Hedderman v Murray

[2005] NSWSC 262

CITATION:	Hedderman v Murray & Anor [2005] NSWSC 262
HEARING DATE(S):	30/03/05
JUDGMENT DATE :	15 April 2005
JUDGMENT OF:	Whealy J at 1
DECISION:	I dismiss the summons. I order the plaintiff to pay the first defendant's costs. The Exhibits may be returned.

CATCHWORDS:	Power to amend plans and approve an alternative site: s 40(3) of Liquor Act 1982. - Nature of statutory appeal - the ambit of "question of Law"
LEGISLATION CITED:	Liquor Act 1982 Supreme Court Act 1970
CASES CITED:	Cowley & Ors v Smith & Anor; Poulos v Smith & Anor (unreported 23 December 2003 per Whealy J Kupke & Anor v Martin (1998) 13 NSWLR 449 Willoughby Municipal Council v Local Government Appeals Tribunal & Anor (1974) 2 NSWLR 415 at 42F Legge v Inner London Education Authority (1972) 1 WLR 1245 at 1256 Qantas Airways Limited v Arabco Limited (1996) 185 CLR 43 at 61 Transport Action Group Against Motorways v RTA (1999) 46 NSWLR 598 at 647 Minister for Immigration and Multicultural Affairs; Ex Parte Applicant s 20/2002 (2003) 77 ALJR 1165 at 52, 37, 173; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 38 Greyhound Racing Authority (NSW) v Bragg (2003] NSWCA 388 (22 December 2004) at 57-66 Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 (19 November 2004 at 92 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 (19 February 2005) at 129 Hill v Green (1999) 48 NSWLR 161 at 174-175 Australian Gaslight Co v Valuer General (1940) 40 SR (NSW) 126 Waterford v The Commonwealth (1987) 163 CLR 54 Azzopardi v Tasman UED Industries Limited (1985) 4 NSWLR 139 at 155-7 Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 5 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 AG (NSW) v X (2000) 49 NSWLR 653 Colonial Bank of Austtralasia v Willan (1874) 5 PC 417 at 443 Ex Parte Tees Limited re Butler (1934) 34 SR (NSW) 277 at 283 Ex Parte Mullen re Hood (1935) 35 SR (NSW) 289 at 298 Minahan v Baldock (1950) 84 CLR 1 at 11 Ex Parte Hulin; re Gillespie (1965) 65 SR (NSW) 31 at 33 Parissienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 Manning v Thompson (1976) 2 NSWLR 380; (1979) 1 NSWLR 384 Ex Parte Cuneo & Ors Re Latham (1956) SR (NSW) 197 Cuneo v Latham (1956) 30 ALJR 179 Cross v McHugh (1974) 1 NSWLR 500 at 503 Bradley v Fitzmaurice (1974) 2 NSWLR 286 per Jeffrey J Bean v Dukic (unreported NSWCA per Gleeson CJ, Beazley, Stein JJA 5 December 1997) Raffaele v Sidaway (unreported NSWSC Sully J 16 May 1997) Murphy v Brittain (unreported NSWSC Barr J 8 November 1996) Gorczynski v Perera & Anor (2003) NSWCA 70 per Santow JA with whom Meagher and Ipp JJA agreed
PARTIES:	Jeremiah Rodger HEDDERMAN v Sheryl Bronwyn MURRAY & Anor
FILE NUMBER(S):	SC 10681/05
COUNSEL:	Mr B.J. Preston SC; Mr J.B. Costigan - Pltff Mr S.B. Austin QC; Mr S.W. Balafoutis - Deft
SOLICITORS:	JDK Legal - Pltff Back Schwartz Vaughan - Deft

LOWER COURT JURISDICTION:	Licensing Court of NSW
LOWER COURT JUDICIAL OFFICER :	Full Bench

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

FRIDAY 15 April 2005

10681/05 - Jeremiah Rodger HEDDERMAN v Sheryl
Bronwyn MURRAY & ANOR

JUDGMENT

1 HIS HONOUR: In a decision I gave on 23 December 2003 in proceedings quite unrelated to the present matter, I said something of the history of what was then a recent innovation in the Liquor Licensing industry in New South Wales. This was the introduction into this State of a liquor retail operation trading under the name “Dan Murphy”. I also spoke of the apparent consternation of existing liquor licence holders and the apparent opposition generated by the introduction in this State of the Dan Murphy banner (Cowley & Ors v Smith & Anor; Poulos v Smith & Anor (unreported) 23 December 2003). The present proceedings indicate that the consternation to which I made reference in the earlier decision and the opposition to Dan Murphy described therein has not, in the intervening period, appreciably abated.

2 Between 2002 and March 2004 there erupted a bout of hard fought litigation in the Licensing Court relating to the Shellharbour Super Centre. This is a large retail centre in the city of Shellharbour. The Super Centre is located on the southern side of Lake Entrance Road at Blackbutt. At the time, the principal tenants of this venture were a Woolworths Supermarket, Bunnings Hardware House, Repco Discount Auto Parts, Bob Jane T-Mart, Burger King, Red Rooster and a number of other smaller tenancies.

3 On 12 August 2002 an application was made on behalf of Woolworths to move an existing licence at Croydon Park to proposed premises within the Woolworths Supermarket at Shellharbour where, if granted, it would trade as Woolworths Liquor. A competing application by one Antonia Pignataro was made for the conditional removal of an off-licence from Shellharbour to Shellharbour City Centre. The site of Ms Pignataro’s proposal was well removed from the Super Centre. It was ultimately granted on a somewhat restricted basis by the Full Bench of the Licensing Court on 8 March 2004. For practical purposes, it plays no further part in the present proceedings before this Court.

4 As I have said, the Woolworths application was made for its Supermarket in the Super Centre. The competing applications were heard by the Full Bench of the Licensing Court at Port Kembla on 9 to 11 December 2003. Addresses were taken in Sydney on 19 December 2003 when the Licensing Court reserved its decision. Both applications were conditionally granted on 8 March 2004.

5 Some weeks before the commencement of the hearing of these competing applications, a nominee on behalf of Woolworths sought to join an additional application for hearing at the proposed Port Kembla sittings. This was an application for the conditional grant of a removal of the Croydon Park licence to Shop 8 at Shellharbour Super Centre, those premises being identified as a Dan Murphy operation. At that time, the Licensing Court refused to allow the late application to be joined to those which had been earlier set down for hearing at Port Kembla Licensing Court. No doubt this was on the basis that the very lateness of the application might occasion prejudice to potential objectors to the application who would have little time to prepare their case in those circumstances.

6 Jeremiah Hedderman, the plaintiff in the present matter, was an objector to the competing applications that were subsequently granted by the Licensing Court on 8 March 2004. His objection was made in his capacity as licencee of the Lake View Hotel. This hotel, which had a large retail bottle shop as part of its facilities, was situated at Oak Flats about 600 metres away from the Super Centre. There were other objectors as well and the competing applicants each objected to the other.

7 Although the Dan Murphy proposal did not proceed at the sitting of the Port Kembla Licensing Court in December 2003, it is necessary to say something about the Dan Murphy operation. Stores under this banner had operated for sometime in Victoria. The operation was acquired some years ago by Woolworths Limited. So far as the Dan Murphy operation in New South Wales is concerned it is not in dispute that there are a number of these stores operating at the present time in this State. Generally, they involve the provision of very large facilities usually with a large parking area nearby. The carry a significant amount of stock and promote the wide range of liquor they carry with aggressive marketing policies. The reason that the introduction of the Dan Murphy chain in New South Wales was met with a degree of consternation and opposition was the concern held by existing licence holders that large scale operations of this kind conducted by Woolworths, with its attendant aggressive pricing, would be likely to impact adversely on the commercial interests of existing retail operators. It is fair to say that the liquor retailing industry has changed dramatically over the last few years and one of the aspects of that change, for better or worse, has been the extensive increase in liquor retailing by both Woolworths and Coles. There can be little doubt that the general public perception of these changes is that they have been for the better. Whether this perception is justified or not is irrelevant to this decision.

8 Following upon the March 2004 decisions by the Licensing Court of New South Wales, Woolworths was left in this position: It had secured the conditional grant of an order for removal of the Croydon Park licence to its Supermarket in the Shellharbour Super Centre. None the less, it had always been its intention and its desire, at least by October-November 2003, to operate a licence at the Super Centre in the Dan Murphy site rather than in the supermarket. No doubt, there was a need for the company to obtain suitable premises, to obtain development consent and the like. These were the matters, I infer, that resulted in there being a time lag between the lodgement of the original removal application and the unsuccessful attempt to bring the Dan Murphy proposal into the December 2003 sittings at Port Kembla.

9 From Woolworth’s perspective, there was clearly a need to resolve the impasse created by this unsatisfactory position. It sought to do so by availing itself of the provisions of ss 40(1) and (3) of the Liquor Act 1982. These sub-sections of s 40 are relevantly in the following terms: -

“40 Application for conditional grant

(1) An application:-

(a) for a licence,

(b) for removal of a licence,

(c), (d) (Repealed)
(e) under section 49 to modify or dispense with a requirement or condition for the provision of residential or other accommodation, 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.

(3) Upon the prescribed notice being given to any objectors to an application that has been conditionally granted, and upon such terms as the court thinks fit, the court may hear and determine an application:-

(a) to amend a conditional grant, or
(b) where the conditionally granted application relates to premises proposed to be erected—to approve an alternative site for the premises, being a site in the immediate vicinity of the site first approved.

10 The application made by Woolworths to bring about a situation where it could operate from the Dan Murphy site was an application which, in these proceedings, has been described as “an alternative site” application. The application was not opposed by the Director of Liquor and Gaming, the Licensing Police, Shellharbour Council or any other public authority. It was however, opposed by some of the objectors to the original application including the present plaintiff and the objector on behalf of Ms Pignataro.

11 A Full Bench of the Licensing Court, comprising the Magistrates who had dealt with the original competing applications, heard the new applications on 25 November and 7 December 2004. By then the objectors had been diluted to Mr Hedderman and the objection on behalf of Ms Pignataro. The sequence of events leading to this hearing appeared to be these:

1. The Woolworths nominee Sheryl Murray (the first Defendant) made an application for an alternative site on 13 April 2004.

2. The application came on for first hearing on 14 September 2004 when Mr Hedderman alone opposed the application. He was represented by Mr Costigan of counsel.

3. On 15 September 2004 the Court itself raised with Senior Counsel for Woolworths whether there was a need to make a subsidiary application for approval of substituted plans.

4. An application to amend was then made but the original application was adjourned to enable notice of the fresh application to be given to the original objectors as required by s 40(3)

5. On 20 September 2004 Mr Ian Lawry counsel for Ms Pignataro appeared to object to the application for the alternate site and the freshly lodged application to amend the plans.

6. These two applications were heard, as I have said, on the 25 November and 7 December 2004.

12 On the 31 January 2005 the Full Bench of the Licensing Court unanimously ordered that each application be granted.

13 Mr Hedderman appealed to this Court by way of summons filed on 25 February 2005. Neither Ms Pignataro nor her principal has joined in the appeal. The plaintiff sought the following orders: -

“1. That the appeal be allowed.
2. The decision of the second defendant dated 31 January 2005 be set aside.
3. The matter be remitted to the second defendant for determination in accordance with the decision of this Court.
4. Further or other orders.
5. Costs”.

14 The summons, as filed, contained six grounds of appeal. For present purposes, they may be distilled into allegations, in one form or another, that the Full Bench of the Licensing Court erred in law in relation to its construction and application of ss 40(3)(a) and (b) of the Liquor Act 1982.

15 For completeness, I should add that the first defendant brought an application for expedition before the Duty Judge in mid-March 2005. This was heard by Justice Greg James who, as I understand it, acceded to the first defendant’s application, and directed that the matter be heard by a Judge of this Court expeditiously. His Honour also directed the parties to file written submissions in support of their respective contentions. Under the provisions of the Liquor Act, Woolworths are prevented from trading at the premises approved by the Licensing Court while ever there are proceedings on foot by which the Registrar of the Court might be precluded from making a final grant, that is, an order permitting immediate trade. The existence of the present appeal, as a consequence, effectively prevents the Licensing Court’s orders from taking practical effect

The Licensing Court’s decision

Before proceeding to examine the contentions relied upon by the plaintiff in the present appeal, it is necessary to say something about the decision of the Licensing Court given on 31 January 2005. First, a number of the matters raised by way of objection in the Licensing Court hearing have not been repeated in this appeal. Secondly, the Licensing Court made a very detailed examination of the original proposal at the Supermarket and that proposed at the Dan Murphy outlet. This involved a consideration of the physical and operational comparative analysis that had been carried out by Stephen Connolly, a town planner called on behalf of Mr Hedderman. Mr Connolly apparently concluded that the Dan Murphy proposal was a fundamentally different application to that approved for the Supermarket. This was an opinion expressed “in a physical and operational sense”. As to this the Licensing Court said: -

“The applicant on the other hand while acknowledging the far greater size of the Dan Murphy proposal and that it constitutes a unique concept in liquor retailing submits that each of the premises have essentially the same characteristics, that is retail space devoted to the display and sale of beer, wine spirits and other associated products. To that end, each premises would provide for the display of liquor on racks, pallets and in cool rooms and refrigeration cabinets. Check out and cash registers are to be provided in each proposal.
The main difference between the two proposals is their respective size and the amount of liquor that they may consequently display but beyond that they each propose the same features. The nature and character of each proposal is essentially the same, that is a retail outlet for the sale of liquor, albeit on differing scales. The fact that one was proposed as an adjunct to the Supermarket and the other as a freestanding store does not change the situation. It is the opinion of the applicant’s witnesses that the Dan Murphy site, being in the immediate vicinity of the existing site will be equally as convenient to those persons which the Supermarket site was intended to serve. Consequently we find no impediment to granting the application to substitute the plans based upon this ground of objection.”

16 Thirdly, the Licensing Court considered a contention by the objectors that the applicant had failed to establish that the conditionally granted application related to premises “proposed to be erected” (this was a clear reference to the requirements of s 40(3)(a) and (b) of the Liquor Act 1982). The Licensing Court acknowledged that there was a paucity of evidence available to it on this point. It appears that Mr Austin of Queen’s Counsel who appeared for Woolworths made an application before the Court to re-open his case to call evidence from a Woolworths executive as to the work which would have been necessary to bring into being a liquor shop at the Supermarket site. This occurred only when it had become apparent that this precise jurisdictional point was to be relied on by the objectors. Somewhat surprisingly, the Court refused the application for leave to bring this evidence before the Court although the reason for this aspect of the decision is not entirely clear.

17 Notwithstanding that the Licensing Court refused Woolworths leave to re-open its case to call evidence on this point, the Court did have before it a copy of all the various reports and affidavits which had been admitted in the original application. There was, for example, a copy of the proposed floor plan of the Supermarket. As to this the Licensing Court said: -

“Mr Austin QC however submits that the following factors are evident from the plan:
(i) The northern and western walls being the perimeter walls of the supermarket are constructed
(ii) The south, south eastern and eastern walls (including the roller shutter on the eastern wall) are to be erected
(iii) The internal shelving cool room and cash wrap unit are to be installed
We also note the general description of the proposed premises by Mr Chambers at paragraph 2.3.2 of his April 2003 report and in particular his statement that the area of the supermarket proposed for the liquor store is presently used for the display of stationery and garden items.
We accept Mr Austin’s submission that it is possible to discern from the plan the extent of the proposed building works, although not the existence or otherwise of the timber floor referred to by Mr A. C. L. Smith in his affidavit of 9 August 2002 at paragraph 15(b). We accept the extent of the building works as outlined by Mr Austin.
On the basis of the decision in Kupke & Anor v Martin (1988) 13 NSWLR 449, and a comparison of the extent of the works to be undertaken in that case which were determined as constituting premises proposed to be erected, we are satisfied that the conditionally granted application relates to premises proposed to be erected”.

The plaintiff’s contentions

18 The arguments advanced by the plaintiff in this appeal may be distilled into the following propositions. First, in reliance upon a number of decisions, arising generally from contexts other than the Liquor Act, the plaintiff argues that the amendment of the conditional grant by the substitution of the new plans for the Dan Murphy store converts the original concept into something substantially different so as to amount to a “radical transformation” from that which was originally granted. (Willoughby Municipal Council v Local Government Appeals Tribunal & Anor (1974) 2 NSWLR 415 at 42F; Legge v Inner London Education Authority (1972) 1 WLR 1245 at 1256; Qantas Airways Limited v Arabco Limited (1996) 185 CLR 43 at 61; Transport Action Group Against Motorways v R T A (1999) 46 NSWLR 598 at 647.

19 It is fair to say that this submission has been put in a number of slightly different ways depending upon the context in which the relevant litigation arose. It is also fair to say that the plaintiff has sought to place reliance on a number of authorities many of which have a flavour derived from litigation arising in the Land & Environment Court.

20 The essence and thrust of the plaintiff’s submission is however put in an alternative manner. The plaintiff argues that, on the reasoning adopted by the Licensing Court, no matter how radical the transformation of the premises in terms of scale extent features or impact, the substituted proposal would always remain an amendment of the proposal the subject of the conditional grant. The plaintiff argues this is self evidentially incorrect. Further, the plaintiff argues that the Licensing Court’s decision is “manifestly unreasonable” in the Wednesbury sense. It is as well illogical, irrational and lacks any basis in findings or inferences of facts supported on logical grounds. (Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 52, 37, 173; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 38; Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 (22 December 2004) at 57-66; Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 (19 November 2004) at 92 and Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 (9 February 2005) at 129. See also Hill v Green (1999) 48 NSWLR 161 at 174-175).

21 The second major argument relates specifically to s 40(3)(b) of the Liquor Act 1982. In this regard, the plaintiff argues that this Court should substitute its own views in place of the views expressed by the Licensing Court in relation to the issue posed by s 40(3)(b). The plaintiff argues that an examination of the factual situation will satisfy this Court that the liquor store proposed for the Woolworths Supermarket at the Super Centre could not fall within the description “premises proposed to be erected”. It is submitted that the Licensing Court was wrong making that factual finding and, in those circumstances, the Licensing Court was bound to decline to determine the application by reason of a lack of jurisdiction.

22 Again, there is an alternative argument that the Licensing Court’s finding in this second regard were manifestly unreasonable in the Wednesbury sense; or were illogical irrational and lacking any basis in findings or inferences of fact supported on logical grounds.

Preliminary matters – nature of the appeal

23 There were two preliminary matters debated during argument. They are closely related. The first related to the nature of the appeal itself. I raised with senior counsel whether this was an appeal under s 146 of the Liquor Act or whether it was a review of the Licensing Court’s decision in the nature of prerogative relief. Mr Preston SC assured me that the appeal was intended to be and was in truth a statutory appeal under the provisions of the Liquor Act.

24 An appeal of this nature has traditionally been confined to questions of law. The basic question as to whether a matter is of fact or law has been traditionally accepted in accordance with the judgment of Jordan CJ in Australian Gaslight Co v Valuer General (1940) 40 SR (NSW) 126. There is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54. It appears to be still the position in New South Wales that perverse or unreasonable findings of fact do not constitute error of law; Azzopardi v Tasman UED Industries Limited (1985) 4 NSWLR 139 at 155-7; Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 5; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ where the Australian and English cases concerning error of law are examined. More recently Spigelman CJ has discussed at length the ambit of the expression “error of law” albeit in the context of s 101A of the Supreme Court Act 1970 (AG (NSW) v X (2000) 49 NSWLR 653).

25 A practical consequence of the fact that this is an appeal under s 146 of the Liquor Act is that it places a question mark over one aspect of the second major argument advanced on behalf the plaintiff. In this regard, the plaintiff seeks to argue that before the Licensing Court has jurisdiction to approve an alternative site, it has to be satisfied as to the existence of an essential preliminary (Colonial Bank of Australasia v Willan 1874 5 PC 417 at 443; Ex Parte Tees Limited re Butler (1934) 34 SR(NSW) 277 at 283 and Minahan v Baldock (1950) 84 CLR 1 at 11). The Licensing Court cannot give itself jurisdiction by a wrong finding on a jurisdictional fact Ex Parte Mullen re Hood (1935) 35 SR(NSW) 289 at 298; Minahan v Baldock (supra); Ex Parte Hulin; re Gillespie (1965) 65 SR(NSW) 31 at 33. See however, Parissienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 and also Manning v Thompson (1976) 2 NSWLR 380; (1979) 1 NSWLR 384. These latter decisions qualify the first proposition in certain situations.

26 A preliminary consideration therefore arises (or may arise) in relation to the second major ground of appeal. Is it possible to raise the existence or non-existence of a jurisdictional fact in an appeal under s 146? This raises a second consideration. Does the court of review determine for itself the existence or non-existence of jurisdictional facts by the assessment of evidence placed before it?

27 As to the first consideration, Mr Austin QC who appeared for the first defendant, obtained explicit instructions in relation to the matter. Mr Austin informed me that his client did not wish to argue in this appeal that there is any limitation placed upon the Court in determining whether the Licensing Court may have been in error in relation to its finding that the premises the subject of the original conditional grant were premises “proposed to be erected” within the meaning of s 40(3)(b) of the Liquor Act 1982.

28 As a consequence of this agreement between senior counsel for the plaintiff and the first defendant, it is therefore not necessary for me to address the difficult point I raised with counsel at the outset. Although I have not heard submissions on it and accordingly express no view preliminary or otherwise about it, I am prepared to proceed on the basis that I may, for the purpose of this appeal, assess whether, on the material before the Licensing Court, it was open to that Court to make the finding it did. Should I be satisfied that it was not open to the Licensing Court to find as it did, the parties agree that I may find error of law for the purposes of this appeal.

29 The second consideration I mentioned remains, however, unresolved between the parties. Somewhat paradoxically, in light of the agreement between the parties, Mr Austin QC wishes to place before this Court an affidavit sworn by Mr Anthony Charles Leybourne Smith on 5 March 2005. This was admitted by me in the proceedings on a provisional basis only. In short, the affidavit addresses in some detail whether the original premises the subject of the conditional grant were premises “proposed to be erected”. It examines the plan and the premises themselves in the context of the existing supermarket. It purports to describe which part of the originally proposed licensed premises are erected and which are not. It examines that situation in various time frames between 2002 and March 2005.

30 The problem that immediately arises for the first defendant is this: If this be a statutory appeal, albeit one in which I am invited by the parties to scrutinise as a potential error of law whether it was open to the Licensing Court to make the finding that the premises were “proposed to be erected”, the tender of Mr Smith’s affidavit invites me to make that finding for myself.

31 The plaintiff’s response to this potential difficulty has been rather awkward as well. Mr Preston SC invites me to reject the affidavit of Mr Smith as evidence in this appeal but on a discretionary basis. He has argued that this affidavit is identical to an affidavit which the first defendant sought to tender before the Licensing Court during the hearing in November and December 2004. This was the material I referred to earlier in respect of which the Licensing Court refused leave to reopen. I have assumed leave was refused because the first defendant had earlier closed its case before the Licensing Court, although whether this was the only basis of the decision is not absolutely clear. In short, Mr Preston has argued that if the first defendant was unable to obtain the necessary indulgence from the Licensing Court in relation to this evidentiary material, he should not get it in this Court.

32 As I have mentioned above, there are, in my view, potentially more serious problems than those involved in a simple exercise of discretion so far as this affidavit material is concerned. The document is not being tendered by consent in this appeal. Indeed, Mr Preston opposes its tender. What right does an appellate court have when dealing with an appeal on a question of law under s 146 of the Liquor Act to receive contested evidence and make factual findings itself?

33 Both parties, however, urged me to leave a decision in relation to the final reception of the affidavit, which was provisionally admitted as Exhibit 1, until my final decision. I must say, with candour, that I have not been entirely happy to be left in that position. In view of the agreement of counsel and the manner in which the argument has proceeded before me, however I have decided to consider the two major errors of law argued by the plaintiff without regard, in the first instance, to the issue of Mr Smith’s affidavit. I will return to it, if necessary, in due course.

The amendment of the conditional grant

34 Mr Preston SC has argued, as I earlier outlined, that the amended plan showing the Dan Murphy layout is so different to the original proposal in nature and character as to render it something fundamentally different from the original proposal. In short, he argued that this was not an amendment of the application but an abandonment of the original proposal and the substitution of a totally new proposal.

35 Mr Preston argued that the Licensing Court did not really appreciate, in attending to their task here, that the focus of the amendment had to be on the original premises proposed to be licensed. As a consequence, he argued that the Licensing Court did not pay sufficient attention to the nature and character of the premises in the original application. Rather they allowed themselves to consider the alternative site application as colouring the outcome of the amendment application.

36 It is a matter of interest that nearly 50 years ago similar arguments to those raised in those proceedings arose for decision in the case of Ex Parte Cuneo & Ors Re Latham (1956) SR(NSW) 197.

37 In that case the Licensing Court had to consider an application for leave to amend plans relating to a community hotel in the Randwick district. There had been an original grant some years earlier. The plans related to that grant reflected a hotel which had 68 bedrooms, general bar facilities, lounges, a beer garden and a dining room. The amending plans related to a hotel containing only 17 bedrooms. The scale of the amendment was very substantially larger with increased bar areas, having regarding to the fact that 10 o’clock closing had been introduced in the interim.

38 The relevant section of the Liquor Act 1912 at that time was in the following terms: -

“Upon notice being given to any objectors to the conditional application and upon such terms as the Court may deem fit, the Court may hear and determine an application to amend the plans so issued or to approve an alternative site within the immediate vicinity of the site approved on the conditional application.”

39 One of the principal arguments presented before the Banco Court in Cuneo’s case was, as Roper CJ in Eq described it: -

“Passing from that, the real objection under this head was that the new plans, submitted as they were, presented a building or buildings so totally different from those presented by the earlier plans that any identity between the two was completely lost and any similarity between them was completely lost and that where that was the fact the new plans could not be considered as amending plans at all but simply as plans fit to be presented with a completely new application. The argument depends largely or wholly upon what is meant by the word “amend” in the portion of the section which I have quoted.”

40 The interests supporting the decision of the Licensing Court to allow the amendment in that case argued that an amendment, and no more, is effected within the meaning of the expression if the new plan and the old plan both present the same essential subject matter, even though it is presented in the two of them in a completely different way. This was so even if there were a complete dissimilarity to the eye and complete difference of layout. So long as the subject matter of the two plans remained the same; it was argued, then the application might properly be considered as an application to amend the plans.

41 It will be seen that the arguments in the present matter, in a number of respects, are very similar to those which were considered by the Court in Cuneo’s case.

42 At page 200, Roper CJ in Eq (with whom Ferguson J and Manning AJ concurred) said: -

“I do not think it is necessary in the circumstances of this case to attempt, if it would be useful anyhow, to consider precisely what is amendment or precisely what would be an application to amend by seeking to set out the limits of what is and what is not within the terms of the section. However, the word “amend” may be defined or expanded or circumscribed. I think it must always come back to a question of fact as to whether in a particular case the application is in reality an application to amend the plans which have already been approved.”

43 Roper CJ in Eq noted that the Licensing Court had held: -

“We have already held that we consider we have power to approve an amended plan, even though it is totally dissimilar in appearance and layout”.

44 His Honour said that he favoured the approach that had been adopted by the Licensing Court and the test which was indicated by the language the members of the court had used. He said: -

“It appears from that the Court looked to the nature or the character of the premises to which the plans had been drawn and if that remained the same then they considered that the second set of plans could properly be treated as an amendment of the first. I think in the circumstances of this case it was a proper approach and they then proceeded to consider that that meant the amending plans were in fact truly an amendment, that the application was one to amend the plans …
The appearance and layout were not regarded as a matter going to the essence of whether the plans were an amendment or not as long as what they had previously described as a nature and character of the premises remained the same. In my opinion that approach to the matter was right and their decision on the facts in this case, that the plans submitted were amending plans and so the application was competent under the section, was also correct.”

45 The High Court (Dixon CJ, McTeirnan, Williams, Fullaghar and Taylor JJ) considered the Supreme Court judgment and held that “we think the power of amendment which has been discussed is wide, and although it may not be unlimited, we think that there is no error of law in the manner in which Roper CJ in Eq dealt with the power” (Cuneo v Latham (1956) 30 ALJR 179).

46 In my opinion, this ground of appeal must fail. My reasons are these: -

First, the language of s 40(3) is wide and not restricted in scope. This is not to say, as was observed in Cuneo’s case, that the power is unlimited. Clearly a wide power of amendment is conferred upon the Licensing Court. Cuneo’s case itself bears this out. In that case the Licensing Court were found not to have fallen into error in a case in which there were very substantial changes in the amending plans, The High Court’s remarks provide further support for the conclusion. Secondly, the decision read fairly, as I believe the Licensing Court’s decision must be ( Cross v McHugh (1974) 1 NSWLR 500 at 503), recognises the substantial difference between the two plans but acknowledges, after a careful consideration of all the relevant features, that, apart from size and the amount of liquor that will be carried, each proposal retains the same features. Moreover, the Licensing Court specifically took into account that the original proposal was as an adjunct to the supermarket whereas the new proposal is a free standing store. The Licensing Court made specific mention of the fact that the very proximity of the two sites would make it equally convenient for supermarket shoppers to use the new site and the premises if the amendment were permitted. Thirdly, this seems to me to be an appropriate matter for the Licensing Court to have taken into account. After all, the Court was hearing both applications (that is an application to amend and one for an alternative site) together. An appreciation of the situation of the new site was not inappropriate when considering and contrasting the original plans and the amending plans. I do not agree that the Licensing Court is limited in the manner argued by Mr Preston, at least not when it is considering together applications under sub-sections 3(a) and (b) of s 40.

47 Fourthly, the Licensing Court is a court that is particularly concerned with all aspects of the public interest. Read fairly, the decision of the Licensing Court is plainly reflecting aspects of the public interest in relation to the conclusion it drew from its comparison of the two plans. No doubt from the point of view of the plaintiff, the new plans represented a threat to his economic well-being and to the interests he served in relation to the Lake View Hotel. His concern in that regard is perfectly understandable. Equally, it might be said that the interests of the first defendant were concerned with advancing the economic position of Woolworths. But the Licensing Court, while it would no doubt be aware of these individual economic interests, was concerned overall with the public interest generally and in particular the interests of the public in the Shellharbour area.

48 In Bradley v Fitzmaurice (1974) 2 NSWLR 286 Jeffrey J said: -

“The Licensing Court functions, not as a court adjudicating in adverse litigation as to the pre-existing rights of the parties before it, but an investigatory body evaluating the public interest and public needs in each case, a task which necessarily involves the making of many discretionary judgments as distinct from the ascertainment of simple objective facts and which is one for which the members of the Licensing Court by training and experience are taken to be particularly equipped”.

49 I would respectfully endorse this statement as being as relevant and appropriate today as it was thirty years ago. Fifthly, I am unable to accept Mr Preston’s argument that the two sets of plans represent, as he colourfully described it, “chalk and cheese”. There is no doubt that the two sets of premises are very different particularly and essentially in relation to scale and size. But it is equally true, as the Licensing Magistrates observed, that the nature and character of each proposal is essentially the same: that is a retail outlet for the sale of liquor, each offering the same general type of facilities although as the Licensing Court observed, on a different scale. No amount of rhetoric or colourful language can obscure or hide this self-evident fact. It is also true that the original plan was an adjunct to a supermarket whereas the new proposal is for a freestanding store. Yet it is, as the Licensing Court found, in the immediate vicinity of the supermarket site.

50 Sixthly, I consider that this Court should be very cautious about interfering with decisions of this kind by the Licensing Court. Of course, if a Court such as the Licensing Court clearly falls into error, it is the duty of the Supreme Court to recognise the error and state it. But this Court, in my view, should be very careful and cautious before substituting its own value judgment for that of the experienced members of the Licensing Court, Those magistrates are, by training and experience, more suited than is this Court to making decisions such as the one made in the present matter. This Court has recognised that the Licensing Court is a specialist court with a developed expertise in a very specialised area (Bean v Dukic unreported NSWCA per Gleeson CJ, Beazley, Stein JJA 5 December 1997; Raffaele v Sidaway unreported NSWSC Sully J 16 May 1997; Murphy v Brittain (unreported NSWSC Barr J 8 November 1996).

51 Finally, I consider that some care needs to be taken in relation to the use made of decisions emanating from other jurisdictions where considerations of amendment or modification had been undertaken. I do not suggest that such decisions are of no help. But their guidance must be limited having regard to the different considerations that arise under the Liquor Act.

52 In my view, for the reasons I have stated, it was as a matter of law open to the Licensing Court to come to the conclusion it did regarding the amendment of the plans. I do not discern any error of law in the approach of the Magistrates and, although my views on the matter are not relevant or determinative, I would have reached the same conclusion as they did. The decision cannot, in any sense, be branded as unreasonable, illogical or lacking a sound basis,

Where the premises “proposed to be erected”?

53 I turn now to consider the second major point argued on behalf of the plaintiff. The argument was concisely expressed: First, the onus lies upon the first defendant to establish before the Licensing Court that the premises were premises proposed to be erected (Gorczynski v Perera & Anor (2003) NSWCA 70 per Santow JA with whom Meagher and IPP JJA agreed). Secondly, the paucity of evidence before the Licensing Court left it, according to the submission, in a situation where it could not be satisfied that the premises answered the statutory description. Thirdly, the plans, when read in the light of the statement by Mr Chambers the Town Planner and Mr A. C. L. Smith in his affidavit in support of the application, did not enable the Licensing Court to conclude that the premises were premises proposed to be erected.

54 There is one reported decision of this Court relating to the construction of s 40(3)(b) of the Liquor Act. This is the decision of Roden J in Kupke v Martin (1998) 13 NSWLR 449. The parties to the present litigation respectively suggest that this decision was correctly decided. I agree. No issue relating to the proper construction of s 40(3)(b) arises in these proceedings. The plaintiff, however, suggests that there is a marked difference between Kupke’s case and the present. This arises because, in that case, there was an agreed set of facts before the Licensing Court and the Supreme Court. I note that there is a second difference, namely that in Kupke’s case the relief sought was in the nature of prerogative relief. The proceedings there were not an appeal under s 146 of the Liquor Act.

55 The test applied by Roden J however was this: He said that, in order to determine whether the subject premises are “proposed to be erected”, he needed to decide whether “the premises can be said already to exist as a separate entity, or whether they have not yet been brought into existence”. Roden J concluded, in a situation somewhat similar to the present, that while the supermarket had been erected at the time, the conditional grant referred not to the supermarket but to the proposed licensed area to be formed within the supermarket. His Honour said: -

“What is necessary to qualify a site for category 1 is not merely that it does not yet exist as premises in its own right, but also that what is proposed for it is that it be erected in order to become the premises in respect of which a final grant under s 60 might be made”.

56 I have earlier set out the brief reasons stated by the Licensing Court in finding for the first defendant on this issue. It maybe helpful, however if I review the evidence that was before the Licensing Court.

57 First, it was not suggested that there was any impediment or barrier to the Licensing Court having regard to the file it had before it in relation to the conditional order for removal which had been granted on 8 March 2004. This included a report from Mr Robert Chambers, a Town Planner, and the plan of the supermarket including a detail plan of the area in the supermarket proposed to be licensed. There was also a early affidavit from Mr A. C. L. Smith sworn 9 August 2002. Indeed, this material was tendered on behalf of the objectors.

58 The plan of the proposed premises was, in small scale, included in Mr Chambers’ April 2003 Town Planning report.

59 Mr Smith’s affidavit made it clear that the Croydon Park licence was sought to be removed to the supermarket at Shellharbour as “proposed licensed premises”. It is clear from the description of the supermarket premises that the proposed licensed premises were not then in existence but, when incorporated into the supermarket, would supplement the facilities provided by the supermarket (see paras 6, 8, 9 and 13 of Mr Smith’s affidavit).

60 Paragraph 15 of Mr Smith’s affidavit deals with an aspect of the proposal which calls for comment. I shall not set out the whole of the paragraph but it opens in the following terms: -

“15. The proposed licensed premises will be termed a ‘de-walled’ store as there will be no physical separation for part of the boundary between the proposed licensed premises and the supermarket”.

61 Mr Smith’s affidavit then lists a series of proposals that presumably were required by the Liquor Administration Board for the physical definition of an off-licence retail in supermarket premises where there is an aspect of “de-walling”. I take this to mean in general terms, that where a liquor facility is proposed in a supermarket but is not completely sealed off from the supermarket, the Liquor Administration Board has certain requirements to be fulfilled before it will grant approval to a co-existence of the proposed liquor facility with the supermarket facility. No doubt, this is designed to ensure effective control over the licensed area and, for example, to minimise the risk of minors obtaining inappropriate access to alcohol. I infer from Mr Smith’s affidavit that some of the measures that were required by the Liquor Administration Board included a clearly defined demarcation, the ability to shut off the licensed premises at hours when the Liquor store is not allowed to trade; and the provision of appropriate signage and monitoring by way of a closed circuit television system. There were no doubt other requirements as well.

62 Mr Chambers’ Town Planning report also refers to the licensed premises as “proposed premises within the Woolworths supermarket”. At 2.3.2, Mr Chambers’ report states: -

“ Description of proposed premises
The position of the proposed premises within the Woolworths Supermarket, and the configuration of the proposed liquor store, are shown on figure 7. The Woolworths Liquor outlet will be located in the north western corner of the supermarket, close to the check outs.
The area of the supermarket to be occupied by the proposed liquor store is presently used for the display of stationery and garden items.
The proposed premises will consist of a general showroom area, with high and low profile shelving and bulk displays, refrigerator cabinets and a cool room with an associated shelving displays. Two cash registers will be located adjacent to the eastern wall of the premises.”

63 The plan in Mr Chambers’ report appears at figure 7. It shows a “new liquor store” with shelves, a cool room and walls between it and the supermarket. The plan is labelled “Proposed Premises”.

64 On the basis of this material, which as I have said had been tendered by Mr Costigan of counsel on behalf of the plaintiff, the Licensing Court reached its conclusion that, consistently with the decision in Kupke’s case, the conditionally granted application related to premises proposed to be erected. On that basis it found for the first defendant on the jurisdictional point and, as I have earlier said, granted the application for the alternative site.

65 In my view, it was open to the Licensing Court to reach the conclusion of fact it did. Moreover, far from that decision being in any sense unreasonable, it appears to me to be a decision that was absolutely correct in every respect.

66 An inspection of the material to which I have referred enabled the Licensing Court to discern that the northern and western walls, being the perimeter walls of the supermarket, were already constructed. On the other hand, the south, south eastern and eastern walls including the roller shutter facilities on the eastern wall were yet to be erected. It was of course, common ground that the internal shelving, cool room and cash wrap units were to be installed. Moreover, the Licensing Court was entitled to infer that this was the situation both at the time of the lodgement of the application and at the time when the conditional order for removal was made in March 2004.

67 Although the Licensing Magistrates did not mention in specific terms the argument advanced in relation to the “de-walling” proposal, I have no doubt that the members of the Licensing Court were well aware of the issues involved. An inspection of the plan shows that it was only part of this area that would be “de-walled”. The direct access between the supermarket and the proposed liquor store was limited to the areas of the two roller shutters to be installed in the eastern wall. I do not infer, nor did the Licensing Court, that the proposal was to have no walls on the eastern side of the premises. Rather, there was to be a wall with provision for two roller shutter facilities incorporated into it. Both the plan and Mr Smith’s 2002 affidavit are consistent with this situation and quite inconsistent with any proposal to the contrary.

68 Once again it is necessary to say that the Licensing Court is a specialist court. As such, it would be very familiar with plans of proposed licensed premises and its own requirements in relation to those premises where they are to be associated with a supermarket. This Court, in my view, should exercise a considerable degree of cautious and restraint before making findings contrary to those made by the Licensing Court in this highly technical and specialised area.

69 For these reasons, I am satisfied there is no substance in the second point argued on behalf of the plaintiff.

70 Before leaving the matter, there is one further aspect I would wish to mention. This is no way necessary for the purposes of my decision and is accordingly no more than a gratuitous observation. The parties, however, invited me to read the transcript of the hearing before the Licensing Court and I have done so. It seems to me that the jurisdictional point relied upon by the plaintiff both at the hearing and before me was not one of which precise notice had been given to the first defendant. I do not doubt that there had been an objection taken claiming that the Licensing Court had no jurisdiction to entertain the application under s 40(3)(b). However, it appears quite clear that the substance of that ground had not been notified to the first defendant at the time the hearing commenced before the Licensing Court, or indeed at the time when Mr Austin SC was invited to close his case. Later, when the point was taken in specific terms, Mr Austin rightly, in my view complained of the situation which he described as an “ambush”. To his credit Mr Lawry of counsel, who appeared for the competing applicant, made it clear that he had intended no ambush. Mr Lawry in fact did not oppose Mr Austin’s application for leave to re-open for this reason. Mr Costigan, who appeared for the present plaintiff, also disclaimed any intention to ambush the first defendant. He however opposed vehemently the application for leave to re-open and was in fact successful in persuading the Licensing Court to refuse Mr Austin’s application to adduce further evidence.

71 I merely wish to say that in this day and age, litigation by ambush should not be tolerated. Apart from the unfairness it may cause a litigant, it has the capacity to seriously damage the fabric of professionalism and courtesy between practitioners.

72 The Liquor Act 1982 concerns itself with litigation that is often highly technical and often very hard fought. There are substantial economic interests often in issue and the Licensing Court has the difficult task of super imposing the public interest on these private economic interests where it is appropriate to do so. The legislation often invites jurisdictional attacks. Where those attacks occur a stringent onus will often be placed upon an applicant to prove the Court’s jurisdiction to entertain the particular application. It is important however in my view that the Licensing Court should insist that persons who take jurisdictional objections should spell out well in advance of the hearing precisely what those objections entail. In the present case, the first defendant should have been made aware of the ambit of the objection and its precise content. The Licensing Court should have insisted that this be done and, as a matter of professional comity, counsel for the plaintiff should have informed his opponent of the matter in issue prior to the closure of the first defendant’s case.

Appropriate Orders

73 Returning to the matters in issue in the appeal, I have concluded that the learned members of the Licensing Court did not fall into error in any respect. It is therefore unnecessary for me to consider the ultimate fate which might await the affidavit of Mr A. C .L. Smith. I have held this topic in abeyance throughout these considerations. Since it is not necessary to make any decision in relation to its admissibility on any final basis, I will, without deciding the difficult legal issue underlying its tender, simply reject it as evidence in these proceedings.

74 I dismiss the summons.

I order the plaintiff to pay the first defendant’s costs.

The Exhibits may be returned.

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