Hannaslea Nominees Pty Ltd v Liquor Appeals Tribunal

[1994] QCA 464

IN THE COURT OF APPEAL	[1994] QCA 464
SUPREME COURT OF QUEENSLAND	Appeal No. 163 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. Derrington J.

[Stonewood Pty Ltd & Ors v. Hannaslea Nominees Pty Ltd &

Ors]

BETWEEN:

STONEWOOD PTY LTD (ACN 020 268 989)

First Appellant (Third Respondent)

AND:

WELLER HOTELS AND TAVERNS PTY LTD (ACN 010 575 176)

Second Appellant (Third Respondent)

AND:

ROSIE'S TAVERN PTY LTD (ACN 010 468 121)

Third Appellant (Fourth Respondent)

AND:

WELROWL PTY LTD (ACN 009 977 146)

Fourth Appellant (Fifth Respondent)

AND:

ZENA CONSTANCE WELLER

(Sixth Respondent)

AND:

BRIXWOOD PTY LTD (ACN 011 050 276)

Fifth Appellant (Seventh Respondent)

AND:

ABNEY HOTELS PTY LTD (ACN 010 814 374),

JALSEA PTY LTD (ACN 101 638 105), J.E. & N.E. JAMIESON

Sixth Appellants(Eighth Respondents)

AND:

V.H. PARTNERSHIP PTY LTD (ACN 010 185 967)

Seventh Appellant (Ninth Respondent)

AND:

ABNEY LIMITED (ACN 010 891 148)

Eighth Appellant (Tenth Respondent)

AND:

LEND LEASE PROPERTY MANAGEMENT (QLD) PTY LTD

(ACN 000 554 209)

Ninth Appellant(Eleventh Respondent)

AND:

COMPADRES AUSTRALIA PTY LTD (ACN 003 463 447)

Tenth Appellant (Twelfth Respondent)

AND:

HILL-SMITH HOLDINGS PTY LTD (ACN 052 066 636)

(Thirteenth Respondent)

AND:

HABLO PTY LTD (ACN 010 069 600)

Eleventh Appellant(Fourth Respondent)

AND:

VENUES UMLIMITED (MARY STREET) PTY LTD

(ACN 010 674 718)

Twelfth Appellant (Fifteenth Respondent)

AND:

VENUES UNLIMITED (PADDINGTON) PTY LTD

(ACN 010 092 314)

Thirteenth Appellant(Sixteenth Respondent)

AND:

HANNASLEA NOMINEES PTY LTD (ACN 059 842 563)

First Respondent (Applicant)

AND:

THE LIQUOR APPEALS TRIBUNAL

Second Respondent (First Respondent)

AND:

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF

TOURISM, SPORT AND RACING

Third Respondent (Seventeenth Respondent)

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 03/11/1994

The circumstances giving rise to this appeal are set out in the reasons for judgment of Davies J.A. and Derrington J.

The appellants did not argue that the mere fact that an
"application, submission or objection" had been "made" by a
person aggrieved was a sufficient basis for an appeal.
Their argument assumed two premises; namely:

(i) section 30 of the Liquor Act 1992 confers a right of appeal to the Liquor Appeals Tribunal from a decision of the Chief Executive only upon an aggrieved person who had made an "application, submission or objection in the proceeding in which the decision was made" who was entitled under the Act to make that "application, submission or objection"; and

(ii) persons such as the appellants, who might conveniently be described as neighbouring licence-holders, are ordinarily not entitled under the Act to make "an application, submission or objection" in a "proceeding" in which the Chief Executive makes a "decision" to grant or refuse a general liquor licence.

However, it was submitted for the appellants that the Chief Executive is authorised to invite or receive submissions in such a proceeding from a person who is not otherwise entitled to make a submission and that, once the Chief Executive does so, the person invited is entitled to make a submission, and becomes entitled to appeal from the Chief Executive's decision by section 30 if he is aggrieved by the decision.

The foundation of the appellants' argument is that the Chief Executive is authorised to invite or receive submissions from persons who are not otherwise entitled to make a submission. The Act does not even expressly authorise the Chief Executive to make a decision to grant a general licence, but it is not in dispute that it implicitly does so, or that, like every statutory power, the power to make such a decision contains within it all incidental powers necessary for its effective exercise. It is said against the appellants that the Act not only does not provide them with a right to make submissions to the Chief Executive, but also impliedly excludes such a right. Assuming that to be so, it does not automatically follow that the Chief Executive may not, in the performance of his statutory function to decide whether to grant a general licence, invite or receive a submission where he considers that necessary (or perhaps desirable).

The status of persons invited or permitted to make submissions by the Chief Executive as neighbouring licence- holders is immaterial except insofar as it identifies them as persons with potentially relevant information. Subject to the possibility that he must first give the applicant for the licence an opportunity to dissuade him from such a course, in my opinion the Chief Executive has authority to invite or receive submissions. His power to decide seems to me to carry with it power to do what is necessary to be informed, even when those with information or otherwise potentially affected have no right to be heard.

But the next stage of the appellants' argument requires it to be accepted that a person invited to make a submission becomes entitled, in the sense of having a legally enforceable right, to do so under the Act, and a person whose submission is (physically) received, is entitled (in the same sense) to have it considered. I can find no basis for such a conclusion, and the appellants failed, in my opinion, to establish any basis in general principle or the language or purpose of the Act.

It follows that, in my opinion, the appeal should be dismissed, with costs to be taxed. It should be added that I have decided the matter by reference to the manner in which it was conducted, but I should not be taken as accepting that the Chief Executive's satisfaction that need had been established is a decision from which an appropriate person may appeal under section 30 of the Act.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

App. No. 163 of 1994

Brisbane

[Stonewood Pty Ltd & Ors v. Hannaslea Nominees Pty Ltd &

Ors]

BETWEEN:

STONEWOOD PTY LTD (A.C.N. 020 268 989)

First Appellant (Third Respondent)

AND:

WELLER HOTELS AND TAVERNS PTY LTD (A.C.N. 010 575 176)

Second Appellant (Third Respondent)

AND:

ROSIE'S TAVERN PTY LTD (A.C.N. 010 468 121)

Third Appellant (Fourth Respondent)

AND:

WELROWL PTY LTD (A.C.N. 009 977 146)

Fourth Appellant (Fifth Respondent)

AND:

ZENA CONSTANCE WELLER

(Sixth Respondent)

AND:

BRIXWOOD PTY LTD (A.C.N. 011 050 276)

Fifth Appellant (Seventh Respondent)

AND:

ABNEY HOTELS PTY LTD (A.C.N. 010 814 374),

JALSEA PTY LTD (A.C.N. 101 638 105), JE & NE JAMIESON

Sixth Appellant (Eighth Respondent)

AND:

V.H. PARTNERSHIP PTY LTD (A.C.N. 010 185 967)

Seventh Appellant (Ninth Respondent)

AND:

ABNEY LIMITED (A.C.N. 010 891 148)

Eighth Appellant (Tenth Respondent)

AND:

LEND LEASE PROPERTY MANAGEMENT (QLD) PTY LTD

(A.C.N. 000 554 209)

Ninth Appellant(Eleventh Respondent)

AND:

COMPADRES AUSTRALIA PTY LTD (A.C.N. 003 463 447)

Tenth Appellant (Twelfth Respondent)

AND:

HILL-SMITH HOLDINGS PTY LTD (A.C.N. 052 066 636)

(Thirteenth Respondent)

AND:

HABLO PTY LTD (A.C.N. 010 069 600)

Eleventh Appellant(Fourth Respondent)

AND:

VENUES UMLIMITED (MARY STREET) PTY LTD

(A.C.N. 010 674 718)

Twelfth Appellant (Fifteenth Respondent)

AND:

VENUES UNLIMITED (PADDINGTON) PTY LTD

(A.C.N. 010 092 314)

Thirteenth Appellant(Sixteenth Respondent)

AND:

HANNASLEA NOMINEES PTY LTD (A.C.N. 059 842 563)

First Respondent (Applicant)

AND:

THE LIQUOR APPEALS TRIBUNAL

Second Respondent (First Respondent)

AND:

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF

TOURISM, SPORT AND RACING

Third Respondent (Seventeenth Respondent)

Fitzgerald P.
Davies J.A.

Derrington J.

Judgment delivered 03/11/94

Joint reasons for judgment of Davies J.A. and Derrington J.; Fitzgerald P. separately. All concurring as to the orders to be made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	APPEAL AND NEW TRIAL - liquor - licensing - Chief Executive's delegate invited submissions from interested parties on issue of "public need" - appellants made submissions disputing public need for licence - no right conferred on persons other than applicant for licence to make submissions on issue - whether right of appeal lay against delegate's expression of satisfaction of public need - whether the appellants were persons who made an application, submission or objection in a proceeding in which a decision by Chief Executive was made - s. 30 Liquor Act 1991
Counsel:	Mr D. Gore QC and Mr A. Herbert for the
appellants
Mr I. Callinan QC and Mr R. Traves for the first respondent
Mr J. Cockburn for the second respondent Mr J. Rolls for the third respondent
Solicitors:	Ebsworth and Ebsworth for the appellants Phillips Fox for the first respondent Gilshenan and Luton for the second respondent The Crown Solicitor for the third respondent

Hearing date: 10 October 1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

App. No. 163 of 1994

Brisbane

[Stonewood Pty Ltd & Ors v. Hannaslea Nominees Pty Ltd &

Ors]

Before	Fitzgerald P. Davies J.A. Derrington J.
BETWEEN:

STONEWOOD PTY LTD (A.C.N. 020 268 989)

First Appellant (Third Respondent)

AND:

WELLER HOTELS AND TAVERNS PTY LTD (A.C.N. 010 575 176)

Second Appellant (Third Respondent)

AND:

ROSIE'S TAVERN PTY LTD (A.C.N. 010 468 121)

Third Appellant (Fourth Respondent)

AND:

WELROWL PTY LTD (A.C.N. 009 977 146)

Fourth Appellant (Fifth Respondent)

AND:

ZENA CONSTANCE WELLER

(Sixth Respondent)

AND:

BRIXWOOD PTY LTD (A.C.N. 011 050 276)

Fifth Appellant (Seventh Respondent)

AND:

ABNEY HOTELS PTY LTD (A.C.N. 010 814 374),

JALSEA PTY LTD (A.C.N. 101 638 105), JE & NE JAMIESON

Sixth Appellant (Eighth Respondent)

AND:

V.H. PARTNERSHIP PTY LTD (A.C.N. 010 185 967)

Seventh Appellant (Ninth Respondent)

AND:

ABNEY LIMITED (A.C.N. 010 891 148)

Eighth Appellant (Tenth Respondent)

AND:

LEND LEASE PROPERTY MANAGEMENT (QLD) PTY LTD

(A.C.N. 000 554 209)

Ninth Appellant(Eleventh Respondent)

AND:

COMPADRES AUSTRALIA PTY LTD (A.C.N. 003 463 447)

Tenth Appellant (Twelfth Respondent)

AND:

HILL-SMITH HOLDINGS PTY LTD (A.C.N. 052 066 636)

(Thirteenth Respondent)

AND:

HABLO PTY LTD (A.C.N. 010 069 600)

Eleventh Appellant (Fourth Respondent)

AND:

VENUES UMLIMITED (MARY STREET) PTY LTD

(A.C.N. 010 674 718)

Twelfth Appellant (Fifteenth Respondent)

AND:

VENUES UNLIMITED (PADDINGTON) PTY LTD

(A.C.N. 010 092 314)

Thirteenth Appellant(Sixteenth Respondent)

AND:

HANNASLEA NOMINEES PTY LTD (A.C.N. 059 842 563)

First Respondent (Applicant)

AND:

THE LIQUOR APPEALS TRIBUNAL

Second Respondent (First Respondent)

AND:

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

Third Respondent (Seventeenth Respondent)

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND DERRINGTON J.

Judgment delivered 03/11/94

This is an appeal from two declarations and two orders made in the trial division; a declaration that the appellants have no standing to appeal from a determination of the delegate of the Chief Executive of the Department of Tourism, Sport and Racing made on 21 December 1993, a declaration that the Liquor Appeals Tribunal has no jurisdiction to hear that appeal, an order that the tribunal be restrained from proceeding or proceeding further to hear that appeal and an order for costs.

The main question in issue below and before this Court is whether the expression by the Chief Executive, pursuant to s. 116 of the Liquor Act 1992, of his satisfaction that, if an application for a general liquor licence were granted to the first respondent, such licence would be necessary to provide for the reasonable requirements of the public, in the locality to which the application related, for liquor and related services that would be provided, is a decision against which the appellants may appeal to the Liquor Appeals Tribunal.

Section 116(1) requires an applicant for such a licence to satisfy the Chief Executive that, having regard to five specified matters, the licence is necessary to provide for the reasonable requirements of the public in the locality to which the application relates for liquor and related services that would be provided if the application were granted. The specified matters include the number and condition of licensed premises already existing in the locality, their distribution throughout the locality, the extent and quality of services provided by them and whether the services which would be provided if the application were granted could be adequately provided through existing licensed premises. Subsection (2) requires that, in considering the requirements of the public in the locality the Chief Executive must take into account the specified matters and must also have regard to matters such as population and population growth in the locality, the extent to which requirements or expectations may vary during different periods and are not met by existing licensed premises, and the likely health and social impact of the grant of the application. Subsection (4) provides that if the applicant fails to satisfy the Chief Executive of public need the application must be dismissed.

Section 117 provides that, with a view to assessing public need and before notice of the application is advertised, the Chief Executive must hold a preliminary conference with the applicant.

Sections 118 and 119 then provide that, upon the Chief Executive being so satisfied, the application must be advertised and objections may be made against it. The grounds of objection are limited, by s. 119(3), to offence, annoyance, disturbance or inconvenience to persons in the locality; or a lessening of the amenity, quiet or good order of the locality. Where an objection is filed the Chief Executive must participate in a conference with persons concerned; otherwise if he is required to make a determination on an issue other than public need he may do so: s. 121. In either case the conference is on issues other than public need.

Although, strangely, there is no express provision providing for it, the Chief Executive's power to grant a licence is at least implicit from provisions such as ss. 107, 116(4), 121(3) and 123. Section 30 of the Act confers a right of appeal against the Chief Executive's decision by a person who -

(a)  made an application, submission or objection in the proceeding in which the decision was made; and

(b) is aggrieved by the decision.

In the present case the first respondent applied initially for a cabaret licence which it later converted to an application for a general licence, for premises situated at Eagle Street Pier in the City. The initial application was made on 12 July 1993 and it was converted to an application for a general licence on 21 October 1993. Even before the application was converted into an application for a general licence a number of other licensees in the locality, and perhaps some outside the locality, lodged written submissions with the Chief Executive disputing the public need for the licence. The appellants are some of these.

The Chief Executive had not determined that question before the submissions were lodged and, it follows from the scheme of the Act, the application had not been advertised.

On 10 December 1993 the Executive Director (Liquor Licensing) of the Department, who appears at all times to have been acting as the delegate of the Chief Executive, wrote to the first respondent informing it of concerns expressed by licensees in the Brisbane CBD and advising it that it had been determined that a formal hearing would be conducted to consider the merits of the proposal in relation to public need. The letter advised that both the first respondent and a representative of the other interested parties would be allowed to present their cases at that hearing on 17 December. Each of the first respondent and the other interested parties, it was said, would be allowed a specified time within which to make submissions which must be directly related to the considerations under s. 116 of the Act. The hearing was duly conducted on the above date.

The Chief Executive did not consider this to be a conference pursuant to s. 117. That conference was conducted by telephone with the first respondent on 20 December. On 21 December the delegate of the Chief Executive, who had conducted the hearing and the conference, wrote to the first respondent and each of the "other interested parties" advising that, having considered the submissions of the applicant (the first respondent) and those parties, he considered that public need had been demonstrated. It is from the expression of opinion conveyed in that letter that the appellants sought to appeal to the Liquor Appeals Tribunal.

It was common ground between the parties that the question which is in issue between the parties may be resolved by determining whether or not the appellants were persons who made an application, submission or objection in a proceeding in which a decision by the Chief Executive was made within the meaning of s. 30(a). If that question was answered affirmatively it was conceded by the first respondent that the appellants were persons aggrieved by such decision.

It was conceded by Mr Gore QC, on behalf of the appellants, that, but for the invitation to them to make submissions and the submissions which they made, the appellants would have had no right to be heard by the Chief Executive before he expressed his satisfaction, or his failure to be satisfied, under s. 116 and consequently no right to appeal against the expression of the satisfaction. He submitted that there were three categories of submissions referred to in s. 30(a). The first were those submissions specifically referred to in the Act. The second, he submitted, included all other cases in which a right to be heard, otherwise than upon an application or an objection, was conferred by the Act. And the third, he said, was where the Chief Executive requested or invited the making of submissions. He conceded that the appellants here did not come within either the first or second category, but submitted that they came within the third. It may be accepted that, if there is such a third category, the appellants came within it. Thus the question in issue between the parties became whether there is, in the context of the Act, such a third category.

It may be assumed, for the purpose of considering this question, that the application by the first respondent initiated a proceeding and that the Chief Executive's assessment of public need was a decision in that proceeding.

But the appellants were unable to point to any provision in the Act which, expressly or by implication, conferred on the Chief Executive power, by inviting a submission from a person, to confer on that person a right to be heard so that that person's submission conferred on him or her a right of appeal pursuant to s. 30. Moreover the scheme of the Act is inconsistent with such a right being so conferred, particularly in respect of public need.

In the first place it confers rights to make applications (for example in ss. 106, 110, 111, 113 and 115) and objections (in s. 119); and it confers rights to make submissions, in some cases in express terms (s. 133(5) and possibly reg. 15 read together with ss. 189 and 190) and in some cases not (s. 136(4) and possibly s. 250(5) in the form in which it was prior to the Liquor Amendment Act (No. 2) 1993). It may be inferred from these provisions that s. 30(a) is speaking of a person who has made an application, submission or objection pursuant to a right to do so conferred by some other provision of the Act.

Secondly the scheme of Div. 1 of Pt. 5, in particular of ss.
116 to 122, is that:

1.    public need is determined before an application is advertised; and there is an obligation on the Chief Executive, before determining that question, to confer only with the applicant;

2.   after advertising other persons may object to the application but not on the ground of public need which has already been determined; and the Chief Executive may and, if objections are lodged, must confer with other persons concerned but not on the issue of public need.

It may be inferred from these provisions that the Act intended to exclude a right to be heard, by persons other than the applicant, on the question of public need.

It may be accepted that, there being nothing in ss. 116 or 117 to indicate how the Chief Executive might inform himself for the purpose of making the assessment which s. 116 requires, he may do so as he sees fit. Division 2 of Pt. 3 of the Act creates a board called the Liquor Advisory Board, the function of which is to assist the Chief Executive in relation, amongst other things, to applications made for licences by, amongst other things, giving the Chief Executive advice concerning any such application referred to it by the Chief Executive. But there is nothing in the Act to indicate that, in order to perform his functions under s. 116 the Chief Executive is confined, in seeking information or advice, to a reference to the Liquor Advisory Board.

To the extent that, in receiving the submissions which were lodged, the Chief Executive was informing himself for the purpose of determining whether he was satisfied of public need under s. 116, he was entitled to take them, or, more accurately, any relevant information which they contained, into account provided, of course, he satisfied himself of the correctness of that information. One obvious difficulty in receiving such submissions for that purpose is that the information contained in them may not be accurate because it does not come from an objective source. Another is the false perception which that process produces that, once received, they become "submissions" within the meaning of s. 30. In that section, as we have said, that term, like the terms "application" and "objection", means a submission made pursuant to a right to do so conferred by a provision of the Act.

It may be that, in the present case, the Chief Executive, in proposing and conducting the hearing of 17 December 1993, considered that he was doing so for the purpose of adequately informing himself in order to make the assessment required of him under s. 116. On the other hand it may be that he mistakenly thought that, having received submissions from opposing licensees, he had an obligation to conduct a hearing and to make a decision inter partes. Certainly the hearing took that form. If, as we think, there is no right in persons other than the applicant, either with or without an invitation from the Chief Executive, to be heard on the question of public need, and consequently no right of appeal by such person from the Chief Executive's assessment of that question, it is unfortunate that the Chief Executive may have encouraged in such persons a contrary belief by conducting such a hearing.

It follows from what has been said that, upon the proper construction of the Act, s. 30 presupposes that the person who made the application, submission or objection referred to in para. (a) did so pursuant to a provision of the Act conferring a right on that person to make that application, submission or objection; and that ss. 116 to 122, by implication, exclude a right, in any person other than the applicant, to be heard on the question of public need.

Consequently none of the appellants had any right of appeal
pursuant to s. 30.
It was not contended that, in that event, the declarations
and orders made by her Honour were wrongly made. It appears
from the correspondence that the Liquor Appeals Tribunal was
acting on the assumption that the appellants had rights to
appeal.

The declarations and orders made below were therefore correctly made and consequently the appeal must be dismissed with costs.