Hurley's Arkaba Hotel Pty Ltd & Ors v Liquorland (Australia) & Ors

[2002] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A31 of 2001

B e t w e e n -

HURLEY’S ARKABA HOTEL PTY LTD

First Applicant

CYRIL THOMAS LAMPARD

Second Applicant

MARGAL INN INVESTMENTS PTY LTD

Third Applicant

HUDSONE PTY LTD in partnership with SLOT PTY LTD

Fourth Applicant

WILHUR PTY LTD

Fifth Applicant

THE CLYDE PTY LTD

Sixth Applicant

HULBERT PTY LTD

Seventh Applicant

JOHN LEWIS

Eighth Applicant

DUKE UNLEY PTY LTD

Ninth Applicant

DUKE ENTERPRISES

Tenth Applicant

DUKE EQUITIES

Eleventh Applicant

DUKE  PROPERTIES

Twelfth Applicant

DUKE CONSTRUCTIONS

Thirteenth Applicant

DUKE HOLDINGS

Fourteenth Applicant

and

LIQUORLAND (AUSTRALIA) PTY LTD

First Respondent

TED and BETTY BISHOP

Second Respondents

DAVID FORD PALLY

Third Respondent

TONI and JOHN LUBBE

Fourth Respondents

TERESE SWINDEN

Fifth Respondent

CHRISTOPHER E. DONALD

Sixth Respondent

JOANNE MATAKAKIS

Seventh Respondent

SUE ROBERTS

Eighth Respondent

PAUL ABRAHAM

Ninth Respondent

SHERALYN STILLERT

Tenth Respondent

BELINDA GOVIER

Eleventh Respondent

NICOLAOS TZOTZIS

Twelfth Respondent

PAMELA R. PHILLLIP

Thirteenth Respondent

LEONIE MILBURN

Fourteenth Respondent

JOHN ANDREW CONSTANT

Fifteenth Respondent

HAROLD BURNS

Sixteenth Respondent

FRED FREDE

Seventeenth Respondent

REBECCA TRENGROVE

Eighteenth Respondent

RAELENE JOY GILL

Nineteenth Respondent

GARY ALCOE

Twentieth Respondent

FRAN HERBUT

Twenty-first Respondent

PAUL MASON

Twenty-second Respondent

GERRI JOHNSON

Twenty-third Respondent

ANNE HOSKINS

Twenty-fourth Respondent

RUTH RICHARDSON

Twenty-fifth Respondent

KRYSTYNA VSZYNSKI

Twenty-sixth Respondent

DANIEL CHARLES WESTERN

Twenty-seventh Respondent

ANGELA RASCHELLA

Twenty-eighth Respondent

MEGAN MERCIECA

Twenty-ninth Respondent

DAWN ELLEN CHIVELL

Thirtieth Respondent

PRUE GILBY

Thirty-first Respondent

JUDITH ANNE WATERMAN

Thirty-second Respondent

PETER BROOKES

Thirty-third Respondent

JOE COTRONEO

Thirty-fourth Respondent

TANIA CLARK

Thirty-fifth Respondent

NATASHA DEROSI

Thirty-sixth Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 2002, AT 4.20 PM

Copyright in the High Court of Australia

______________________

MR S. WALSH, QC:   If the Court pleases, I appear for the applicants.  (instructed by Clelands Solicitors)

MR T.R. ANDERSON, QC:   If the Court pleases, I appear with MR. B.F. BEAZLEY for the respondent, Liquorland (Australia) Pty Ltd  (instructed by Hunt & Hunt)

GUMMOW J:   The Court holds a certificate from the Deputy Registrar advising that she had written to the second to thirty‑sixth respondents asking them to inform her of their intentions with regard to this present special leave application.

She has been informed by the following respondents that they do not wish to participate in the special leave application:  namely, the thirteenth respondent, Pamela Phillip; the seventeenth respondent, Fred Frede; the twenty‑second respondent, Paul Mason; the thirty‑first respondent, Prue Gilby; the thirty‑fourth respondent, Joe Cotroneo; the thirty‑sixth respondent, Natasha Derosi.

The Deputy Registrar’s letters to the following respondents have been returned undelivered:  respondents five, seven, twenty‑four, twenty‑seven and thirty‑five and she has had no response from the remaining respondents, namely respondents second to fourth, sixth, eighth to twelfth, fourteenth to sixteenth, eighteenth to twenty‑first, twenty‑third, twenty‑fifth, twenty‑sixth, twenty‑eighth to thirtieth and thirty‑second and thirty‑third, and I think that completes the rollcall.

Yes, Mr Walsh.

MR WALSH:   If the Court pleases, the first point is the question of discretion exercised by an expert tribunal.  If I can just put the background to our submissions in relation to this matter by taking you to the judgment of the trial judge and also of the appellate court to illustrate the point that we make and the complaints that we make.

HAYNE J:   Is this a point about whether the Full Court should have exercised the power, not whether they could have?

MR WALSH:   Yes, your Honour, and also we bought into that the question of whether they could have as well.

HAYNE J:   “They should have” seems to be a peculiarly unpromising candidate for leave, I would have thought, but you develop it as you see fit.

MR WALSH:   It will be both issues that we will address, of course, your Honour, but it will illustrate the approach that the appellate court took and it is against that background that we then look at the question that may well be the one that is most important from our perspective.

If I can take you, just very briefly, to the learned trial judge’s decision which commences, for my purposes, at page 6 on the topic of matters that may have been relevant to the exercise of discretion.  Your Honours will see that at page 6 at about point 40, his Honour in paragraph 3 was dealing with the question of the general area and the Unley shopping centre and referred to an earlier decision of Cibolini and his Honour had heard evidence in relation to that.  His Honour had heard evidence from witnesses, presumably from the very respondent that we have here today, and his Honour had made some findings with respect to that and noted at the top of page 7 that the “worm has turned” in relation to their position in so far as they were making the application that was then before him.

If the Court pleases, his Honour dealt with the question of the public interest issues, if I can put them that, keeping in mind that public interest issues are important from the perspective of the duties of the trial judge, and his Honour dealt with the question of the complaints that had been made by the licensee at the foot of page 7, and then importantly at page 8, his Honour dealt with the question of the evidence of one of the witnesses called for the applicant, namely the respondent in this case.  At page 8 point 7, his Honour said:

Mr Francis was not at all in favour of this suggested solution.  He tried to pretend that for his Company to accede to the offers would risk the viability of the store.  That sounded at the time to be an exaggeration and after cross examination, a gross exaggeration. 

A little later, point 25:

I have not mentioned parking and delivery to cars at the centre.  Again the impression was given that this posed very significant problems for the licensee.  It was nonsense.

That was his Honour’s conclusion on the evidence, keeping in mind that the applicant, in that case at trial, called no evidence other than Mr Francis and somebody who was not even the manager of the store, Ms Aston – not a manager, not the deputy manager.

His Honour then dealt with the question of, we say, discretion, at page 11 of the application book.  His Honour said:

The proposal generally

I have no quarrel with the concept at all.  It is a very sensible commercial decision . . . But I must look at a wider field.  Public interest and the provisions of the Liquor Licensing Act are this Court’s domain.  The proposal does not fit kindly within that domain.

His Honour is obviously drawing upon his vast experience, keeping in mind that this judge has been associated with this court, specialist court, that is, and other courts for 30 years possibly.  His Honour then went on to say:

The public, as represented by the witnesses called by the objectors (I note not one from the applicant) do not want it.  Indeed I am not surprised that the applicant called no such evidence.  I would think and infer that there would be very few indeed who would favour a shift of their preferred bottleshop from the area of their preferred major shopping centre which would require a special trip with attendant traffic difficulties.  Whilst I generally accept Mr. Young’s views I do have my concerns . . . that driving away . . . would be . . . awkward task.  But that apart I detect a groundswell of public opinion against this proposition notwithstanding the greater size and greater range of the proposal.

Now, can I take your Honours to the way in which the Court of Appeal dealt with that issue, and I commence by taking your Honours to page 25 of the application book.  At paragraph 23 his Honour Justice Perry, who delivered the substantive judgment of the court, referred to Mr Francis and then talked about the evidence of Mr Francis, and I will not take you through it – referred to Ms Aston, who was a most unsatisfactory witness, and spent some time talking about the evidence of Mr Francis.  Then, if I can jump a little to page 38 at paragraph 99:

For the reasons which I have given, the only real issue in the case is whether or not, in the exercise of the discretion pursuant to s 53 of the 1997 Act, the application should be refused.

His Honour said:

this Court is in as good a position a was the learned Licensing Court judge to address that question.

Over the page, his Honour then dealt with issues relating to a number of issues that his Honour thought were important, but for our purposes, if I can take your Honours to page 40, his Honour simply said, at line 10, after referring to the Licensing Court judge referring:

to the evidence given by the witnesses . . . 

I do not consider that the evidence tendered in the case justified that conclusion.

No reference to what that evidence was in truth or in substance, given that there were a number of witnesses who were called on behalf of objectors and who actually used the applicant’s store.  The applicant called no witnesses, even though they would have had considerable access to those witnesses, of course.  His Honour, just with a wave of the wand, said:

I do not consider that the evidence tendered in the case justified the conclusion.

His Honour then went on to say, a little later on the page, line 35, that in relation to one of his Honour’s earlier decisions, in relation to:

“…the finding of a relevant need –

and the fact that you do not need to call witnesses necessarily –

does not necessarily turn upon the cogency of a voiced demand.  On the contrary, there are many other factors to be taken into account, some of which stem from the objective geographic and demographic features of the relevant locality, the knowledge of the licensing authority, which may be presumed without the need for evidence –

and so forth, talking about the very features that are very important in an expert court, namely the knowledge that an expert court, tribunal or judge has.

HAYNE J:   But, therefore, what is the point that is being made; that the Full Court should not have exercised the discretion, but should have remitted on it, or is that the Full Court should not have exercised it this way?

MR WALSH:   Your Honour, it should not have exercised it at all.  It should have remitted the matter, and the point that we are making at this stage is that here his Honour is saying, “Look, the Licensing Court is a very specialist tribunal and knows things that are not necessarily in the evidence before him or her and can take into account all manner of things” as, indeed, your Honour, the judge can under the Act.  Here is a court referring to that fact, but then replacing its own view for that of the learned trial judge. 

At page 41 his Honour talked at line 10 of Mr Francis’ evidence again, which his Honour had quoted from extensively previously and at line 20:

The learned Licensing Court judge refers to the question of parking and ingress and egress –

and things like that –

but it seems to me that the considerations to which he had regard in that respect were not such as might properly lead to the exercise of the discretion against the grant. 

No explanation given as to why his Honour concluded that, no reference to any of the witnesses who actually gave the evidence about all of those things; merely just, once again, rejected his Honour’s finding, in our respectful submission, totally impermissibly.  His Honour concluded at 112:

In all the circumstances, it seems to me that there are no considerations which should lead to the exercise of the discretion against permitting the proposed removal.

Nothing at all.  Now, if I can take the Court then to the book of authorities and just the role of the Licensing Court judge in a case such as this.  Can I take you to the extracts from the Act, and Part 1 “Preliminary”, the “Objects of this Act” and section 3 should be the first page of the book before you.  Your Honour will see that the objects of the Act, only one of which his Honour Justice Perry referred to, which was not really an issue in the trial in any event, is contained within this list of objects:

(a) to encourage responsible attitudes . . . 

(b) to further the interests of the liquor industry and industries with which it is closely associated . . . 

(c) to ensure that the liquor industry develops in a way that is consistent with the needs and aspirations of the community; and

(d) to ensure as far as practicable that the sale and supply of liquor contributes to, and does not detract from, the amenity of community life; and

(e) to encourage a competitive market –

Now, his Honour merely referred to one, but not the balance, and the objects clearly illustrate the public interest nature of the judge’s duty.  The next page, section 23 of the Act provides that:

In proceedings before the Court . . . the Court-

(a) must act without undue formality; and

(b) is not bound by the rules of evidence but may inform itself on any matter as it thinks fit.

Of course, an appellate court cannot do that.  Powers with respect to records, including evidence, include (c) “inspecting records”  Over to the fourth page, “GENERAL POWERS AND DISCRETIONS OF LICENSING AUTHORITY” –

53. (1) Subject to this Act, the licensing authority has an unqualified discretion to grant or refuse an application under this Act on any ground, or for any reason, the licensing authority considers sufficient (but is not to take into account an economic effect –

and it is well understood that you cannot do that and that the learned trial judge did not.  More importantly, subsection (2):

A licensing authority should not grant an application as a matter of course without proper inquiry into its merits (whether or not there are objections to the application).

Now, I mentioned those passages of the Act because it is very, very clear that what Parliament has prescribed here is a specialist court with a specialist judge, and this judge was a very experienced, specialist judge, who is charged to consider the public interest when one ‑ ‑ ‑

HAYNE J:   It has also provided an appeal and it has given powers to the Full Court.  Now, if what the Full Court did was within its power, and for the moment it is not evident to me why it was not, why should this Court get into the degree of detail that would be necessary to decide whether a particular discretionary outcome was available?

MR WALSH:   The way in which we put our argument, your Honour, is that there was no basis upon which the court could have exercised its discretion on the case before it as opposed to remitting it to the specialist judge.  The reason we say that is that there was evidence all one way which his Honour accepted and was entitled to accept.  Having reached the conclusion that his Honour may have erred with respect to the issue of the second point which we raise and as the special leave point, having failed against his Honour in relation to that, the court was not in a position to make the decision that it did and it impermissibly exercised its appellate role to reject evidence that his Honour had found and which was open to him on the evidence, not give explanation as to why that evidence was rejected and merely exercise a discretion, as it were, based upon Mr Francis’s evidence and a reference to one object in the Act, not the whole of it.

How could it be said that there has been a permissible exercise of the appellate role when only one object is referred to and in exercising the discretion the other objects are not being referred to and analysed against the background of that one which is?  How can it be said that there is a permissible exercise of discretion, having regard to the fact that the Licensing Court has inherent knowledge of the industry relating to those very matters in the objects of the Act, which the appellate court does not have?

So, it is in that context that we say that it was not open to the appellate court to interfere in the way in which it did.  It should have remitted the matter back.  It should have accepted that, as a matter of fact, it could not exercise its discretion.

True it is, your Honour Justice Hayne, that there is a power for the Full Court to do it in certain circumstances, but in this case it was utterly impermissible and was done in a way in which, if its decision is left to stand, it really puts the position of the expert tribunal in a position where it can always be safely challenged, merely because there was the difference of opinion based upon one part of the factors that have to be taken into account as opposed to others.

So, in our respectful submission, what happened in this case, having exercised the court’s discretion in an impermissible way when the court was not in a position to exercise the discretion, when it took no account of public and community considerations and stability within the liquor industry, all those matters that the trial judge had to take into account, set aside findings of fact in an impermissible way, misunderstood its role as an appellate court, it must be, in our respectful submission, a matter which warrants the attention of this Court, whether it be because it is an issue that is of importance to all specialist tribunals as opposed to tribunals, but specialist courts, which is relevant across Australia, or, alternatively, because the interests of administration of justice require it in this case.

GUMMOW J:   It is good for specialist courts sometimes to get a bit of fresh air from outside.

MR WALSH:   I am sorry.

GUMMOW J:   It can be a good thing for so‑called specialist tribunals to get a gust of clear, cold air from outside from time to time.

MR WALSH:   Once in a while.

HAYNE J:   Otherwise they continue to administer “lore” rather than “law”.

MR WALSH:   Yes, your Honour.  If the Court pleases, there was a very old decision that is referred to quite often in the context of this Licensing Act.  It was a former Licensing Act and that was Rizzon v Dalgety and in that case the Full Court of the Supreme Court refused to interfere with the court’s entitlement to deal with the matter even though there was an argument about a landlord’s rights.  It did not deal with the issue that we are dealing with here, but it does illustrate one thing, and that is that having rejected the appeal against the decision of the Full Court, the High Court reinforced the importance of specialist tribunals being given the opportunity to exercise the powers that they have been given.

Now, it has been a long time, of course, since Rizzon and, in our respectful submission, this may be the time for a breath of fresh air from afar to remind the courts as to the appropriate appellate role in cases such as this.

The other issue that we raise by way of special leave point is the issue of statutory interpretation and the point in short is this; that the grounds of objection under the Act allowed the very objection that was made, which is said is irrelevant for the purposes of the test.  Can I take your Honours to the section, which is contained within the book of authorities?

Firstly, the section that we are dealing with in terms of the primary issue is section 61(2), which is page 39 at the top right‑hand corner.  Section 61 - your Honours will see it deals with, firstly, hotel licences, (2) deals with “retail liquor merchant’s licence” and what Parliament has done is created still a bias in favour of retail liquor merchant’s licences, but importantly, what Parliament left, by way of objection appears on the next page under section 77(5)(c):

An objection may be made on one or more of the following grounds:

. . . 

(c) in the case of an application by a natural person for the grant or removal –

and I will stress the word “removal” –

of a retail liquor merchant’s licence-that the grant of the application is not necessary in order to provide for the public demand for liquor for consumption off licensed premises in the area in which the premises or proposed premises to which the application relates are situated –

Now, that is the very public demand that the Full Court said did not have to be met in this case because it was within the same area.  In a sense it offends the decision of the High Court referred to in my learned friend’s list of authorities of O’Sullivan v Farrer and Another, where in the New South Wales Liquor Licensing Act it specifically provided that in relation to objections, there is no objection in relation to the need issue if the removal is within the same neighbourhood.

In other words, Parliament specifically dealt with the matter on the basis you could not object on that ground.  Here, Parliament has left the ground of objection and yet it is said by the court, “Despite that”, as his Honour Justice Perry found, “it would lead to the conclusion that we think it should lead to”.  The anomaly that his Honour referred to was no anomaly at all, in our respectful submission.  Shifting short distances can be proven by the demand because of the unsatisfactory nature of the premises.

So if the Court pleases, they are the two issues that we raise.

GUMMOW J:   Yes, thank you, Mr Walsh.  We do not need to call on you, Mr Anderson.

The South Australian Full Court allowed an appeal from the Licensing Court exercising the powers conferred by the Liquor Licensing Act 1997 (SA). The Full Court’s decision is reported in (2001) 80 SASR 59. The complaints made by the applicant in this Court principally concern the consequential relief which, in effect, directed the Licensing Court to grant the application for removal of the first respondent’s retail liquor merchants licence from a certain shopping centre to other premises nearby.

These proposed grounds of appeal raise no question of principle respecting the powers of the Full Court sufficient to warrant a grant of special leave.  With respect to the other issues of construction of the legislation, the decision of the Full Court is not attended by sufficient doubt to attract a grant of special leave.  Accordingly, special leave is refused with costs.

AT 4.41 PM THE MATTER WAS CONCLUDED