Hall v Robinson and Licensing Court of NSW

[2005] NSWSC 1088

CITATION:	Hall v Robinson and Licensing Court of NSW [2005] NSWSC 1088
HEARING DATE(S):	22/08/2005
JUDGMENT DATE :	28 October 2005
JUDGMENT OF:	Howie J at 1
DECISION:	Summons dismissed. Plaintiff to pay the first defendant's costs.

CATCHWORDS:	Appeal on question of law from the Licensing Court - whether the Court had jurisdiction to deal with the application to remove an off-licence (retail) as an onconditional application - whether Court erred in exercising its jurisdiction to uphold a public interest objection to the application.
LEGISLATION CITED:	Liquor Act 1982 - ss 40, 45(2), 49(1), 49B, 49C, 57(3), 57(4), 58, 60, 146 Local Government Act 1991 Environmental Planning and Assessment Act 1979 National Competition Policy Liquor Amendments (Commonwealth Financial Penalties Act) Act 2004
CASES CITED:	Hill v King (1993) 31 NSWLR 654 Meagher v Bott & Anor (unreported, NSWCA, 15 November 1996) Cross v McHugh (1974) 1 NSWLR 500 Bradley v Fitzmaurice (1974) 2 NSWLR 285 Lorence v Abraham (1982) 2 NSWLR 551 OSullivan v Farrer (1989) 168 CLR 216 Jabetin Pty Ltd v Liquor Administration Board [2005] NSWCA 92 Mellor v Liquor Administration Board [2003] NSWSC 38 CJD v VAJ (1998) 197 CLR 172 House v The King (1936) 55 CLR 499 Water Conservation Commission v Browning (1947) CLR 492
PARTIES:	Brian Thomas Douglas Hall v Dean Robinson and Licensing Court of NSW
FILE NUMBER(S):	SC 12449/05
COUNSEL:	S.B. Austin QC with R. Scruby - Plaintiff B. Preston SC with A. Hatzis - 1st Defendant Submitting appearance - 2nd Defendant
SOLICITORS:	Back Schwartz Vaughan - Plaintiff Freehills, Solicitors - 1st Defendant I.V. Kight, Crown Solicitor - 2nd Defendant

LOWER COURT JURISDICTION:	Licensing Court of NSW
LOWER COURT JUDICIAL OFFICER :	Licensing Magistrates Collins, Kok and Ashton

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

FRIDAY 28 OCTOBER 2005

12449/05 BRIAN THOMAS DOUGLAS HALL v DEAN
ROBINSON AND LICENSING COURT OF NSW


JUDGMENT

Introduction

1 This is an appeal on a question of law from the Licensing Court pursuant to s 146 of the Liquor Act 1982 (the Act). That Court refused an application for the removal of an existing off-licence (retail) from one premises to another. The plaintiff appeals to this Court arguing that the Licensing Court erred in holding that it did not have jurisdiction to grant the application or in otherwise refusing the application in the purported exercise of its discretion to uphold a public interest objection that the premises or the plans for the premises were unsuitable.

2 In 2004 Woolworths Limited (Woolworths) operated an off-licence liquor shop in Casula that traded under the name of BWS. It was located in a group of commercial premises at the corner of the Hume Highway and De Meyrick Avenue on the western side of the Highway. Woolworths wished to cease trading at these premises and to move the licence to a new location on the eastern side of the Highway approximately a kilometre away from which it intended to trade at some time in the future. At the time of the application the proposed licensed premises were within a stand-alone building that was occupied by a retailer of baby ware and a lighting supplier.

3 This Court was informed that it is common practice, where an applicant proposes to remove an off-licence (retail) from one site to another, for the application to be made in one of two ways. First, where the premises to which the licence is to be removed are not yet in existence or where they are in existence but are to be added to or altered, a conditional application is made for a removal order. Such an application is permitted under s 40 of the Liquor Act 1982. The second type of application may be described as an “unconditional application”. It is made where the premises do not require any alterations and are ready to trade. Such an application is made pursuant to s 37 of the Act.

4 In the present case there was no doubt that the premises fell within the first category. The existing premises were not in a condition to permit Woolworths to immediately trade under the licence. They required at least substantial fit out appropriate to the retail trade in alcohol. For example, there was no cold storage facility in place. In the normal course of events, it would have been expected that Woolworths would make an application under s 40. That section is relevantly as follows:

40 Application for conditional grant

(1) An application:

(b) for removal of a licence,


may be made as a conditional application if the premises to which the licence will relate, or to which the licence is to be removed, are premises proposed to be erected, or premises proposed to be added to or altered, in accordance with an approved plan lodged with the application or are premises already erected in respect of which there is lodged with the application any consent required under another Act for the proposed use, or proposed change of use, of the premises.

(5) Before granting a conditional application, the court may require to be lodged with the court a further approved plan that shows an amendment required by the court to be made to the approved plan or plans previously lodged in relation to the application.

(6) In this section:
“approved plan”, in relation to proposed licensed premises, or a proposed addition to or alteration of licensed premises, means a plan of the proposed premises, or of the proposed addition or alteration, that is accompanied by any development consent required under the Environmental Planning and Assessment Act 1979 for the carrying out of the work represented by the plan, or evidence that such consent is not required.

5 Section 58 provides that, where an application is conditionally granted under s 40, the grant has effect only while an approval or consent required by another Act for the use, erection, addition or alteration to which the grant relates has effect. Section 60 gives a power to the Registrar of the Court to make a final grant of an application conditionally granted under s 40. In essence the final approval of a conditional application depends upon the production of evidence to satisfy the Registrar that the work of erection, addition or alteration has been completed substantially “in accordance with the approved plan” on the basis of which the conditional application was granted.

6 It has been held that, where an applicant does not at the time of lodgement of the application have any approval or consent required under the Local Government Act 1991 or the Environmental Planning and Assessment Act 1979 relating to the proposed erection, addition, or alteration of the premises to which the licence is to apply, the Licensing Court does not have jurisdiction to grant the application: Hill v King (1993) 31 NSWLR 654 at 660; Meagher v Bott & Anor (unreported, NSWCA, 15 November 1996).

A novel application

7 There is no dispute that, when the plaintiff made his application for removal of the licence on behalf of Woolworths, there was no approval or consent for the works which would undoubtedly have to be carried out to add to, or alter, the building erected at 580 Hume Highway, Casula. No such approval came into existence until 7 December 2004, many months after the lodgement of the plaintiff’s application on 27 May 2004. There was evidence that further work might be carried out that was not shown in the plan of December 2004 in order to create an access way to an adjoining road but no consent had been sought or given for that work by the date of the hearing.

8 On the face of it, there would appear to be no reason why the plaintiff could not have lodged a fresh application once he obtained the necessary consent. Had he done so, the application could have been made in the usual way as a conditional application under s 40 supported by the approved plans and thus the present litigation would have been avoided. The Licensing Court’s ultimate decision refusing the application was not given until 16 May 2005, so it would seem there was ample opportunity for the plaintiff to bring a conditional application after the approval of the plans in December 2004.

9 During the hearing before the Licensing Court some evidence was given on this issue. The Business Manager in charge of licensing for Woolworths at the relevant time stated that the company had not made an application for a conditional grant because at the date of lodgement of the application, May 2004, the company did not have a development consent in respect of the premises. But this did not explain why the plaintiff did not lodge a conditional application after 7 December 2004.

10 The Licensing Court postulated for itself that one possible reason why the plaintiff lodged an unconditional application in May 2004 was to avoid the effect of a significant alteration to the Liquor Act that was due to commence on 1 August 2004 and that might have had a significant impact on the plaintiff’s ultimate proposal. On that date the National Competition Policy Liquor Amendments (Commonwealth Financial Penalties Act) Act 2004 came into effect. This legislation, among other things, abolished the “needs” ground of objection in the Act and in its place required an applicant for the removal of an off-licence (retail) lodged after that date to prepare, and have approved, a social impact assessment before the Court could grant the application.

11 Whether the Licensing Court’s speculation on the point was valid or not, the plain fact is that the plaintiff could not make a conditional application under s 40 on the date he lodged the application because he did not then have the requisite approved plans. While he might have made such an application on or after 7 December 2004, he chose not to do so. Instead, the plaintiff elected to make his application by, what appeared to the Licensing Court to be, a novel method.

12 The plaintiff purported to make an “unconditional” or “straight out” application under s 38 of the Act in respect of premises that were, as at the date of the hearing of the application, unsuitable for trading under an off-licence (retail). The application was accompanied by a plan, unapproved by any consent authority, described as a “site plan”. This showed the allotment on which the proposed premises were situated, the general parking layout of the premises and the perimeter of the building erected on the land. But it showed no internal layout of the premises whatsoever. This was so despite the fact that the premises were certified, as required by the regulations, as “depicting the facilities to be provided”. None of those facilities were in fact displayed. For example, the plan failed to show any provision for cold storage, no indication that there would be any shelves for the display of products, no cashier facilities, no office facilities and no details of the additions that would be necessary to enable larger trucks to access the rear loading area.

13 In the course of submissions to the Licensing Court the defendant described the application as “an extraordinary one” in that it sought to license basically a box or an empty shell. The Licensing Court itself said:

“In an unusual approach which is adopted by the applicant it seeks to have licensed the building, without any depiction of the internal layout, and it puts forward two conditions which it submits would permit the court to be satisfied at a subsequent point of time as to the suitability of the proposed premises.”

14 In an attempt to overcome the obvious objection to the Court granting a licence to trade from unsuitable premises, the plaintiff agreed to be bound by two conditions to be attached to the licence. These were as follows:

“1. The licence is not to be exercised at 580 Hume Highway, Casula (“the premises”) without the approval of the Liquor Administration Board of New South Wales or the consent of the Licensing Court of New South Wales.

2. The licence is to be held by Brian Thomas Hall in a dormant capacity only and not to operate until transferred to a suitably qualified licensee.”

15 Despite the obvious misgivings about this procedure raised by the Licensing Court during the hearing of the application, the plaintiff did not budge from the mechanism that had been devised to overcome the situation in which he found himself. The plaintiff argued that the premises were complete at the time of the application and he merely sought to have the structure of the building licensed leaving the determination of the appropriateness of the premises to a later time when Woolworths actually wished to commence trading.

16 One of Woolworth’s principal competitors, Liquorland (Aust) Pty Ltd (Liquorland), objected to the application through the defendant. One of the objections taken was in the following terms:

“It would not be in the public interests to grant the application for the following among other reasons:

the premises to which it is proposed to move the licence and the plans of those premises are unsuitable and/or objectionable.”

17 There were other objections relied on by the defendant but none of these was successful. The Licensing Court, however, upheld the objection set out above and declined to exercise its discretion in favour of the plaintiff. Notwithstanding that this finding was sufficient to determine the application, the Court went on to consider whether, in any event, it had jurisdiction to hear the application and determined that it did not.

18 Before considering the reasons of the Licensing Court for rejecting the application, it is necessary to note one thing regarding the two conditions which were offered to that Court as part and parcel of the unconditional application. It is apparent that it was not the situation that these proposed premises were to hold the licence in a dormant capacity on the basis that no trade would ever be carried out from them. Rather, the position was that there was a clear intention to trade from those premises in the future, although the details of the internal fit out of the shop and perhaps the external layout were not to be particularised until some unstated future time when permission would be sought from the Liquor Administration Board or the Licensing Court to trade under the licence.

19 The basis of the plaintiff’s challenge to the Licensing Court’s decision may be stated very simply. He claims that the Court’s finding that it had no jurisdiction was erroneous. In addition, he asserts that its decision to uphold the public interest objection that the plans and premises were unsuitable is infected by error of law. There is a third complaint that the Licensing Court’s ultimate exercise of discretion miscarried.

The Licensing Court’s decision

20 After setting out the circumstances surrounding the application that have been outlined above, the Licensing Court considered a “needs” objection raised under s 45(2) of the Act concerning whether the needs of the public could be catered for by existing facilities either inside or outside the neighbourhood in which the proposed premises were located. The Court, relying upon evidence called before it, concluded that the premises from which the licence was being removed and the premises that were the subject of the application before it were in the same neighbourhood and, therefore, the “needs” ground of objection under s 45(2) was not available to the objectors: see s 57(4) of the Act.

21 The Court then considered the objection taken under the public interest ground relating to the unsuitability of the plans and the premises. The Court noted that there had been successful applications in the past in circumstances where the repository of the licence was basically a box or an empty shell. But it also noted that in none of those applications had objection been taken and so the issue had not been fully argued. The Court referred to the concern expressed during the hearing about the fact that the application was, on its face, a straight out application and also that there were no approved plans upon which the plaintiff was proceeding even though such a plan had come into existence on 7 December 2004. The Court noted that the plaintiff was not seeking to rely on that plan.

22 The Court at this point raised the possibility that it might not have jurisdiction to hear the application given that it doubted whether the application was genuinely an unconditional application rather than a conditional application under s 40. In this regard the Court referred to the plaintiff’s argument supporting the validity of the application and his reliance upon an earlier decision of the Court in relation to a licence for premises in Martin Place Sydney. The Court pointed out that the present application was arguably in a different category because the earlier application was entertained on the basis that the premises would be completed before the conclusion of the hearing.

23 The Court posed for itself the question raised by the public interest ground of objection, as follows:

“From a public interest perspective are the plans and the premises suitable as they are presently proposed?”

To answer this question the Court referred to a number of provisions of the Act and the obligations that they imposed upon the Court when determining whether to approve an application. The Court noted that the Act and Regulations did not differentiate between categories of licences and there was a general requirement that an application be supported by a plan of the premises to which the licence is to be removed. The Court referred to statutory requirements that needed to be satisfied before a licence could be granted and which required an examination of the plan accompanying the application. These included ss 49(1), 49B and 49C. Although the Court had little doubt that the applicant would ultimately comply with these requirements, it noted that the Court was not in a position to make this finding when there was no internal fit out identified on the plan accompanying the application for inspection by the Court.

24 The Court rejected the plaintiff’s submission that the condition that the licence would not be exercised without the approval of the Court or the Liquor Administration Board should ensure that the provisions of the Act were complied with before trading commenced. The Court stressed that s 49C imposes an obligation on the Court to be satisfied that specific requirements will be met before granting an application for the removal of the off-licence (retail) and that, without a proper plan of the fit out of the premises, it could not be satisfied that those requirements would be met.

25 The Court was also concerned at the implications for granting such an application and expressed the view that it was, as a matter of policy, undesirable that applicants should come before the Court to have an application determined in a general way while leaving the question of the suitability of the premises to be determined on some subsequent application by either the Board or the Court. The Court was of the view that it was not in the public interest that “such a double consideration of cases, in effect, be permitted” particularly as s 40 contained a mechanism whereby an applicant could be brought even though the premises had not been constructed or were to be altered or to have additions made to them. In relation to such a conditional application the Court would have before it precisely what it was the applicant proposed; and could, therefore, determine its suitability before making the conditional grant.

26 The Court then held:

“It is for these reasons that we are satisfied that the public interest ground of objection had been established.”

27 This finding led the Court to consider, what it described as, an issue raised “in a subsidiary way”: being whether or not the applicant was entitled to make the application in its present form. The Court noted that the issue had not been raised directly by the objector but it said that it needed to be satisfied itself that it had jurisdiction to determine the application.

28 It was in respect of this issue that the Court considered the possible motive of the plaintiff in proceeding as it had done by way of a straight out application, notwithstanding that at the date of the application it did not have development consent in respect of the premises, and yet at the time of the hearing had development consent to a plan that it did not seek to rely upon. It was in these circumstances that the Court raised the spectre of the amendments to the Act that came into force on 1 August 2004.

29 In any event, the Court noted the facultative nature of s 40 and that the section permitted a conditional application to be made where the fit out of premises (or other alterations or additions) had not been carried out prior to the lodgement of the application. It noted that in the present case the plaintiff was relying upon a plan that did not propose any alterations or conditions. The Court observed, however, that to bring the premises to a state where they were fit to be licensed the premises would require alterations and additions to the existing building.

30 The Court did not accept that the mechanism proposed by the applicant, namely the imposition of a condition having the effect of deferring the final assessment of the suitability of the proposed premises, permitted it to bring the present application as a straight out application. It noted that, although the applicant had a development approval of the 7 December 2004, s 40 required that that approval had to be in existence prior to the lodgement of the application. The Court concluded that the applicant could not convert the straight out application to a conditional one because its development consent postdated the lodgement of the application. The Court determined that it had no jurisdiction to determine the application.

31 The Court then considered a number of other objections “to cater for the possibility that the determination in relation to jurisdiction might be wrong”. These included public interest objections on the basis that the removal of the licence would inconvenience members of the public resident in, and frequenting, the neighbourhood and that the granting of the application would result in an inappropriate location and distribution of licensed premises throughout the neighbourhood. The Court in effect rejected these objections and determined not to exercise its discretion to refuse the application on these grounds.

32 Before finally determining the application, the Court returned to the proposed conditions and gave consideration to a proposal by the plaintiff that, despite the application being a straight out one, it would be open to the plaintiff to approach the Registrar for a deferral on the endorsement of the licence so that actual trading at the new premises would not be authorised until a later date and thus permitting Woolworths to continue trading at the existing premises until the proposed premises were ready to trade. The plaintiff relied upon s 57(3) of the Act that provides that the granting of an application to remove a licence takes effect when the Registrar endorses that the licence applies to the new premises.

33 The Licensing Court was not impressed by this proposal, finding that it was unsatisfactory for reasons it gave based upon the provisions of the Act. It stated that the proposal confirmed the “artificiality” of the applicant’s course of action in bringing a straight out application rather than a conditional application. The Court explained that, had the plaintiff taken the latter course, he could have continued to trade from the existing premises until ready to move to the new premises without any need for the Registrar to defer endorsement of the licence. In any event, the Court did not accept that the Registrar had the power to decide at which point of time to endorse a licence that had been unconditionally granted by the Court. In the Court’s view, the endorsement on the licence was to give effect to the Court’s order and should occur as soon as practicable, if not forthwith, after the making of that order.

The Court reiterated its view that there was no jurisdiction in the Court to hear the present application but in any event upheld the objection to the unsuitability of the plans and premises and refused to exercise its discretion to grant the application nevertheless.

Resolution of the legal issues
Public interest objection

34 In determining whether there is an error of law disclosed in a decision of the Licensing Court, it is necessary for this Court to read the decision of that Court fairly in order to understand what the Court intended to convey by its reasons: Cross v McHugh (1974) 1 NSWLR 500 at 503. It is clear that the Licensing Court considered fully the ground of objection relating to the unsuitability of the plans and premises, the subject of the application. It gave detailed reasons why it took the view that this ground of objection had been established

35 It is clear of course the Licensing Court has a discretion to grant or refuse an application notwithstanding the making out of a ground of objection; Bradley v Fitzmaurice (1974) 2 NSWLR 285; Lorence v Abraham (1982) 2 NSWLR 551; see also O’Sullivan v Farrer (1989) 168 CLR 216 at 217. In my view, the Licensing Court clearly took into account the various matters that it had found in favour of the applicant on the other grounds of objection when determining whether to exercise its discretion in favour of the plaintiff. It concluded, however, that there were “no counter-prevailing considerations” which would warrant the Court exercising a discretion to grant the application notwithstanding the finding in relation to the unsuitability of the plans and premises.

36 The plaintiff first argued that the Licensing Court’s finding on the public interests objection was predicated upon the considerations it examined in relation to the jurisdictional question. I do not accept that a fair reading of the reasons of the Court shows this to be so. The public interest ground of objection comprised a completely independent ground for refusal of the application. Moreover the Licensing Court treated it in this way during the course of its reasons. True it is that there is some intermingling of issues relating to the jurisdictional question and the public policy objection because to some extent they arose from similar considerations. But it seems plain to me that the Court dealt with objections independently of the decision on jurisdiction and was at pains to make this clear. It noted that the jurisdictional issue was a subsidiary one and proceeded to consider that issue only after it had dealt with the public interest objection.

37 The determination of this objection was decisive to the application and it was strictly speaking unnecessary for the Court to consider the issue of jurisdiction, except to satisfy itself that it had jurisdiction to determine the application. Had the Court simply determined the matter on the basis of the public interest objection, I cannot see how it could be argued that any error of law occurred in the determination of what was essentially a question of fact. Even if the Court was in error in determining that it had no jurisdiction, I do not understand why that finding should be seen as infecting the determination of the public interest objection simply because the two issues raised somewhat similar considerations. They were not interdependent issues and were not, in my opinion, treated as such by the Court. It was simply the case that in determining the objection, the issue of jurisdiction was raised in the Court’s collective mind.

38 The second argument raised was that, if the Court does possess jurisdiction, it could not dispossess itself of that jurisdiction by making a finding that an application at the present time was not in the public interest. Thirdly, the plaintiff argued that there was no “double consideration” of the application involved in the present application having regard to the manner in which it was formulated.

39 In my view it is clear that the structure of the Liquor Act and the nature of the jurisdiction possessed by the Licensing Court require in most, if not all applications, that the Court undertake an examination of the plans of the proposed licensed premises. The Court must necessarily be satisfied of a number of statutory requirements before it is empowered to grant an application: see, for example, the requirements of s 49C referred to in detail in the Licensing Court’s decision. Further, that Court is required to make sure that the licensed premises will be suitable in a general sense for the proper sale and disposition of liquor. The Act does not permit this function to be delegated to another body or person. While it is true that the Act contemplates that amendments may be made at later stages to approved plans, that is a very different situation to the one that presented itself before the Licensing Court by the plaintiff’s application and it is not a proper analogy.

40 It was the plaintiff’s plain intention to trade from these premises at a time selected by itself in the future and yet to continue trading under the licence at the existing premises. This was not, in my view, a true dormant licence situation despite the second proposed condition. Mason P described his understanding of a “dormant licence” in Jabetin Pty Ltd v Liquor Administration Board [2005] NSWCA 92 at [47] as “a non-statutory concept referring to a continuing but inactive licence that has not been suspended or cancelled, but that relates to a temporally non-existent hotel and/or business”. That was not this case. For whatever reason, the plaintiff simply refused to ask the Court to fill the gap, as it were, by treating the approved plans as the plans upon which it would ultimately rely. The plaintiff specifically refused to allow the Court to act on the basis of the Council approved fit out obtained in December 2004.

41 As a consequence, the Licensing Court was left in a position where it was being asked to license the building outline rather than the proposed internal fit out of the premises. While the Court acknowledged that an experienced liquor retailer such as Woolworths would be unlikely to put forward, in the ultimate, an unsatisfactory fit-out plan, nevertheless the Licensing Court itself was left in an unsatisfactory situation because it simply had no evidence before it which would enable it to be satisfied as to the statutory matters it had to consider. Nor could it make a finding as to the general suitability of the lay out of the premises.

42 The artificiality and inappropriateness of the course that the plaintiff insisted upon was manifest in my opinion, in the proposal that the endorsement of the licence by the Registrar be deferred until the plaintiff was ready to trade from the new premises. I agree, with respect, with the view expressed by the Court that endorsement of the licence should not depend upon the convenience or wishes of the plaintiff but follow upon the order of the Court.

43 In addition, the Licensing Court rightly opined, in my view, that it was unsatisfactory that the Court or the Board at some unknown future point in time would be required to return to the issue and make an assessment as to the suitability of the premises and then to determine whether any statutory requirement in respect of the lay out of the premises had been met. In my view the Licensing Court was entitled to consider this to be a “double consideration” that was not in the public interest. I believe that it was open to the Licensing Court to determine that it was not in the public interest for it to approve the removal of the licence on the basis of the inadequate plans that were relied upon by the plaintiff. On a fair reading of the Court’s reasons I am unable to ascertain any error of law in relation to this ground of objection.

The finding that the Court lacked jurisdiction

44 The plaintiff’s argument was to the effect that it was not required to proceed under s 40 because that section does not prevent an application for a straight out removal of a dormant licence even where the premises to which the licence is to eventually apply are not completed or need addition or alterations before being suitable to trade. Whether the applicant proceeded under s 40 or not was, so the argument ran, a matter for the unrestrained discretion of the applicant; the section prescribed a permissible means of proceedings not a mandatory one. It argued that the Court had a wide power to impose conditions upon a licence even a dormant one: see Mellor v Liquor Administration Board [2003] NSWSC 38. Therefore, the Court had jurisdiction to determine the application without requiring that there be an approved plan of the fit out of the premises. In my opinion for largely the reasons given by the Licensing Court the argument is misconceived.

45 The Licensing Court decided in effect that the proper construction of the Liquor Act required that an application be brought under s 40 in circumstances where the premises to which the licence is to be removed were not yet in existence or required additions or alterations to make them suitable to trade and, hence, to be licensed. For the Court to have jurisdiction to hear such an application, however, there must be an approved plan. There was no approved plan in the present matter in the sense that the plaintiff refused to rely upon the approved plan he had obtained on 7 December 2004.

46 The corollary of the proposition is that an applicant for the removal of a licence need not have an approved plan if the premises to which he proposes to move his licence are already completed in terms of fit out and ready to trade. This may be the case at the time of lodgement of the application but it must certainly be the case, at the very latest, by the time the application is heard. Despite the ingenuity of its arguments, the plaintiff was not in this position either at the time of lodgement of the application or at the time of the hearing.

47 The Licensing Court was plainly satisfied that the plaintiff’s stratagem in making an unconditional application and proffering conditions that sought to postpone an examination of the suitability of the future layout of the premises was an artificial device to avoid the requirements of the Act. The application was not a genuine unconditional application but was, in truth, a disguised conditional application where a sound jurisdictional basis in the form of an approved plan was entirely absent.

48 A convenient starting point for considering this issue is to acknowledge that the Licensing Court possesses an undoubtedly wide jurisdiction. This jurisdiction, however, is not unlimited. The discretion conferred upon the Licensing Court by the grant of power is limited by the subject matter of the legislation, its nature, scope and purpose: Water Conservation Commission v Browning (1947) 47 CLR 492; O’Sullivan v Farrer (1988) 168 CLR 210; CJD v VAJ (1998) 197 CLR 172 at (53).

49 The present appeal, however, does not require this Court to examine the width of the power granted to the Licensing Court. It is necessary only to examining the structure of the Act to determine the legislative intent in relation to the manner of the making of applications for the grant or removal of licences.

50 The scheme of the Act is quite clear. The Act enables an unconditional or straight out application either for the granting, or the removal, of a licence to be made in circumstances where the premises, the subject of the application, are completed to a stage suitable to be licensed either at the time of lodgement of the application or, at the very latest, by the date of the hearing of the application. In my opinion the Court does not have jurisdiction to grant an unconditional application for removal of an off-licence (retail) to proposed premises where those premises are not complete either at the date of lodgement or, at the very latest, by the date of hearing. As a general proposition, premises that have not been fitted out so as to make them suitable to trade as licensed premises are premises that are incomplete at the relevant time.

51 It is necessary to qualify these statements in two respects. First, it may be, in an unusual situation, that very little, if any fit-out is to take place in licensed premises. This would hardly be the case in a hotel or a modern restaurant but it could be the case in a situation of an off-licence (retail) where, for example, “primitive” conditions were proposed as part of a marketing exercise based on discount liquor policies. This decision is not intended to cover such a situation and it is to be noted that the Court is concerned with the specific situation of the plaintiff in this case. That situation was one where the plaintiff was the nominee of Woolworths, an experienced liquor retailer in New South Wales and throughout Australia. The Court is entitled to infer, as was the Licensing Court, that the level of fit out in stores operated by Woolworths in New South Wales, is likely to be of very good quality and detail.

52 The second qualification on these general remarks relates to the situation of dormant licences. A number of the arguments presented before the Court recognised, as is undoubtedly the case, that dormant licences exist. They may be the subject of conditions and variations of conditions: Melllor v Liquor Administration Board at [79] to [80]. It seems that the Licensing Court in the past has permitted unconditional applications for removal of dormant licences to premises where no trade was contemplated, for example to an accountant’s offices pending a subsequent removal to trading premises. It will not be unusual to find a licence being removed to some premises quite inappropriate for the trade of liquor as a stop gap measure, for example where the licensed premises have been destroyed by fire or otherwise. Nothing in this decision is intended to suggest that the Court does not have power to grant applications for a removal of licence either with or without conditions in such situations.

53 As has already been noted, the usual notion of a dormant licence, that is a licence connected to premises for non-trading purposes, is clearly distinguishable from the position in which the present plaintiff found himself. Here it was Woolworth’s intention to trade at these very premises although it wished to postpone the provision of information to the Court or the Liquor Administration Board relevant to the timing of the trading and the nature of the fit out of the premises to make them suitable for trade.

54 It seems to me to be clear from a realistic and common sense reading of the Act that a straight out or unconditional application is appropriate where the grant of the licence will take immediate effect so as to authorise trading from the premises in the form in which they exist at the date of the granting of the application. In this regard, I agree with the written submissions of the first defendant which state:

“Construed in this way, the legislative scheme has integrity. It enables valid and effective objections to be made to straight out or unconditional applications and ensures proper, genuine and realistic consideration by the Court of such applications and relevant matters concerning the application.”

55 The structure of the Act, however, recognises that it may be undesirable, inconvenient and expensive for an applicant to bring an unconditional application in a situation in which it is not ready to trade from the premises. It is for this reason, in my opinion, that s 40 exists in its present form. This section enables an applicant to bring an application before the Court where the nature of the proposed premises, from which it intends to trade in the future, is disclosed in an approved plan. The “premises” may well be vacant land at the time the application is brought: see the definition of “premises” in s 4 of the Act. Yet the Licensing Court is able to carry out its functions and to formulate a view as to whether that licence should be conditionally granted well before the applicant is called upon to expend extensive funds in erecting the premises or altering them, as the case may be. Of course it may be that the application is defeated on objections that have nothing to do with the nature of the premises to be erected or the suitability of the fit out of the premises for trade under the licence.

56 Section 40 of the Act is clearly facultative: it enables the making of an application in the circumstances where it would be unreasonable to delay an application for the grant of a licence or for its removal until the premises are in a state fit to trade. Its main purpose is to address the problem that would arise with a straight out or unconditional application under s 37 of the Act made in respect of premises to be erected or premises to be added to or altered. The scheme of the Act is, however, that there are safeguards and measures in the legislation to ensure proper consideration of a conditional application and any later amendment to it. These measures include the obtaining of development consent prior to the lodging of a conditional application; and the examination of the approved plan by the Licensing Court to make sure that it is satisfied that the plan is satisfactory and answers all statutory demands. Section 40 itself contemplates that the work to be carried out to the proposed premises will be carried out “in accordance with the approved plan”. Where the development consent lapses, the conditional grant also lapses (s 58 of the Act). There is also a procedure for the amendment of a conditional grant in s 40(3) of the Act. Finally there is the obligation on the Registrar to ensure that the premises are completed substantially in accordance with the approved plan before the final grant of the application: see ss 60(1) and (2) of the Act.

57 In my opinion the structure of the Act shows plainly that the Licensing Court is entitle to insist, in a jurisdictional sense, that applications for the granting or for removal of licences are to be made as conditional applications where the premises proposed as licensed premises are to be erected, added to or altered before they are in a fit state to trade under the licence. For the same reason, the Licensing Court is entitled to insist that the safeguards or measures designed to protect the scheme of the Act are not bypassed by the type of artifice employed by the plaintiff to avoid the scrutiny of an application under s 40 for whatever reason.

58 In my opinion, the Licensing Court is entitled to be able to determine an application by considering objections and the requirements of the Act on the basis of a real understanding of how the premises are to operate under the licence. This is so whether the application is a straight out one, in which case the Court will be able to consider the existing premises in a state in which it is intended to trade from them at the time of the hearing of the application, or a conditional application, in which case the Court will be able to consider the approved plans. I can see no sensible basis for the Act being construed to permit the applicant to have a discretion as to whether to proceed as a straight out application or as a conditional application at it’s whim with the accompanying inconvenience to the Court, the Board and interested parties and delaying unnecessarily the finality of the Court’s determination of the application. This is notwithstanding the use of the word, “may” in s 40.

Did the exercise of discretion miscarry?

59 As was earlier noted, the Licensing Court has a clear discretion to grant or refuse an application notwithstanding that the Court had upheld an objection. Whether an error of law occurs in relation to the exercise of a discretion depends upon the frequently stated and well known principles in House v The King (1936) 55 CLR 499. In the present matter the plaintiff has argued that the Licensing Court did not take into account those matters that it had found in the plaintiff’s favour during the hearing. These were the findings that the removal of the licence would not result in inconvenience to members of the public resident in and frequenting the neighbourhood; and that the grant of the application would not result in an inappropriate distribution of licensed premises throughout the neighbourhood. The Licensing Court of course did indicate that, were these the only matters of objection, it would have exercised their discretion in the plaintiff’s favour.

60 In relation to the public interest ground of objection the Court said:

“We have found that the ground of objection in relation to the unsuitability of the plans and the premises is established. That being the case and that there are no counter-prevailing considerations which would warrant us exercising a discretion to grant the application despite that finding we refuse the application.”

61 Once again there is a need to read the Licensing Court’s decision fairly. It could not be said, in my opinion, that the Court overlooked the fact that it had found a number of objections in favour of the plaintiff earlier in its decision. The words of the final paragraph set out above satisfy me that the Licensing Court did give consideration to the matters which the plaintiff has argued it overlooked.

62 It was also argued that the Court took into account an irrelevant consideration being the motivation of the plaintiff to proceed in the way he did. The Court did muse about whether the purpose of the procedure adopted was to avoid the consequences of the amendment to the Act that has been referred to earlier in this judgment. But a fair reading of the judgment shows that the reference to this matter was no more than idle reflection on the part of the Court as to why the plaintiff wanted to proceed as it was rather than relying upon the motivation of the plaintiff to avoid the effects of the amendment in determining either to uphold the public policy objection or in exercising the discretion to reject the application.

63 This matter was not raised until after the Court had determined the public policy objection against the plaintiff. It arose in the context of the Court referring to the explanation given by Mr Smith, the Business Manager of Woolworths, for proceeding by way of a straight out application rather than a conditional one. This passage comes at the outset of the Court’s consideration of whether it had jurisdiction to determine the application. After referring to the explanation proffered by Mr Smith, that the company did not have at the time of the application any approved plans, the Court stated:

“It may have also been the case, although Mr Smith was not asked as to whether it was, that the proposed commencement of the National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Act 2004, which was due to commence on 1 August 2004 was a relevant factor in making the application before that date.”

Apart from going on then to give a brief account of the effect of that amending Act, the Court never again returned to the subject.

64 It could not reasonably be concluded from this reference that the Court thought that in some way this was a matter to be taken into account to the detriment of the plaintiff on any decision it had to make. This reference does not suggest to me that the Court thought that in any way this was a relevant consideration to any finding it made let alone the exercise of the discretion that comes some thirteen pages later after the Court had dealt with the other objections in favour of the plaintiff. I do not believe that it can on a fair reading of the whole of the reasons of the Court lead to a conclusion that this reference to the amending legislation infected in any way the exercise of the Court’s discretion.

65 The orders are:

1. Summons dismissed.
2. Plaintiff to pay the first defendant’s costs.

Exhibits may be returned.

**********