Executive Director of Public Health v Lily Creek International Pty Ltd

[2001] WASCA 410 (S)

EXECUTIVE DIRECTOR OF PUBLIC HEALTH -v- LILY CREEK INTERNATIONAL PTY LTD & ORS [2001] WASCA 410 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 410 (S)
Court:	THE FULL COURT (WA)
Case No:	FUL:74/2001	Heard:	24 AUGUST 2001 & 28 MARCH 2002
Coram:	WALLWORK J WHEELER J MILLER J	Delivered:	14/12/01
Supplementary Delivered:	14/05/02
No of pages:	12	Judgment Part:	1 of 1
Result:	Order made
Category:	B
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Parties:	EXECUTIVE DIRECTOR OF PUBLIC HEALTH LILY CREEK INTERNATIONAL PTY LTD PETER JOHN SAYERS DEBORAH LEE SAYERS AUGZEN PTY LTD AAPC PROPERTIES PTY LTD
Catchwords:	Liquor licensing Hotel licence conditions Restrictions Jurisdiction of court to make orders
Legislation:	Liquor Licensing Act 1988, s 41, s 63, s 64, s 108
Case References:	Executive Director of Public Health v Lily Creek [2001] WASCA 410 Executive Director v Lily Creek (2000) 22 WAR 510 FACAC Pty Ltd v Talbot Hotel Group Pty Ltd [2001] SASC 445 McAdam v Robertson (1999) 73 SASR 360; [1999] SASC 169 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : EXECUTIVE DIRECTOR OF PUBLIC HEALTH -v- LILY CREEK INTERNATIONAL PTY LTD & ORS [2001] WASCA 410 (S) CORAM : WALLWORK J

WHEELER J
MILLER J

HEARD : 24 AUGUST 2001 & 28 MARCH 2002 DELIVERED : 14 DECEMBER 2001 SUPPLEMENTARY
DECISION : 14 MAY 2002 FILE NO/S : FUL 74 of 2001 BETWEEN : EXECUTIVE DIRECTOR OF PUBLIC HEALTH

Appellant (Intervener)

AND

LILY CREEK INTERNATIONAL PTY LTD
First Respondent (Applicant)

PETER JOHN SAYERS
DEBORAH LEE SAYERS
Second Respondents (First Objectors)

AUGZEN PTY LTD
Third Respondent (Second Objector)

AAPC PROPERTIES PTY LTD
Fourth Respondent (Third Objector)

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Catchwords:

Liquor licensing - Hotel licence conditions - Restrictions - Jurisdiction of court to make orders

Legislation:

Liquor Licensing Act 1988, s 41, s 63, s 64, s 108

Result:

Order made

Category: B

Representation:

Counsel:

Appellant (Intervener) : Mr G T W Tannin
First Respondent (Applicant) : Mr Mr G D Crocket
Second Respondents (First Objectors) : No appearance
Third Respondent (Second Objector) : No appearance
Fourth Respondent (Third Objector) : No appearance

Solicitors:

Appellant (Intervener) : State Crown Solicitor
First Respondent (Applicant) : G D Crocket & Co
Second Respondents (First Objectors) : No appearance
Third Respondent (Second Objector) : No appearance
Fourth Respondent (Third Objector) : No appearance

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

Executive Director of Public Health v Lily Creek [2001] WASCA 410
Executive Director v Lily Creek (2000) 22 WAR 510
FACAC Pty Ltd v Talbot Hotel Group Pty Ltd [2001] SASC 445
McAdam v Robertson (1999) 73 SASR 360; [1999] SASC 169



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Case(s) also cited:

Nil

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1 JUDGMENT OF THE COURT: The background to this matter is to be found in the decisions of this Court in Executive Director v Lily Creek (2000) 22 WAR 510 ("Lily Creek No 1") and in Executive Director of Public Health v Lily Creek [2001] WASCA 410 ("Lily Creek No 2").

2 A question has arisen as to the jurisdiction of the court to make orders giving effect to the view expressed in Lily Creek No 2, which was put in the following way in the reasons for decision of Wallwork J in that case (at [40]):

" ... another condition should be imposed so that persons who are not guests or guests of guests, will not be able to drink at a bar on the premises and then walk across the highway in an alcohol affected condition ... ".

As Wallwork J notes in Lily Creek No 2, the Full Court was informed that the question of persons buying liquor from the bar was not discussed in detail at the hearing of the application. Having reviewed the transcript of the appeal hearing in Lily Creek No 2, we think it is fair to say that the court from time to time expressed the view that it was undesirable that those who are not either guests or the guests of guests should be able either to drink at the proposed premises or to buy packaged liquor there, but that, despite those references, the discussion at the hearing of the appeal was overwhelmingly concerned with the question of whether there should be a prohibition or a restriction upon the sales of packaged liquor, rather than upon the ability of any person to drink at the premises.

3 Notwithstanding the occasional references during the course of argument to the question of persons drinking alcohol on the premises, a condition in the terms indicated by Wallwork J appears not to have been in the contemplation of the parties when the court delivered its reasons for decision in Lily Creek No 2 on 14 December 2001. Because the alternative draft minutes of orders prepared on behalf of the appellant did not reflect the views expressed in those reasons and because it was not convenient to formulate an order in those terms at the time, the parties were given liberty to apply in relation to the precise form of the conditions which should be imposed. It was not intended that that liberty to apply should give rise to further consideration of the desirability of making an order containing a condition of the kind which had been indicated by the court in its reasons.

4 However, it subsequently appeared that the parties were not able to agree upon an appropriate form of order. The matter was relisted before us in February with a view to the finalisation of orders and on that

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occasion the first respondent, represented by a director, raised the question of the court's jurisdiction to make such an order and sought an adjournment in order to obtain legal advice.

5 On 28 March this year, the matter was relisted in order to deal with that jurisdictional argument. The appellant conceded that if there was a real issue as to the jurisdiction of the court to make an order in the terms proposed, then that matter ought to be resolved notwithstanding that it had not been the subject of submission on the hearing of the appeal. This is not an appropriate occasion to consider in detail the question of when a Full Court is able to re-open its own earlier decision in the same matter, a question discussed in some detail in the Supreme Court of South Australia in McAdam v Robertson (1999) 73 SASR 360; [1999] SASC 169. For the present, it is sufficient to accept that where there are no perfected orders and a real question arises as to the court's jurisdiction to make an order, it is generally desirable for the court to determine that jurisdictional issue; at least that is so where, as here, it appears that a party may have been taken by surprise in relation to the precise form of order likely to be made.

6 The relevant provisions of the Liquor Licensing Act 1988 are as follows:

"41. Hotel licences

(1) For the purposes of this Act –

(a) where a hotel licence is not subject to the condition referred to in subsection (4) it shall be referred to as a tavern licence; and

(b) where a hotel licence is subject to a condition –


(i) prohibiting the sale of packaged liquor to persons other than lodgers; and

(ii) restricting other sales to liquor sold for consumption on the licensed premises,

it shall be referred to as a hotel restricted licence,
and an application may be made for a tavern licence if the applicant does not seek a licence for a hotel

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offering accommodation, or for a hotel restricted licence only.

(2) Subject to this Act, during permitted hours the licensee of a hotel licence is authorised to keep open the licensed premises, or part of those premises, and, while those premises are open, is required –

(a) to sell liquor on the premises to any person for consumption on the premises; and

(b) unless the licence is a hotel restricted licence, to sell packaged liquor on and from the premises to any person.

...

63. Restriction on power to vary terms fixed or conditions imposed by the Act


The licensing authority may, of its own motion or on the application of the licensee –

(a) where the permitted hours applicable under section 97 to particular licensed premises are to be the hours specified in the licence or permit which relates to those premises, vary any term or condition specifying those hours;

(b) in relation to a particular licence, exempt that licensee from a requirement imposed by or under this Act to keep the premises open for the sale of, and to sell, liquor there during any particular day or part of a day;

(c) vary a hotel licence in accordance with section 41(6) or (7);

(ca) remove the restrictions on a club restricted licence so that it is converted to a club licence;

(cb) in relation to a hotel licence, other than a hotel restricted licence, vary the requirement under section 41(2)(a) to sell liquor, while the licensed premises are open, for consumption on

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the premises if the premises are temporarily damaged or rendered unsuitable by an unforeseen event;

(d) vary the terms of a club restricted licence in accordance with section 48(9); or

(e) vary, in such a manner as to become more restrictive, a term fixed or a condition specifically imposed by this Act in relation to the licence,

but is not otherwise empowered to vary or cancel a term specifically fixed or a condition specifically imposed by this Act, as distinct from pursuant to this Act, in relation to licences of that class or permits of that kind, except in relation to such provisions or circumstances as may be prescribed.

64. Power of licensing authority to impose, vary or cancel conditions

(1) Subject to this Act, in relation to any licence, or to any permit, the licensing authority may at its discretion impose conditions -


(a) in addition to the conditions specifically imposed by this Act; or

(b) in such a manner as to make more restrictive a condition specifically imposed by this Act,

and may vary or cancel any condition previously imposed by the licensing authority, having regard to the tenor of the licence or permit and the circumstances in relation to which the licensing authority intends that it should operate.

...

(3) Without derogating from the generality of the discretion conferred on the licensing authority, the licensing authority may impose conditions which it considers to be in the public interest or which it considers desirable in order to -

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...

(c) ensure that the safety, health or welfare of persons who may resort to the licensed premises is not at risk

...

(cc) minimize harm or ill-health caused to people, or any group of people, due to the use of liquor;

...

(5) A condition may be imposed under this section which varies the obligation imposed by section 108(2)(a).

...

108. Certain services to be provided


...

(2) The licensee of any licensed premises to which this section applies –

(a) subject to subsection (3) and any condition of the licence, shall not without reasonable cause (the burden of proof of which shall lie on the licensee) refuse –

(i) to receive a person on the licensed premises; or

(ii) to sell liquor there to any person,

at any time that the premises are open for business during permitted hours; or


... "

7 The first respondent asserts that by reason of those provisions, properly understood, it is not open to the court to impose a condition which contradicts the requirement in s 41(2)(a) which is to the effect that, whilst the premises are open, the licensee is required to sell liquor on the premises to any person for consumption on the premises. We think that this analysis is correct.
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8 Section 41 imposes three requirements on the holder of a hotel licence. One, relating to the provision of residential accommodation, is dealt with under subs (4) – (6) and it is not necessary to consider it. The other two are those set out in subs (2), being the requirement to sell liquor on the premises to any person for consumption on the premises, and (unless the licence is a hotel restricted licence) to sell packaged liquor on the premises to any person. So far as the condition in par (b) of subs (2) is concerned, there is provision in subs (7) for the licensing authority to vary that requirement (at any time or during any specific period). Section 41(1)(b) contemplates the imposition of a condition prohibiting the sale of packaged liquor to persons other than lodgers, in which case the licence is not an hotel licence simpliciter, but is to be referred to as a "hotel restricted licence".

9 Section 63 both expressly permits the licensing authority to impose conditions of the sort set out in that section, and, as the heading to the section suggests, imposes a restriction on the power of the licensing authority to vary conditions imposed by the Act. Having recited what conditions may be imposed pursuant to s 63, that section provides that the licensing authority is "not otherwise empowered to vary or cancel ... a condition specifically imposed by this Act, as distinct from pursuant to this Act, in relation to licences of that class". The condition or requirement that the licensee of an hotel must sell liquor on the premises to any person for consumption on the premises is plainly a condition imposed by, rather than pursuant to, the Act. We will return to the other provisions of s 63 in a moment.

10 Turning to s 64, the appellant argues that the power to impose a condition which would have the effect that the licensee of an hotel would not be permitted to give effect to the condition imposed by s 41(2)(a) is conferred by s 64. However, the power to impose conditions in s 64 is by subs (1), expressed to be "subject to this Act ... "; that is, it is subject to the prohibition on varying or cancelling conditions specifically imposed by the Act itself contained in s 63. Subsection (3) of s 64 is not in terms expressed to be subject to the Act. However, it commences with the words "Without derogating from the generality of the discretion conferred on the licensing authority ... ". This can only be a reference back to the discretion conferred pursuant to subs (1) of that section, to impose conditions at the licensing authority's discretion. It is our view that subs (3) of s 64 is no more than an amplification of the nature of the discretion conferred by subs (1) and must be read as subject to the same limitation.

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11 Our view that subs (3) of s 64 should be read in this way, and as not permitting the licensing authority to override the condition in s 41(2)(a), is fortified by the express terms of s 63. That section contains two provisions which would appear to allow the licensing authority to affect the requirement in s 41(2)(a), and each is apparently carefully limited in its scope. Section 63(b) gives power to exempt a licensee from "a requirement imposed by ... this Act to keep the premises open for the sale of, and to sell, liquor there during any particular day or part of a day" (emphasis supplied). Section 63(c)(b) expressly permits variation of the requirement in s 41(2)(a), but confined to the circumstance where the premises are temporarily damaged or rendered unsuitable by an unforeseen event. Both of those provisions, in our view, indicate a legislative scheme in which the licensing authority does not have a general power to impose conditions which vary the requirement imposed by s 41(2)(a). The only contrary indication appears to us to be found in s 64(5), which permits a variation of the obligation imposed under s 108(2)(a). That latter provision is a general one which prevents a licensee of any licensed premises from refusing either to receive a person or to sell liquor to them on the premises at any time the premises are open for business during permitted hours. Pursuant to s 108(1), the section applies in relation to premises licensed under any hotel licence or any special facility licence if the special facility licence so provides. In its application to a hotel licence, s 108(2) appears to be no more than a negative way of putting the positive obligation created by s 41(2)(a). It seems anomalous that the licensing authority is apparently specifically permitted to vary the negative requirement but not the positive one. However, although anomalous, it does not seem to us that the presence in the statute of s 64(5) is able to overcome what appears to us to be the clear words of the restriction in s 63.

12 Subsequent to the further hearing of the matter, the first respondent supplied to the court a copy of an unreported decision of the Supreme Court of South Australia, being FACAC Pty Ltd v Talbot Hotel Group Pty Ltd [2001] SASC 445. That case concerned the question whether the Licensing Court of South Australia could properly grant an hotel licence with a condition exempting the licensee from the obligation to keep the premises open for the sale of liquor during the hours specified in the Act. The court reviewed the provisions of the South Australian Liquor Licensing Act which, like the Act in this State, creates a variety of classes of licences with a variety of particular requirements attaching to each, and which gives a power to the licensing authority to impose conditions. Doyle CJ notes during the course of his reasons in that decision that (as is

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also the case with the West Australian legislation) over time the Act has given to the licensing authority a greater power than formerly existed to mould a licence, including an hotel licence, and to exempt a licensee from obligations. At [32] to [35], his Honour said:

"[32] ... I consider that the Act is still based on the fundamental concept of licence classes ... but I accept that the characteristics of each class and the boundaries between each class are less clear than they were in the past. The Act permits licences to be shaped or moulded to a greater extent than was possible under the former Act, and contemplates licences being shaped so as to permit trading in a way that would not have been consistent with the scheme of the previous Act.

[33] Just how far a court can go in a given case will depend upon the circumstances of the particular case, and will require the court to make what will sometimes be a difficult judgment.

[34] But in my view the applicant's proposal goes to a point to which the court cannot go. The hotel licence envisaged by the Judge would wholly exempt the applicant from the statutory conditions ... . To my mind that would go beyond the power to grant an exemption. The court would have departed from the fundamental statutory concept of a hotel licence.

[35] In saying that I did not mean the statutory concept of a hotel is the concept of a hotel as it was in the past. When I refer to the statutory concept of a hotel licence I mean the concept embodied in s 32 of the Act."

13 There is much to be said for the proposition that a similar analysis could be applied in the circumstances of this case. It is arguable that the statutory scheme identifies three essential characteristics of an hotel licence, but permits the imposition of conditions dispensing with two of them, those two being the requirements relating to the sale of packaged liquor and the requirement relating to the provision of accommodation. In those circumstances, it may well be said that the requirement to sell liquor on the premises to any person for consumption on the premises while the premises are open is seen by the legislature as fundamental to the concept of an hotel licence, and that a licence with a condition which varied this

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requirement would not in truth be an hotel licence properly so called at all. However, it is not necessary to determine that question, since in our view the same result is reached by reading the words of s 63 itself.

14 For those reasons, we are of the view that it is not open to the court to impose a condition which would prohibit the sale of alcohol for consumption on the premises to persons other than lodgers and guests of lodgers. It therefore seems to us appropriate to make an order which varies the decision of the Liquor Licensing Court by substituting for the grant of an hotel licence, an hotel restricted licence.

15 We now make that order.