Commissioner for Main Roads 1978 A.C. 426.
The Tribunal correctly appreciated that whether the Chief Executive's decision of 30 November constituted an approval in terms of s.59(1)(c) was a question of fact to be decided by consideration of the circumstances of the case. The Tribunal correctly appreciated, referring to Corporation of the City of Unley v. Claude Neon Limited & Anor (1993) 32 S.A.S.R. 339, that the relevant consideration was whether the approval of 30 November 1994 was a final disposition of the application albeit subject to conditions to be subsequently complied with. There are variations in the statement of the test in the many authorities cited but the differences seem to be in expression rather than substance.
           The Tribunal characterised the approval of 30 November an internal departmental memo.  It then had regard to the way in which the Department subsequently dealt with the matter.
           Among other things by letter of 6 December 1994 the department notified the appellant's solicitors that:-

"preliminary approval has been granted for the utilisation of the site of this purpose, subject to:-

(a)satisfaction of all outstanding requirements, and

(b)the execution of a lease for the shop within 30 days."

The then outstanding requirements apparently were:-

(i)a signed copy of the lease including a non-exclusivity clause;

(ii)a completed registration of financial interest form, together with fee;

(iii)a completed declaration by the licensee and owner;

(iv)a property description of the premises;

(v)a sketch plan of the bottleshop having floor space and layout;

(vi)proof of local authority zoning.

The Tribunal was rightly critical of the Department's use of the term "preliminary" approval in circumstances where the Act makes no provision for such an approval.  It however correctly appreciated that the use of the term did not determine the issue which it was required to address.  The Tribunal concluded, and in my view the conclusion was open, that the tenor of subsequent departmental correspondence and activity was that there was no final approval until 21 December 1994 and the Department so advised the applicant by its letter of 23 December which enclosed the license document duly endorsed.        In the meantime, on 13 December 1994 the department had written to the Maroochy Shire Council seeking any comments or objections in relation to the application.  On 20 December the Council resolved that it had no objection subject to provisions to the hours of trading which it set out in its letter and this was conveyed to the department.  By letters dated 22 December 1990 the department advised objectors that the Chief Executive Officer had determined to grant the application on 21 December and informed them that they would "now be eligible to appeal" pursuant to s.30 of the Act.
           I have been referred to many cases illustrative of what constitutes (or does not constitute) an error of law so which operates to vitiate a finding of fact and as to what constitutes (or does not constitute) a final determination.   I do not propose to canvass them.  They seem to me essentially to reflect the application of general well settled principles to which the Tribunal referred and which I adverted to earlier to their own circumstances.
           It was in my view open to the Tribunal on the material before it to conclude, as a matter of fact, as it did, that the 30 November notation was not a final disposition of the appellant's application.  That being so to establish error of law requires it to be demonstrated that the Tribunal's decision reflects an error in identifying an applicable principle or in the application of such a principle.  In my view that has not been done.
           Since the notation of 30 November was not a final disposition, so as to constitute an approval in terms of s.59 of the Act, the appellant does not have an accrued right in respect of it.
           The appeal is therefore dismissed with costs.