Ecovale P/L v The Chief Executive, Liquor Licensing Division, Department of Tourism, Sport and Racing
[2000] QSC 505
•14/01/2000
SUPREME COURT OF QUEENSLAND
CITATION: Ecovale P/L v The Chief Executive, Liquor Licensing
Division, Department of Tourism, Sport and Racing & Anor
[2000] QSC 505PARTIES: ECOVALE PTY LTD ACN 003 855 061
(Applicant)
v
THE CHIEF EXECUTIVE, LIQUOR LICENSING
DIVISION, DEPARTMENT OF TOURISM, SPORT
AND RACING
(First Respondent)
and
HARBURG INVESTMENTS PTY LTD ACN 010 279 884
(Second Respondent)FILE NO: 10172 of 1999 DIVISION: Trial Division DELIVERED ON: 14 January 2000 DELIVERED AT: Brisbane HEARING DATE: 25 November 1999 JUDGE: Muir J CATCHWORDS: APPEAL FROM DECISION OF THE LIQUOR APPEALS TRIBUNAL – Liquor Act 1992 ss 3, 25, 30 – construction of ss 3 and 58(2) of the Act – construction of s 105 of the Act and Regulation 4(g)(iv) – approach to rejection of evidence for consideration. JUDICIAL REVIEW OF DECISION OF THE CHIEF EXECUTIVE – scope of s 154 – whether area of detached bottle shop may be added to the area of a general licence under s 154 – whether necessary to make application under s 59(1)(d). Judicial Review Act
Liquor Act 1992, ss 3, 24(1), 58, 59, 105, 111, 116, 118,
118A, 154, 159
Liquor Regulation 1992, reg 4
Local Government Act 1936, s 33(6A)(b)(iii)(B)Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty
Ltd (1994) 49 FCR 250
Attorney-General (NSW) Ex Rel Franklins Stores Pty Ltd v
Lizelle Pty Ltd (1977) 2 NSWLR 955
Coon Wing Lau v Calwell (1949) 80 CLR 533
Garema Mackay Pty Ltd v Proserpine Shire Council [1984] 2
Qd R 32
Project Blue Sky v Australian Broadcasting Authority (1998)
194 CLR 355
R v Bowman [1898] 1 QB 663
Rayjon Properties Pty Ltd v Director-General, Department of
Housing Local Government and Planning [1995] 2 Qd R 559
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
Stubas v City of Tower, 40 NSW 2d 362
Winkler v Director of Public Prosecutions (1990) 94 ALR
361COUNSEL: Mr SL Doyle SC with him Mr DG Clothier for the applicant
Mr MD Hinson SC for the first respondent
Mr RV Hanson QC for the second respondentSOLICITORS: Minter Ellison for the applicant
CW Lohe, Crown Solicitor, for the first respondent
Corrs Chambers Westgarth for the second respondent
MUIR J: The applicant Ecovale Pty Ltd and the second respondent Harburg Investments Pty Ltd are business competitors. Ecovale is the licensee of the Aspley Hotel on Gympie Road at Aspley. Harburg owned and operated the Godfather’s Restaurant in the Aspley shopping centre, also on Gympie Road at Aspley. Harburg made application for a general licence under s 159 of the Liquor Act 1992 in respect of the premises occupied by the restaurant with a view to using the premises as a “Cheers” Tavern. Ecovale objected to the granting of the application. The objection was unsuccessful, Ecovale appealed and the Liquor Appeals Tribunal dismissed the appeal on 25 August 1999.
Ecovale now appeals against the Tribunal’s decision under s 24(1) of the Liquor Act.
Ecovale also seeks judicial review of a decision of the Chief Executive made on 18 October 1999 under which the area of Harburg’s general licence under the Act was extended to include the area of a bottle shop located in shop 14A of the Aspley Shopping Centre, formerly operated under a general licence granted in respect of the Brackenridge Hotel.
It is convenient to address in turn each of the three grounds of appeal relied on by Ecovale on the hearing of the appeal.
The Liquor Appeals Tribunal erred in law in its construction of sections 3 and 58(2) of the Liquor Act 1992 in finding that the Chief Executive could “make an in principle decision in support of an application” for a licence where another licence remained in force for the subject premises.
On 19 March 1999 a letter in the following terms was sent on behalf of the Chief Executive to a representative of Harburg.
“Dear Mr Kleineberg
CHEERS TAVERN – GENERAL LICENCE APPLICATION,
ASPLEY
Your client’s application for a General Licence was approved by the
Chief Executive on 17 March 1999 subject to:1. The lodgement of Council approved plans.
2. Payment of the premium; to be calculated upon receipt of plans.
3. The receipt of the Food Hygiene Certificate, Letter of Clearance from the Queensland Fire Services and the Certificate of Classification.
4. Surrender of existing On-Premises (Meals) licence, no. 43101399.
The approved trading hours are 10:00am to 12:00 midnight, Monday to Sunday and a special condition restricting the provision of amplified entertainment will be imposed on the licence.
Your client’s Licence will be issued once the above
documentation is received and associated matters attended to.
…”. (emphasis supplied)Section 58 of the Liquor Act provides:
“ 58.(1) The following licences may be granted and held under this
Act –
(a) general licence; (b) residential licence;
(c) on-premises licence; (d) producer/wholesaler licence;
(e) club licence; (f) special facility licence; (g) limited licence.
(2) Only 1 licence may be granted or held for any premises or any part of premises.”
Ecovale submits that the communication by the Chief Executive in the letter of 19 March 1999 of the approval of the Chief Executive (given on 14 March 1999) is the grant of the licence for the purposes of s 58(2). It was common ground that the “on-premises (meals) licence” for the subject premises was not surrendered until after 17 March 1999. It follows, according the argument, that there could be no valid grant of the general licence as there was in existence another licence for the subject premises.
The Tribunal concluded that there had been no breach of the requirements of s 58(2) because the Chief Executive’s decision was merely one “in principle”. In reaching that conclusion the Tribunal referred to s 3 of the Act which provides, relevantly –
“ 3. The objects of this Act are –
…
(c) to provide a flexible, practical system for the regulation of the liquor industry in the State with minimum formality, technicality or intervention consistent with the proper and efficient administration of this Act;”.
Ecovale argued that the approach of the Tribunal was inconsistent with the objects of flexibility and practicality stated in section 3 of the Act as it required the formal making of a grant in addition to the approval of the Chief Executive and the communication of that approval by letter.
It was further argued that to give effect to the words “granted or held” in s 58(2), the word “held” must mean something different to “grant” and that, in consequence, “grant” encompassed a step antecedent to the “holding” of the licence.
I do not accept Ecovale’s argument. The granting of a licence and the holding of a licence are two different concepts. The grant is the act which brings the licence into existence and would usually connote some formal act. The word “issue” in relation to a licence or certificate will normally mean or include a parting with possession into the hands of the person to whom the instrument is issued (Coon Wing Lau v Calwell (1949) 80 CLR 533 at 574, per Dixon J). But the words “grant” and “issue” in statutes pertaining to the granting of liquor licences may be used interchangeably (Stubas v City of Tower, 40 NSW 2d 362, 370, 229 Minn 552). The letter of 19 March 1999 used the word “issued” rather than “granted” but it is plain enough that the reference is to the formal steps necessary to confer a licence on the applicant. In the context of the letter, “issued” is synonymous with “granted”.
The letter made it plain that the Chief Executive would refrain from taking the formal step of issuing the licence on the fulfilment of the conditions specified in the letter. To construe the letter as meaning that although a licence had been granted its issue would be withheld pending fulfilment of the conditions imposed is to credit the Chief Executive with an approach which was as impractical as it was subtle. There would be little point in granting the licence but withholding the handing over of the licence instrument until fulfilment of the relevant conditions.
I can see no good reason why I should adopt a construction of the letter which would result in a contravention of the Act when there is open an alternative (and preferable) construction which does not produce that result.
The Liquor Appeals Tribunal erred in law in its construction of s 105 of the Liquor Act 1992 and Regulation 4(g)(iv) of the Liquor Regulation 1992 in finding that the requirement that an application for a licence be accompanied by “evidence that conducting the proposed business on the premises is a permitted use under the relevant Local Government’s planning scheme” was directory.
Section 105 of the Act relevantly provides –
“An application for any purpose of this Part must –
(a) be made to the Chief Executive; and (b) be in a form approved by the Chief Executive; and (c)
specify, or be accompanied by, the particulars prescribed by regulation …”.
Regulation 4 of the Liquor Regulation 1992 provides –
“4. An application for a licence must be accompanied by –
…(g) in the case of all applications for a licence –
(iv) evidence that conducting the proposed business on the premises is a permitted use under the relevant local government’s planning scheme.”
It is common ground that at the date of the application for licence the conducting of the proposed business on the premises was not a permitted use but became a permitted use prior to the Chief Executive’s approval on 17 March 1999. Ecovale contends that the combined effect of s 105 and r 4(g)(iv) is to require applications for licence to be accompanied by the prescribed evidence and that there is a need to demonstrate that the proposed use is a “permitted use” as at the date of the application. The latter requirement is said to flow from the stipulation that the application be accompanied by evidence that the conducting of the proposed business is a permitted use.
In support of its construction Ecovale refers to the following passage from the Minister’s second reading speech –
“No application for a new licence will be allowed to proceed to the advertising stage until any relevant town planning approval is in place. That will ensure that the unacceptable situation of an application under a town planning scheme and the Liquor Act inviting objections for different purposes at the same time no longer occurs. Instead, by ensuring that any applicable town planning processes are a pre-requisite to acceptance of the application, local governments will have the appropriate filtering capability on applications for new licences. To ensure that the Applicant is not disadvantaged by this process, a power to waive advertising under the Liquor Act is included where the proposal has been appropriately advertised for town planning consent.”
Whether failure to comply with r 4 has an invalidating effect depends on whether there can be discerned in the Act and Regulations “a legislative purpose to invalidate any act that fails to comply with the condition”: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 398. At that reference it was said in the joint judgment-
“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.”
In my view it is difficult to discern in the legislation any intention to invalidate a licence granted in consequence of a faulty application. The purpose of the subject requirement in s 105 is to enable the application to be properly considered and processed.
When s 105 was enacted the particulars to be prescribed by regulation were unknown and, of course, such particulars could vary from time to time. In the usual scheme of things one would expect the particulars to include a range of matters of varying degrees of importance. The legislation doubtless contemplates that the application forms will be subjected to scrutiny by officers of the Chief Executive with a view to ensuring compliance with statutory requirements. I do not accept that the legislature did not contemplate and would not countenance the amendment or supplementation of deficient application but required the rejection of all applications which were deficient in any respect, no matter how minor.
Members of the public have no right to inspect applications or the documents accompanying them. There is thus no risk that members of the public might be misled or even inconvenienced by the supplementation of deficient applications. It will be recalled that stated objects of the Act are “to provide a flexible, practical system for the regulation of the liquor in the State with minimum formality [and] technicality …” Those objects do not sit comfortably with the notion that those administering the Act may not check applications for deficiencies and, where any are found, permit them to be remedied with a minimum of inconvenience and expense.
In any event, there was probably no breach of s 105 as it is common ground that relevant approvals were in place before the application was considered and determined.
In Garema Mackay Pty Ltd v Proserpine Shire Council [1984] 2 Qd R 32, Connolly J considered a requirement of s 33(6A)(b)(iii)(B) of the Local Government Act 1936 which required rezoning applications to be accompanied by an economic impact assessment in certain circumstances. The economic impact assessment was not physically attached to the subject application. It had been lodged with the Council with an earlier rezoning application which had been rejected. The Council retained the document and it and the application were before the council when it approved the application. Connolly J observed at 34 –
“The evident purpose of the provision is to ensure that both the local authority in considering the application and potential objectors who may be faced with the decision whether or not to resist the application, may have the benefit of such assessment in making their respective decisions. … When one considers that amongst the meanings for ‘accompany’ given by the Shorter Oxford Dictionary are ‘to add or conjoin to; to send (or give) with the addition of; and to unit oneself with’ it is obvious that the argument is far from promising.”
See also Winkler v Director of Public Prosecutions (1990) 94 ALR 361 in which there are observations to like effect.
I am also unable to accept that the legislative scheme contemplated that if an application was deficient but nevertheless resulted in the grant of a licence, the grant would be invalid. To conclude to the contrary would mean that third parties such as transferees and mortgagees would be unable to rely upon the existence of a licence as proof of a valid licence but would need to satisfy themselves that the prerequisites to the grant of a licence had been met. That task could often prove difficult, if not impossible, to accomplish as the departmental files are not generally accessible to the public. I think it unlikely that the Legislature intended to introduce into its licensing scheme the uncertainties which would result from the inability of members of the public to rely on the validity of licences which appear on their face to have been duly granted: cf. Attorney-General (NSW) Ex Rel Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955 at 965-5.
I can derive no assistance for present purposes from the second reading speech. It is plain that s 105 is quite different in concept to the provision or provisions envisaged in the speech. Accordingly, this ground of appeal fails.
The Liquor Appeals Tribunal erred in excluding from consideration evidence before it on public need which evidence had been adduced on behalf of Ecovale.
Before a general licence can be granted, the applicant is required to satisfy the Chief Executive that the licence is necessary to provide for the reasonable requirements of the public for liquor and related services in the locality to which the application relates: s 116(2). Ecovale was represented on the hearing before the Tribunal and evidence as to public need was adduced by it and elicited on its behalf through cross-examination of the witnesses who gave evidence on behalf of Harburg. Harburg’s counsel and the representative of the Chief Executive submitted that Harburg had no right to be heard and that its representative had no right to cross-examine. The Tribunal reserved determination of the objection until after the close of evidence. In its reasons the Tribunal upheld the objection. Ecovale does not contend that the Tribunal erred in so doing. It contends though, that the Tribunal erred in concluding that it was unable to have regard to such evidence.
In para 40 of its reasons, the Tribunal stated –
“40. In this case however, for the reasons given, the Tribunal finds that the appellants have no right of appeal and no right to be heard in relation to questions of public need and accordingly evidence of public need called by the appellants or elucidated by them in evidence is excluded by the Tribunal from consideration.”
There is no doubt that the Tribunal had the right, if it so desired, to consider such evidence. Section 25 provides –
“In the exercise of its jurisdiction the Tribunal –
…
(c) is not bound by the rules of practice as to evidence and may inform itself on any matter as it considers appropriate; …”.
On a fair reading, para 40 conveys no more than that the Tribunal, having concluded that Ecovale had no right to be heard in relation to questions of public need, decided not to have regard to the evidence led by Ecovale which it had no right to adduce.
If para 40 is read in connection with para 41 of the Tribunal’s reasons, it will be seen that the Tribunal did not find that it had no power to have regard to the evidence adduced by Ecovale. Paragraph 41 states –
“While the Tribunal has in this case excluded evidence of this type and has found that the appellants have no right to be heard in respect of it, the Tribunal is mindful that in exceptional cases of objector appeals, there have in the past been, and are likely in the future, to be instances where there is little evidence before us on public need questions. In such exceptional cases, the Tribunal must either find that the question of public need is not proven and accordingly refuse the application or alternatively determine that it will exercise its jurisdiction under Section 25C to inform itself on these matters as it considers appropriate. In such cases the Tribunal would have a range of possible sources of evidence, one of which may be objectors and the witnesses that objectors can make available. The Tribunal would of course be cautious about using this power and would only use it in circumstances where it appeared to be consistent with the scheme and policy of the Act for the Tribunal to do so.”
It was submitted on behalf of Ecovale that, in effect, the Tribunal asserts in paras 40 and 41 that the Tribunal would have the power to admit evidence, other than that adduced on behalf of an applicant for a licence (such as evidence of objectors), only if “there is little evidence … on public need questions” and, in consequence, the Tribunal would, in the absence of further evidence, be required to “find that the question of public need is not proven”. It is further submitted that the Tribunal has concluded that its power is limited to admitting evidence favourable to an applicant’s case.
The second sentence of para 41 supports Ecovale’s submissions but I think it would be unreasonable to construe para 41 in the manner Ecovale submits. The reference in the third sentence to the evidence of objectors and witnesses that objectors can make available makes it plain that the Tribunal had in mind the receipt of evidence which does not support an applicant’s case. There is thus a possible inconsistency between the second and third sentences. In my view, the matter is best approached by treating para 41 as an observation which does not purport to lay down a universal rule. Rather, it is said by the Tribunal, in effect, that, as a matter of normal practice, the Tribunal on dealing with applications before it, would be disposed to permit the supplementation of the material properly before it on the hearing of the application, in relation to the public interest questions, only where the Tribunal regarded such material as deficient.
Paragraph 41 addresses only the supplementation of evidence duly placed before the Tribunal by evidence of objectors who have no relevant right to adduce evidence or to be heard.
The Tribunal’s comments in paras 41 and 42 were made against a background in which the Tribunal had before it, as is noted in para 42 of its reasons, “the various reports in the appeal record”. They included Ecovale’s submissions on public need and a report by Ecovale’s expert, Mr Norling of Urban Economics. Regard to this fact and to the fact that the Tribunal will always have the benefit of the arguments and evidence relied on before the Chief Executive, as well as the Chief Executive’s reasons, further helps in understanding the Tribunal’s reasons. Accordingly, this point also fails.
For the above reasons, the appeal is dismissed.
Judicial review application – it was not open to the Chief Executive to extend Harburg’s general licence under s 154 of the Liquor Act by including within it the area of the detached bottle shop in shop 14A of the Aspley shopping centre.
As discussed earlier, Harburg was granted a general licence in respect of a premises in the Aspley shopping centre now known as Cheers Tavern in October 1999. The premises are described in the licence as –
“Premises situated at shops 12 and 13, 1378 Gympie Road, Aspley on land described as lot 810, CPS 11868, County of Stanley, Parish of Kedron.”
At the time Harburg’s general licence was granted a Mr White operated a bottle shop in shop 14A of the Aspley shopping centre under a general licence granted in respect of the Brackenridge Hotel. The Cheers Tavern is in a building which contains 6 other shop premises. Shop 14A is in a separate building in the shopping centre separated from the building containing the Cheers Tavern by ground level car parks and a driveway which provides general access in the shopping centre. The other six shop premises which I have mentioned are between the Cheers Tavern and the car parks and driveways separating the two blocks of shops. The block of shops containing shop 14A is on a separate real property title from that containing the Cheers Tavern.
On 17 October 1999 Harburg lodged with the Chief Executive an application to increase the area of the general licence by including within it the area of the detached bottle shop. Prior to the making of the application a “Deed of Surrender and Compromise” was entered into between Harburg on the one hand as lessor and Michael and Jennifer White as lessees on the other. Under the deed the Whites agreed with Harburg that they would take whatever action was necessary to cause the detached bottle shop licence to be surrendered in favour of Harburg on 17 October 1999. Also on 18 October 1999, prior to the making of the decision to increase the area of Harburg’s general licence, the Chief Executive received an application from Mr White to decrease the licensed area of the general licence pertaining to the Brackenridge Tavern by excluding the area of shop 14A.
On 18 October 1999 the Chief Executive decided to accede to two applications.
The Chief Executive purported to increase the area of Harburg’s general licence under s 154 of the Act. Ecovale contends that s 154 permits the Chief Executive to extend the area of the licensed premises by including within it a further area or areas contiguous to the existing licensed area but does not permit the inclusion of areas not actually adjoining the existing area. Furthermore, it is contended that any application which, in effect, is an application for approval to operate detached premises under the authority of a general licence is required to be made under s 59(1)(d).
The provisions of the Act of particular relevance for present purposes are as follows –
“Authority of general license
59.(1) A general licence authorises the licensee –
(a)
to sell liquor on the licensed premises, for consumption on or off the premises, during ordinary trading hours or ordinary trading hours extended by an extended hours permit; and
(b)
to sell liquor on the licensed premises, for consumption on or off the premises, at any time to a resident on the premises; and
(c)
to sell liquor on the licensed premises, for consumption on the premises, at any time to a guest of a resident on the premises while the guest is in the resident’s company; and
(d)
to sell liquor on premises approved by the chief executive for sale of liquor under authority of the general licence, for consumption –
(i) off the premises; or (ii)
on the premises in the amount and in the circumstances prescribed by regulation.
…
(4) Premises approved by the chief executive for sale of liquor
under the authority of a general licence are taken to be part of thelicensed premised to which licence relates.
…
Variation of licence
111.(1) A licensee may make application to vary a licence by –
(a) altering the times when business may be conducted under authority of the licence; or (b) amending or revoking a condition of the licence.
(2) The chief executive may, on the chief executive’s own initiative, seek to vary a licence –
(a) in a way specified in subsection (1); or (b) by adding a condition to the licence.
(3) This section does not apply to an application for the chief executive’s approval to conduct business between 7 a.m. and 10 a.m.
(4) An application mentioned in subsection (3) may only be made by application for an extended hours permit under section 109A (Application for grant of extended hours permit).
…
Public need relevant to applications
116.(1) This section applies to an application for –
(a) a licence other than a club licence; or (b)
an approval under section 59(1)(d) (Authority of general licence); or
(c)
an extended hours permit that would extend trading hours on a regular basis.
(2) The applicant must satisfy the chief executive that the licence, approval or permit applied for is necessary to provide for the reasonable requirements of the public for liquor and related services in the locality to which the application relates.
(3) For the purpose of satisfying the chief executive about the reasonable requirements of the public as mentioned in subsection (2), an applicant must give information to the chief executive about the following –
(a)
the number and condition of licensed premises already existing in the locality;
(b)
the distribution of licensed premises already existing throughout the locality;
…
(e) any other relevant information that the chief executive asks the applicant to provide.
(4) In deciding the reasonable requirements of the public for liquor and related services in a locality, the chief executive must take into account information about the matters mentioned in subsection (3) and must have regard to –
(a) the population and demographic trends in the locality;
…
Advertisement of applications
118.(1) An application for the following must be advertised under this section –
(a) a licence or variation of a licence; (b)
approval under section 59(1)(d) (Authority of general licence);
(c)
an extended hours permit, or variation of an extended hours permit, that would extend trading hours on a regular basis;
(d)
another application that the chief executive requires, by written notice to the applicant, to be advertised.
Submissions on public need
118A.(1) If a notice about an application to which section 116 (Public need relevant to applications) applies is published as required by section 118 (Advertisement of applications), a member of the public may make a written submission to the chief executive about –
(a)
the reasonable requirements of the public in the locality to which the application relates; and
(b)
the matters to which the chief executive must have regard under section 116.
…
Alteration and maintenance of licensed premises
154.(1) The owner and licensee of licensed premises must give notice to the chief executive before altering or rebuilding the licensed premises.
…
(2) The owner or licensee of licensed premises must not, without
the chief executive’s approval, attempt to change the area of thelicensed premises by –
(a)
using an area that is not included in the licence as licensed premises, as if the area were part of the licensed premises; or
(b)
not using an area that is included in the licence as licensed premises, as if the area were not part of the licensed premises.
…”.
It may be seen that the procedure applicable to alterations of licensed premises under s 154 is far simpler than that governing applications for approval for use of premises as a detached bottle shop under s 59(1)(d). In the latter case -
(a)
the applicant for approval must satisfy the chief executive of matters prescribed by regulation including that conducting the proposed business on the premises is a permitted use under the relevant local government’s planning scheme: R 6D(1);
(b)
the applicant must satisfy the chief executive that the approval is necessary to provide for the reasonable requirements of the public for liquor and related services in the locality to which the application relates: s 116(2);
(c)
the chief executive must inform the local government for the relevant locality of the application and the local government then has a right to comment on the reasonable requirements of the public in the locality to which the application relates or to object to it on certain grounds: s 117;
(d) the application must be advertised; (e)
members of the public may make a submission to the chief executive about the reasonable requirements of the public in the locality to which the application relates: s 118A(1)(a);
(f)
members of the public may object to the grant of the application on specified grounds: s 119(1) and (e).
Subject to the argument advanced in the next paragraph, none of the above requirements apply to approvals under s 154.
Harburg further contends that, even if the chief executive could approve the application under s 154, it was nevertheless one which was required to be publicly notified under s 118(1)(a) as an application for a variation of licence.
It is conceded on behalf of the chief executive that the area of Harburg’s general licence could not have been extended to include shop 14A if no licence under the Liquor Act existed in respect of that premises at relevant times. However, it is submitted as follows on his behalf. Section 154 permits the inclusion in a general licence of a separate area which is already licensed. In other words, the re- allocation of licensed premises between two licences is acceptable but the addition to a licensed area of a separate previously unlicensed area is not. Section 59(1)(d) does not require the chief executive to approve premises in the event of such a permitted re-allocation because the approval already exists. Section 5(1)(d) is concerned with the initial approval process whereby premises are approved for the sale of liquor. Where the area to be included in the general licence is already the subject of a licence then there is no potential for conflict between the operation of s 59(1)(d) and s 54.
There is considerable force in the chief executive’s submissions. Where licensed premises comprising a detached bottle shop have already been the subject of the inquiry, public advertising and objection regime prescribed by ss 116, 117, 118, 118A and 119, there would not appear to be a great deal of merit in requiring the same ground to be covered where the only consequence of the granting of an application would be to make the detached bottle shop licence relate to a different licensed premises. The matters which the legislation makes relevant would not appear to be dependent on the locality of the general licence or the identity of the holder of that licence.
It is further submitted on behalf of the Chief Executive that a premises licensed under s 154 may consist of a single area (e.g. a hotel building standing on one allotment) or two or more areas (e.g. a single allotment on which stands a hotel building and one or more detached buildings containing a bottle shop or bottle shops). By operation of s 59(4) the area of any such detached bottle shop “(is) taken to be part of the licensed premises”. A detached bottle shop approval under s 59(1)(d) can exist only as part of a general licence. The argument continues that the reallocation of licensed premises between two licences is not caught by s 59(1)(d) as that provision does not require the Chief Executive to approve premises for the sale of liquor where such an approval already exists.
This argument fails to take account the effect of a successful application under s 59(1)(d). By operation of that provision, the applicant’s general licence authorises that applicant as the licensee “to sell liquor on premises approved by the Chief Executive …”. It contemplates that a particular premises will be approved by the Chief Executive as a detached bottle shop premises in relation to a particular general licence. An approval which, in effect, transfers a detached bottle shop from one general licence to another does more than “alter”, “rebuild” or “change the area of” licensed premises. It also changes the authority given by the general licence. The focus of s 154 is on changes in area of the premises the subject of the general licence rather than the addition or subtraction of a discrete bottle shop premises to be used in conjunction with the premises in respect of which the general licence was issued.
The logical consequence of accepting the Chief Executive’s argument would be to conclude that ss 59(1)(d) and 154 contain alternative procedures for the addition of areas for use as detached bottle shops to the area of a general licence. I consider that to be an unlikely construction of the Act. It would make the rather elaborate requirements for an application under s 59(1)(d) optional. The preferable approach to construction is to attempt to construe the provisions so that they operate harmoniously: see Project Blue Sky (supra) at 381-382.
The Chief Executive accepted that an application under s 59(1)(d) would have been necessary if the subject area had been unlicensed but, as mentioned above, it was submitted that s 59(1)(d) had no application because the subject area was part of an existing licence. However, there is nothing in the wording of s 154 which suggests that its operation is affected by the status of the area sought to be used in conjunction with the area the subject of a general licence.
Section 154 does not refer to the variation of a licence by varying its area or otherwise. Relevantly, it is concerned with permission to use an area not comprehended within a licence. It thus contemplates a state of affairs in which the licence may not be varied. Rather, permission may be given to permit that which is not authorised by the licence.
The limited scope of s 154(2) hardly suggests that it has an operation which is parallel to or overrides that of s 59(1)(d). Furthermore, it is not entirely clear that s 154 authorises the variation of a licence by the addition or subtraction of areas. Section 111 makes express provision for the variation of licences by –
“ (a) altering the times when business may be conducted under authority of the licence; or (b) amending or revoking a condition of the licence.”
Whether a variation in area comes within para (b) may depend on the wording of the licence.
There is another substantial difficulty with the Chief Executive’s construction. It is that Regulation 6C of the Liquor Regulation 1992 limits the number of detached bottle shops which may be held in conjunction with a liquor licence to two. It also imposes a requirement that the detached bottle shop premises be no more than 5 km by road from the main licensed premises. If the Chief Executive’s argument is accepted, it would mean that the holder of a general licence would be able to avoid the restriction in Regulation 6C by the expedient of obtaining the Chief Executive’s approval under s 154 to the incorporation in its general licence of detached bottle shops held in conjunction with another licence or other licences.
It was submitted on behalf of Harburg that Ecovale was not a “person aggrieved” within the meaning of the Judicial Review Act and was thus unable to seek judicial review. The thrust of the submission was that Ecovale, “apart from its position as a trade rival” had no greater interest in the Chief Executive’s decision than any other member of the public. It referred to Rayjon Properties Pty Ltd v Director-General, Department of Housing Local Government and Planning [1995] 2 Qd R 559, where it was concluded that the mere fact that it may be advantageous for an applicant for judicial review, as a commercial competitor, to see its rival, hindered, frustrated or delayed is not sufficient to make such an applicant a “person aggrieved”. It was further submitted that as the Chief Executive was considering an increase in the area of the licensed premises to include the existing bottle shop in the adjoining building, the applicant had no right to make submissions or to object.
The submission rather begs the question. If Ecovale’s submissions are accepted, it would have had the right to make submissions, to object and to appeal. It has been deprived of those rights if it was wrong of the Chief Executive to proceed under s 154. As Ecovale would have been entitled to participate in the decision to permit Harburg to operate a detached bottle shop, had appropriate procedures been employed, it is entitled to complain if the decision has not been properly made: R v Bowman [1898] 1 QB 663 at 665-666; Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 478 and Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 260, 261, 266.
Conclusion
For the reasons expressed above, the Chief Executive’s decision made on 4 October 1999 which purportedly extended the area of Harburg’s general licences was invalid.
I will hear submissions as to the appropriate orders to give effect to this decision.
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