in the Matter of Liquor Licensing Act 1985 No. SCGRG 97/686 Judgment No. 6190 Number of Pages 5 Appeals Liquor Licensing

[1997] SASC 6190

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PERRY, J

Appeals - liquor licensing - on an ex parte application for leave to appeal from the dismissal by the Licensing Court of an application for removal of a retail liquor merchant's licence, the landlord of the licensed premise and objectors appeared at the hearing and sought leave to be heard in opposition - leave refused - observations as to the undesirability of opposing parties attempting to intervene in ex parte applications for leave to appeal - a practice which had arisen in the case of appeals under the Liquor Licensing Act 1985 deprecated and should no longer be followed - other observations as to the procedure to be followed on liquor licensing appeals. Liquor Licensing Act 1985 ; Supreme Court Rules R 94.01A, referred to. Mick Lucas & Son Pty Ltd v The Licensing Commissioner and Anor (1987) 45 SASR 312, considered.

ADELAIDE, 16 May 1997 (hearing), 29 May 1997 (decision)

#DATE 29:5:1997

#ADD 2:6:1997

Applicant Teiladore Pty Ltd:

Counsel: Mr D Morgan

Solicitors: Morgans Solicitors

Order: publication of reasons for decision.

PERRY J

1. On 16 May 1997 I gave to the applicant, Teiladore Pty Ltd ("Teiladore"), leave to appeal to this Court against the dismissal by the Licensing Court of an application for removal of a retail liquor merchant's licence to Burnside Village shopping centre from a nearby location. At the time I gave leave, I reserved the right to publish reasons.

2. I took that course as it seemed to me that a practice had grown up with respect to applications for leave to appeal from the Licensing Court which ought to be changed.

3. The application to this Court was brought in the ordinary form by summons. It was endorsed to the effect that it was not intended to serve the summons on any person, that is, it was to proceed as an ex parte application.

4. In fact, on the hearing before me, as well as counsel for Teiladore, counsel appeared on behalf of Peter Balfour Nominees Pty Ltd, the landlord of the subject premises, and also for two other objectors, namely, Baily and Baily Liquor Stores and the Feathers Hotel. In addition, counsel appeared for the Licensing Commissioner.

5. The latter informed the Court that she appeared merely as a matter of courtesy, and the Commissioner would abide the event of the application.

6. At the outset I drew the attention of counsel to the fact that I did not think it appropriate that counsel for opposing parties, or even counsel for the Commissioner, should be present on an application which the applicant was entitled to make ex parte. When I raised the matter, I was informed by counsel that the practice had grown up, in particular with respect to appeals under the Liquor Licensing Act 1985, whereby upon opposing parties such as objectors being made aware of an application being made to this Court, even although it was ostensibly made ex parte, they would turn up at the hearing, and from what I was informed, would invariably be given a hearing.

7. If that is a practice which has developed, in my opinion, it should no longer be followed.

8. The relevant parts of R 94.01A are as follows: "1. Where by an Act or Rule any appeal to the Full Court of the Supreme Court from a Court (other than the District Court, the Youth Court, the Environment Resources and Development Court or the Magistrates Court) or a tribunal is subject to obtaining leave from the Supreme Court that leave may be sought on an ex parte summons which is to be issued within 14 days of the making of the judgment or order complained of or within such other time as is provided by Statute.

2. The summons is to be heard by a Judge in chambers ex parte, or upon such notice to other interested persons as the Court may direct.

3 ...

4. A copy of the summons is to be served by the appellant forthwith upon the proper officer of the Court or tribunal which made the decision complained of.

5. Upon receipt of a summons under (4) above the proper officer of that Court or tribunal, unless the Supreme Court otherwise orders, is to transmit forthwith to the Registrar of the Supreme Court: (a) all documents lodged with the Court or tribunal relating to the decision complained of; (b) a copy of any transcript of proceedings of that Court or tribunal relating to the decision complained of; (c) any exhibits in the custody of the Court or tribunal relating to the decision complained of; (d) any copy of the order or decision complained of."

9. I will deal with the position of the Commissioner first.

10. I was informed by counsel for the applicant that he had made an inquiry of the Licensing Court before proceeding with the service of the application for leave to appeal. When he did so, he was advised that the Crown would accept service. He proceeded to forward the papers to the State Crown Solicitor's office.

11. In my opinion, that course was both irregular and undesirable.

12. When R 94.01A(4) provides for service upon a "proper officer of the Court or tribunal", I do not think that it is appropriate for the Court or tribunal to nominate solicitors to accept service. While solicitors may accept service of processes issued in many other situations, in cases such as this, the purpose of serving the Court or tribunal is to trigger off the obligation of the proper officer of that Court or tribunal to transmit the papers to the Registrar of this Court.

13. The most common example of that procedure is in the case of appeals under the Magistrates Court Act 1991. Appeals under that Act result in some dozens of files from the Magistrates Court being transmitted to this Court every month. It would not be proper for the Magistrates Court to nominate solicitors to accept service. Neither do I think it proper for the Licensing Court to take that course in the case of appeals under the Liquor Licensing Act..

14. A consequence of the procedure adopted in this case was delay and confusion. In the first place, the file was not transmitted to this Court before the hearing of the application for leave to appeal came on before me. This meant that I did not have before me a copy of the judgment against which it was sought to appeal.

15. When the matter came on for hearing, Ms Bradsen, who appeared for the Licensing Commissioner, said that "for some reason" the papers had not reached her and that she was under the mistaken apprehension that it was an application for judicial review.

16. There is absolutely no reason to criticise her, but that this course of events took place illustrates the problems which arise when the lower court is not served directly.

17. If there is a practice by the Licensing Court of nominating the Crown Solicitor to accept service of notices of appeal, it should not continue, and the notices (or applications for leave to appeal) should be served direct upon the court. The Licensing Court should have an appropriate mechanism in place to ensure that, following service, there is prompt transmission of the documents, as prescribed in R 94.01A(5), to this Court.

18. I turn to the position of the other parties, apart from the applicant, who sought an audience on the application for leave.

19. Apparently they heard of the application coming on by watching the Causes List. Be that as it may, the reason why I declined to hear them is that to do so would be contrary to both the spirit and the letter of the Rules.

20. The procedure by which applications for leave to appeal may be made ex parte is designed to ensure that unnecessary expense is not incurred, both by the applicant and by the parties who might be prompted to attempt to resist the application. Furthermore, such applications ought not to require any extended hearing. They are designed simply to screen appeals to the Full Court to ensure that only matters which warrant the attention of that Court proceed.

21. The hearing of an application for leave to appeal is not a hearing in which the merits of the appeal are canvassed in any depth. They are listed before a single Judge of this Court and can ordinarily be disposed of in a matter of minutes if the Judge has had an opportunity of perusing the papers beforehand.

22. It is no answer, as counsel for the objectors suggested, that if given an audience they would not seek costs against the applicant in any event. Their clients no doubt would nonetheless be put to the expense of their attendance, an expense, for the reasons which I have given, the procedure is designed to avoid.

23. When leave is a precondition to the right of appeal from a lower court or tribunal , it would not be right to attempt to lay down any hard and fast principles as to how the application for leave may be properly dealt with.

24. On the other hand, an appeal from the Licensing Court is a first appeal and commonly involves substantial elements with respect to both the public interest and commercial interests. These considerations mean that applications for leave to appeal under the Liquor Licensing Act, while by no means a formality, may have an easier passage than might be thought appropriate in the case of similar applications from other courts or tribunals.

25. But leave should not be given unless the case is reasonably arguable. A further consideration which must be borne in mind is that the Licensing Court is a specialist tribunal. This Court does not lightly interfere with the exercise by that court of its discretion when the case turns upon considerations which might be thought to be peculiar to that court's understanding of and experience of public demand and preferences with respect to the availability of liquor outlets and amenities.

26. I draw attention to the observations of King CJ in Mick Lucas & Son Pty Ltd v the Licensing Commissioner and Anor: "The criteria to be applied in granting or refusing leave must be influenced to a considerable extent by the fact that the appeal is a first appeal from the court of first instance. The appeal provision differs from that in the Licensing Act 1967, in that the appeal was as of right on questions of law but by leave only on questions of fact. I thought that that distinction was significant in determining the intention of the legislature and in Tomley Investment Co Pty Ltd v Superintendent of Licensed Premises I expressed the view that on questions of fact 'the intention of the legislation is that the decision of the special tribunal will ordinarily be final' and that 'this Court should grant leave only in special circumstances'. I do not think that that reasoning can be applied to the present appeal provision. All appeals under the present Act, whether of fact or law, are by leave. The reason for the presumption against leave no longer exists. The appeal to this Court is to be regarded simply as a first appeal but by leave only.

In these circumstances, the requirement for leave must be designed, in my opinion, to confine appeals to cases which are reasonably arguable and in which the subject matter is of sufficient substance to justify the cost of an appeal. Where those criteria are satisfied I think that leave should ordinarily be granted."

27. It is true that R 94.01A(2) contemplates that in an appropriate case the court may direct notice of an application for leave to be given to other interested persons. No doubt in a proper case this Court might think it appropriate to so direct, in the context of an appeal under the Liquor Licensing Act, that service be effected upon other parties such as objectors. However, I cannot imagine that circumstances in which the need might be thought to arise for any such direction would be other than rare.

28. Parties should not be encouraged to intrude into the hearing of ex parte applications in the hope of obtaining an opportunity to advance an argument against the grant of leave unless there are good reasons which distinguish the case from the ordinary.

29. Before parting with the matter, I should make one further observation. In my opinion, applications for leave to appeal should always be accompanied by a draft of the notice of appeal which it is proposed to file should leave be given. In this case, that was not done, and I limited the applicant to bringing a notice of appeal giving expression only to the grounds of appeal set out in the supporting affidavit.