Josef Vuzem, Maria Vuzem, Jim Cupkovic, Adrianna Cupkovic, Dusan Cupkovic and Sonia Cupkovic, Mobil Oil Australia Limited, BP Australia Limited and P and C Sutton Investments Pty Ltd v Motor Fuel Licensing Board..

[1994] SASC 4529

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(2), OLSSON(1) AND NYLAND(3) JJ

CWDS
Administrative law - judicial review on grounds of ultra vires or defective exercise of powers - Application for judicial review to quash decision of Motor Fuel Licensing Appeal Tribunal overturning refusal to transfer motor fuel retailing licence to new premises - applicants holders of similar licences in the vicinity of the new premises - applicants not having locus standi without positive exercise of discretion by Court - errors alleged by applicants not going to jurisdiction of Tribunal or being of a nature attracting the type of relief sought - in any event findings of fact made by Tribunal fairly open to it on the evidence. Motor Fuel Distribution Act ss 22, 30, 34, 36. Walsh and Ors v Motor Fuel Licensing Board (1991) 162 LSJS
337; Wormald Australia Pty Ltd v Industrial Commission of South Australia
(1992) 58 SASR 447 and D M and A J Bell Pty Ltd and Ors v Motor Fuel Licensing Appeal Tribunal and Ors (1980) 50 SASR 39, applied. Australian Conservation Foundation v The Commonwealth (1981) 146 CLR 493; Onus v Alcoa of Australia Limited (1980) 149 CLR 27; Ogle v Strickland (1987) 71 ALR 41 and Cameron v Human Rights and Equal Opportunity Commission (1993) 119 ALR 279, considered.

HRNG ADELAIDE, 7 April 1994 #DATE 6:5:1994

Counsel for applicants:                 Mr D Bleby QC with
   Mr Lumsden

Solicitors for applicants:             Baker O'Loughlin

Counsel for respondents Motor Fuel:     Mr M F Johns

Solicitors for respondents Motor Fuel: Crown Solicitor

Counsel for other respondents:         Mr B Hayes QC With
   Mr G Manos

Solicitors for other respondents:     Manos And Associates

ORDER
Application dismissed.

JUDGE1 OLSSON J This is an application for judicial review, pursuant to SCR98.01, sought to be prosecuted by persons claiming to be aggrieved by a decision of the Motor Fuel Licensing Appeal Tribunal ("the Tribunal") published on 1 October 1993.

2. Before addressing the legal issues arising on the application it is first desirable to summarize the relevant facts.

3. The present applicants are the respective owners, lessees or operators of two existing motor fuel retail outlets (duly licensed for that purpose pursuant to the provisions of the Motor Fuel Distribution Act, 1973 ("the Act")) situated in and about the Athelstone area.

4. On 30 September 1974 Licence No 837, authorising G.D. and E.I.A. Hamilton to effect retail sales of motor fuel from premises situated at 386 Gorge Road, Athelstone ("the present premises"), was duly issued by the Motor Fuel Licensing Board ("the Board") pursuant to the provisions of the Act. That licence was, with the approval of the Board, subsequently and successively transferred to O and M Totani (on 27 February 1987) and L and A Cirocco and R and C Capogreco (on 1 December 1989). The evidence reveals that the premises the subject of the licence comprised what had the appearance of an old fashioned general or other store with three fuel pumps at the front of it and a "Southern Cross" brand sign on the roof of the front of the building. The site comprised the first refueling facility encountered by traffic emerging from the hills along the Gorge Road, when heading towards the city.

5. Until July 1990, a licensed Shell service station was also operated at premises situated at 310 Gorge Road, Athelstone ("the proposed premises"), some 900 metres distant from the present premises, closer to the city. At that time it was closed (due, apparently, both to its then questionable economic viability and also a break up of the marriage of the operators). The relevant licence was cancelled.

6. That closure proved a windfall, in the form of an immediate upsurge in sales, to two other service stations in particular, which were conducted in the near vicinity. These were operated by the plaintiffs Cupkovic and P and C Sutton Investments Pty Ltd respectively.

7. The fuel retailing business conducted on the present premises appears to have had a somewhat chequered history.

8. The relevant licence was suspended by the Board between 1 July and 30 December 1991 at the request of Cirocco and Capogreco. Trading recommenced in January 1992, but a further suspension was sought and approved for the period 1 February to 31 August 1993, on the ground that the premises were to be renovated. Fuel sales, in fact, recommenced in July 1993.

9. Evidence placed before the Tribunal indicated that, commencing from 1 January 1992, a large workshop at the rear of the present premises was leased out, as a motor vehicle repair and maintenance workshop, to one D'Amato. It was a specific term of the leasing arrangement that, unless otherwise agreed by the landlord, D'Amato would continue to sell fuel from the pumps at the front of the premises to any motorist who required it. Prior to that time D'Amato had conducted his activities in the front portion of the premises, but required more accommodation. His tenancy and legal occupancy had not included the fuel pumps in front of the premises, nor were they formally included in his expanded tenancy.

10. Both Cirocco and D'Amato were called as witnesses before the Tribunal. They confirmed that situation, although it readily appeared that the quantity of fuel sold was quite small and that D'Amato ceased retailing fuel in about October 1992. Prior to then he mainly supplied his own clients and himself, as well as a small number of casual customers. Cirocco's evidence concerning the period from 1 October 1992 to 1 February 1993 was to the following effect:-
    "Q. Can you go back to October of 1992. Between October
    1992 and the end of 1992 were you working at the premises.
    A. Yes, because with Mr D'Amato we again have some argument
    and I said 'All right, give it to me and I will take the
    position' but I no selling big amount but, you know, from 1
    October 1992 for the last, you know, about three or four
    months, I do. Every day, part-time, I go there. I do
    something in the workshop and I sell some petrol too.
    Q. Who were you selling petrol to.
    A. To anyone but I haven't got the signs at the front, just
    the price on the pump. I pick up tourists drivers, anyone
    stop occasionally. Because when they no see the price they
    no stop, many car. But I can show to you I sell 3,000 or
    4,000 litres over three or four months.
    Q. You sold to whoever wanted petrol.
    A. Everyone, yes.
    Q. And the service station was open for the sale of petrol.
    A. Open all the time. No Sunday, No Saturday afternoon,
    just part-time in the day, Saturday morning. I open all the
    time."

11. It is clear, on the available evidence, that the present premises have limited potential as a viable retail outlet, because of their nature, location and the age and style of the facilities on them. That site has, for some time, been serviced by the Southern Cross wholesale fuel supply organisation.

12. Against such a background, application was made to the Board by Messrs Cirocco and Capogreco, on 22 March 1993, to transfer licence No 837 into the name of a new licensee (the defendant Malaugh Holdings No 2 Pty Ltd) and from the present premises to the proposed premises, on which it was proposed to operate a service station as a Southern Cross outlet. The reason stated in the application for the proposed transfer was that:-
    "Current licence is attached to premises that need a great
    deal of renovations and is situated on a dangerous corner of
    Gorge Road. The proposed premises are much better situated
    and operated as a Shell Service Station until recently."

13. This followed what had proved to be an abortive application, dated 20 January 1993, by the Shell Company of Australia Ltd, to relocate an existing licence, then held by it in relation to premises at Linden Park, to the proposed premises. That application had been objected to by existing service station proprietors in the area and, after a full public hearing on the merits, the Board rejected it, primarily on the basis that the needs of retail customers did not appear to warrant the re-opening of a service station on the proposed site and because, in its view, other existing retail outlets would be adversely affected.

14. The application to transfer licence No 837 came before the Board on 27 May 1993, the evidence tendered on the prior Shell application being utilised for the purposes of it.

15. According to its established practice, the Board apparently gave notice of the application both to the Motor Trades Association of South Australia Inc ("MTA") and other retail outlet owners and operators in the general area within a three kilometre radius of the proposed premises. The present plaintiffs (who fell within the latter category) sought and were granted leave by the Board to participate in the public hearing, in the role of objectors. The MTA was also represented at and participated in that hearing.

16. Evidence was permitted by the Board to be given by two witnesses in the interest of the objectors.

17. On 9 June 1993 the Board published a written decision rejecting the application. Its essential reasoning is encapsulated in the following excerpt from that decision:-
    "The Board found that this particular application did not
    provide an easy decision. On the one hand, we have an
    application to transfer an existing licence over a
    relatively small distance and, putting aside the question of
    the suspension of that licence, and the small volume sold at
    other times, this maintains the status quo within the
    statutory area. This we believe is to be encouraged as a
    preferred option to issuing a new licence and is provided
    for under the Act. However, the other factors which the
Board must consider i.e. Section 30 (a), (b), (d), (e) and
    (f), have not in our view changed since our earlier
    decision. Whilst the proposed premises can be assessed as
    being suitable, and the lack of repair and maintenance
    facilities is not seen as a major drawback, the number of
    premises within the statutory area does in our view cater
    adequately for the demand, both immediate and imminent. We
    have not heard any evidence that:-
    (1) the interests of retail customers will be enhanced by
    the reopening of this former service station
    (2) there is currently any demand for later trading hours,
    and
    (3) with many of existing outlets have capacity for
    increased volume, further competition within the statutory
    area could be considered to be other than unreasonable in
    terms of their legitimate expectations. Again, the
    applicants conceded that, if granted, this application would
    have a significant impact on the volume sold at two (2) of
    the objector's sites.

CONCLUSION Whilst this application is for the transfer of an
    existing licence within the statutory area, the factors
    outlined above and in the decision of 24 March 1993,
    particularly (b), (e) and (f) have influenced the Board not
    to grant the application."

18. Those reasons fall to be understood in the context of section 30 of the Act, the provisions of which are expressed as under:-
    "30. (1) Subject to this Act, where the owner of premises
    to which this section applies makes application for the
    grant of a licence in respect of those premises in the
    manner provided for by this Act, the Board may grant to that
    owner a licence in respect of those premises.
    (1a) Where a person satisfies the Board -
    (a) that he is the prescribed lessee of premises to which
    this section applies;
    and
    (b) the owner of those premises has, after a request being
    made by the person so to do, failed to make application for
    the grant of a licence in respect of those premises, then
    subsection (1) of this section shall apply and have effect
    in all respects as if for the word 'owner' wherever
    occurring in that subsection there was substituted the
    passage 'prescribed lessee'.
    (2) In determining whether or not to grant a licence in
    response to an application under subsection (1) of this
    section the Board shall have regard to -
    (a) the suitability of the premises, proposed to be the
    subject of a licence, to be the subject of a licence;
    (b) the number of premises the subject of a licence within
    the distance of three kilometres of the premises proposed to
    be the subject of the licence;
    (c) the possibility that the premises proposed to be the
    subject of the licence can become the subject of a licence
    by means of a variation of an existing licence;
    (d) the extent to which there will be provided in relation
    to the premises, proposed to be the subject of a licence,
    facilities for the repair and maintenance of motor vehicles;
    (e) the extent to which the interests of retail customers
    for motor fuel will be served;
    (f) the extent to which fair and reasonable competition
    within the industry of retail selling of motor fuel will be
    affected;
    (g) whether or not the applicant himself intends to carry on
    business in the premises proposed to be the subject of a
    licence;
     and
    (h) such other matters as the Board thinks proper or as may
    be prescribed.
    (3) This section applies to premises -
    (a) not being premises referred to in subsection (1) of
    section 28 of this Act in respect of which an application
    for the grant of a licence has been made under section 29 of
    this Act;
    and
    (b) being premises that are proposed will comprise a shop
    the main or principal business of which will be the selling
    of motor fuel by retail to the public generally where that
    business will not be predominately the selling of motor fuel
    in quantities of 200 litres or more."

19. It should be recorded that the relevance of that section stems, in turn, from the provisions of section 36 of the Act, which reads as follows:-
    "36. (1) Upon application by or on behalf of the holder of
    a licence made in the manner provided for by this section,
    the Board may vary that licence -
    (a) by substituting another holder of the licence in place
    of the applicant holder;
    or
    (b) by substituting for the premises to which the licence is
    expressed to relate, other premises.
    (2) In determining whether or not to grant an application -
    (a) relating to substitution referred to in paragraph (a) of
    subsection (1) of this section the Board shall have regard
    to the matter referred to in paragraphs (e) and (f) of
subsection (2) of section 30 of this Act;
    and
    (b) relating to a substitution referred to in paragraph (b)
    of subsection (1) of this section, the Board shall have
    regard to the matters referred to in paragraphs (a), (b),
(d), (e) and (f) of subsection (2) of section 30 of this
    Act, and in either case the Board shall have regard to such
    other matters as the Board thinks proper including, without
    limiting the generality thereof, the prescribed interest of
    any holder thereof, or as may be prescribed.
    (3) An application under this section shall be in the
    prescribed form, contain the prescribed particulars and be
    forwarded to the Secretary to the Board.
    (4) Notwithstanding anything in section 15 of this Act the
    Board may hear and determine ex parte any application
    relating to a substitution referred to in paragraph (a) of
    subsection (1) of this section if in all the circumstances
    it thinks it proper so to do."

20. The holders of licence No 837 were dissatisfied with that decision and, accordingly, pursued an appeal against it to the Tribunal, in accordance with section 22 of the Act. That section expressly stipulates that an order or decision of the Tribunal determining any such appeal is to be final and without appeal.

21. That appeal duly came before the Tribunal, constituted by Rogerson DCJ, on 30 August 1993. The present plaintiffs sought and were granted leave to appear before the Tribunal and adduce both evidence and argument, once again, in the role of objectors.

22. After considering all of the material before him (which included that before the Board) and having inspected both the present premises and the proposed premises, Rogerson DCJ allowed the appeal and granted the application according to its terms. He also made an order suspending the licence for a period of six months, presumably to enable appropriate facilities to be developed on the proposed premises.

23. It is important to note that, in the course of the appeal, the plaintiffs expressly raised, led evidence with regard to and argued various issues which they sought to re-ventilate in the present proceedings.

24. First, they contended that the appeal necessarily failed because, as a matter of fact, licence No 837 had ceased to have effect. There was thus, it was said, nothing capable of transfer in any event. That contention was proffered to the Tribunal in this form:-
"(b) By virtue of the operation of section 34 of the Act,
    licence no. 837 has ceased to have effect and the premises
    situated at 386 Gorge Road, Athelstone, have ceased to be
    the subject of the licence. There is therefore nothing that
    can now be the subject of a variation order and the appeal
    must be dismissed.

Particulars During the year 1992 or, alternatively, during a
    continuous period or periods of one month or more during
    1992 and without the approval of the Board, the business of
    the retail selling of motor fuel was not carried on in the
    premises."

25. Having regard to the provisions of section 34 of the Act, had those particulars been made good, then the contention of the plaintiffs would necessarily have prevailed. After considering all of the relevant evidentiary material (with the aid of his own physical inspection of the present premises) Rogerson DCJ held that this contention failed, because it was not the fact that the business of retail selling of motor fuel had not been carried on in the subject premises for a continuous period of one month or more in the relevant period. He agreed with a similar opinion which had been expressed by the Board when the same point had been debated before it.

26. Secondly, the Tribunal also rejected an alternative argument, on the part of the plaintiffs to the effect that:-
    "(c) In the alternative, in any event, the main or principal
    business conducted on the premises has never been the
    selling of motor fuel by retail to the public generally (and
    therefore inappropriate for a licence) and the Tribunal
    should treat this appeal as though it concerned an
    application for the grant of a new licence for the premises
    at 310 Gorge Road, Athelstone."

27. For reasons expressed by him, Rogerson DCJ held that the evidence simply did not disclose the factual basis contended for.

28. Finally, the plaintiffs re-visited the various issues of merit related to considerations articulated in subsection (2) of section 30, which had earlier been debated before the Board. After reviewing those considerations in light of all of the evidence, the Tribunal dissented from the conclusions of the Board as to the merits and saw fit to allow the appeal, as already recited.

29. On the hearing of the application for judicial review, the defendants both challenged the locus standi of the plaintiffs to bring such proceedings and also joined issue with them as to the questions of law argued on their behalf.

30. In essence it was submitted by Mr Bleby QC, of senior counsel for the plaintiffs, that the Tribunal had lacked jurisdiction because the relevant licence had ceased to operate by virtue of the alleged failure of the licence holders to carry on the business of retail selling of motor fuel in the relevant premises for a continuous period of one month or more, i.e. he sought to argue for the third time that which had successively been rejected by the Board and the Tribunal.

31. He also sought to contend that other errors of law had been committed by the Tribunal which vitiated its decision. In precis terms, it was said that:-
    "10. The Tribunal should have dismissed the application
    because of a breach of condition that the main or principal
    business of the shop had been the selling of motor fuel by
    retail to the public.
    10.1 The premises the subject of the licence comprised the
    whole of the land described in the relevant Certificate of
    Title;
    10.2 The Tribunal misconstrued exhibit A2 which related to
    an extension of an existing area to be occupied by D'Amato,
    and the Tribunal wrongly failed to aggregate the business of
    D'Amato with the selling of petrol during the times that he
    was selling petrol and failed to aggregate all activities
    from the premises at other times;
    10.3 The effect of the breach of Condition (a) in the
    licence was that an offence was committed under section 33
    and there was cause for disciplinary action under section
    48;
    10.4 The Board (and the Tribunal) were required to act in
    accordance with equity and good conscience: section 17(5);
    10.5 Once the true situation was revealed the Tribunal was
    then duty bound to refrain from granting the application and
    should have dismissed it.
    11. In view of the above circumstances, and in the
    alternative, the Tribunal at the very least should have
    treated the licence as if it were a permit and should have
    treated the application before it as if it were an
    application for a new (and therefore additional) licence for
    which different criteria applied."

32. I pause, at this juncture, to comment that, in my opinion, these assertions of supposed additional errors of law simply cannot withstand serious scrutiny.

33. I find it quite impossible to perceive how, in a proper exercise of its function, the Tribunal could have adopted any of the attitudes contended for.

34. It was required to deal with an apparently valid, current licence (leaving to one side, for the moment, the issue of whether that licence had ceased to operate by virtue of section 34 of the Act). Not only did it possess no statutory or other power to deem the licence to be, or deal with it as if it was, a permit (as to which other express provisions of the Act applied and were not relevant to the situation), but it was also not the function of the Tribunal to exercise disciplinary powers concerning alleged breaches of licence conditions. The Act contains a separate disciplinary "code" and vests in the Board both the power and duty of investigating asserted breaches. In any event the Tribunal found that the factual basis of the breach contended for by Mr Bleby QC did not exist, on a basis which, in my view, is manifestly supported by the evidence before it, considered in the context of the inspection of the premises which was conducted.

35. Furthermore, it is equally impossible to envisage how any of the alleged additional errors of law, even if demonstrated to exist, went to the jurisdiction of the Tribunal, or were otherwise of a nature which could possibly support relief of a prerogative type.

36. I return to the issue of locus standi. In the course of my decision in BP Australia Limited v Motor Fuel Licensing Board (1991) 162 LSJS 243 I reviewed, in some detail, the statutory scheme erected by the Act, albeit with particular regard to permits to sell motor fuel. There is no need, for present purposes, to retraverse the same subject matter. I further expanded on some aspects of that scheme in Walsh and Ors v Motor Fuel Licensing Board (1991) 162 LSJS 337 ("Walsh").

37. The latter case also related to the "permit" rather than the "licence" provisions of the Act. However, what was there said concerning the general powers and procedures of the Board is equally pertinent to both.

38. In the latter case I directed attention to the various relevant authorities touching on the issue of locus standi in relation to proceedings before the Board. I see no reason to depart from what I there said. In so saying I do not ignore what was articulated in the dicta extracted by Mr Bleby QC from cases such as Australia Conservation Foundation v The Commonwealth
(1981) 146 CLR 493, Onus v Alcoa of Australia Limited (1980) 149 CLR 27, Ogle v Strickland (1987) 71 ALR 41 and Cameron v Human Rights and Equal Opportunity Commission (1993) 119 ALR 279. Each of these merely serve to illustrate the oft repeated point that questions of locus standi involve issues of fact and degree and require adoption of a flexible and practical approach to the particular context to which they relate. What is appropriate to conservation and social issues may well be quite different to what is appropriate to more discrete situations of the nature of that now under consideration.

39. An important feature for present purposes is the point which I made, in Walsh, in these terms (at 348-349):-
    "Counsel for the plaintiffs sought to contend that, within
    the meaning of section 16 of the Act, the references to 'a
    party to proceedings' or 'any party to proceedings' must
    have been intended to extend beyond the limited concept of
    one or more applicants; and to comprehend persons seeking to
    object and be heard at a public hearing. Such an argument
    is untenable on either of two bases, given the perhaps
    infelicitous drafting of the legislation. In the first
    place a public hearing under the Act is of the nature of an
    inquiry and is not a true inter partes proceeding, save to
    the extent that an inspector has a statutory right to
    participate in the public interest. Rather, the situation
    is akin to that which, in the course of his opinion in
Boulter v The Justices of Kent and Others (1987) AC 556 at
    p.569, Lord Herschell described in these terms:- 'Persons
    objecting to the grant of a licence are not, I think,
    parties to the proceedings on the application in any proper
    sense of the term. The question is not one inter partes at
    all. the justices have an absolute discretion to determine,
    in the interest of the public, whether a licence ought to be
    granted, and every member of the public may object to the
    grant on public grounds, apart from any individual right or
    interest of his own. The applicant seeks a privilege. A
    member of the public who objects merely informs the mind of
    the Court to enable it rightly to exercise its discretion
    whether to grant that privilege or not. A decision that a
    licence should not be granted is a decision that it would
    not be for the public benefit to grant it. It is not a
    decision that the objector has a right to have it refused.
    It is not, properly speaking, a determination in his favour.
    It is, I think, a fallacy to treat the refusal as
    necessarily induced by a particular objector. Every member
    of the local community might object. Would they all then
    become "the other party"? There is, in truth, no lis, no
    controversy inter partes, and no decision in favour of one
    of them and against the other, unless, indeed, the entire
    public are regarded as the other party, for if a licence be
    refused on the ground that it was not needed t supply the
    legitimate wants of the neighbourhood, the decision is
    really in favour of the public at large.'

Whilst that dictum arose under liquor licensing legislation,
    His Lordship's description of the situation is no less
    applicable to that arising under sections 16 and 40 of the
    Act. Secondly, the arguments advanced totally ignore the
    express wording of section 16 itself. That section is
    pre-occupied with the mandatory notice which must be given
    'to any person who is a party to proceedings the subject of
    a hearing before the Board'. Manifestly the 'party'
    elsewhere referred to in the section is any party identified
    in subsection (1) to whom notice must be given. At the
    stage at which notice is given the only persons who,
    manifestly, can possibly be parties to the relevant
    proceedings are the applicant parties themselves. At that
    stage, no notices having been given to anyone, there are no
    other parties involved. It follows then, that there is
    simply no basis whatsoever upon which it can validly be
    asserted that the plaintiffs come before the court ex debito
    justitiae because they are entitled as of right to be or
    become parties to the proceedings before the Board on a
    section 40 hearing. Even if permitted to participate they
    do not ever achieve such a status. It is, of course, not
without significance that section 22 of the Act specifically
    restricts the relevant right of appeal to section 40
    applicants, even to the exclusion of an inspector who may
    have participated. That being so, can it fairly be said
    that the plaintiffs must be regarded as falling within Lord
    Denning's now famous category of 'mere busy bodies'? (The
    Queen v Liverpool Corporation; ex parte Liverpool Taxi Fleet
Operators' Association (1972) 2 QB 299 at 308-9). Or,
    notwithstanding their lack of direct potential status within
    the proceedings, do they otherwise have or may they, as a
    matter of discretion, properly be accorded status to bring
    these proceedings? In my view the mere fact that Turner will
    be in competition with them would, ordinarily, not be
    sufficient to constitute them as persons aggrieved so as to
    entitle them to seek an order of the nature of certiorari,
    given that they had no statutory right either to notice or
    to appear. The authorities to which I have already referred
    negate the validity of such a proposition. Ordinarily, even
    if they had been invited by the Board to attend and
    participate in the public hearing, that alone would not have
    conferred locus standi. (See reasoning in Ettingshausen and
Others v Lal and Others (1981) 1 NSWLR 503 at 508-9.)"

40. The same concept is of no less application to the Tribunal.

41. Under section 22 an appeal to it may only, relevantly, be initiated by an original applicant for transfer, the procedure for hearing any such appeal being as determined by the Tribunal. There is no provision for notification of the appeal to other parties or entitling even an inspector to appear on the hearing of an appeal, notwithstanding the statutory right of an inspector to appear at a Board hearing.

42. It follows that, if the plaintiffs are to achieve locus standi, it can only be by reason of the positive exercise of discretion by this Court, as in Walsh.

43. However, in the final analysis, it seems to me to be unimportant to agonise over whether or not, in this case, that discretion ought to be exercised on a basis similar to that in the lastmentioned case. At the end of the day the question becomes somewhat academic, because, in my opinion, the present application is, on any view, foredoomed to failure.

44. I say that for two reasons. First and foremost, it is trite to say that, like the prerogative pleadings which were the precursor of judicial review, the grant of relief within such a context is discretionary. (See authorities adverted to in Walsh and Wormald Australia Pty Ltd v Industrial Commission of South Australia (1992) 58 SASR 447.) What the plaintiffs are here attempting to do is to litigate, for the third time, that which has been fully agitated twice before and decided adversely to them. Moreover, those adverse decisions have been based upon facts found by specialist tribunals on the footing of evidence placed before them. What is here in contemplation is no more than an ill-disguised attempt to circumvent the privative provisions of subsection (4) of section 22 of the Act. It is an attempt to achieve, by the back door, an entree to this court which is specifically denied by the Act. I would decline to intermeddle on that ground alone.

45. Secondly, the issues in this matter patently fall within the purview of the dictum of King CJ in D M and A J Bell Pty Ltd and Ors v Motor Fuel Licensing Appeal Tribunal and Ors (1988) 50 SASR 39. Those issues do not go directly to the jurisdiction of the Board or the Tribunal, as such. They do not concern the legality of the processes which took place, but merely the correctness of decisions made within jurisdiction. What was in contention was what had happened in fact and whether the proven circumstances had brought about the automatic demise of an otherwise apparently valid and current licence, so that it was incapable of being varied. There was evidence on which both the Board and the Tribunal could arrive at the decisions reached and, to adopt the language of the Chief Justice, "it is no part of the function of this Court to inquire into" the correctness of those decisions.

46. The judicial review process is not concerned with questions of that type. As Mr Hayes QC, of senior counsel for the defendants, quite properly emphasized, the remedy conferred by that process is pitched towards rectifying excesses of jurisdiction, error of law going to jurisdiction or on the face of the record, or a breach of natural justice. None of those features are evident in the case at bar.

47. Finally, in any event, I am quite unable to accept the validity of the propositions advanced by Mr Bleby QC on merit. The Board and Tribunal saw and heard the relevant witnesses and considered their testimony in the light of the other documentary material. Rogerson DCJ inspected the relevant site. There was material before each of those specialist entities upon the basis of which they were entitled to come to the respective conclusions expressed by them, on both the merits aspects and the associated legal issues raised by Mr Bleby QC. There is no compelling reason to conclude that the conclusions arrived at on those matters were incorrect.

48. It follows, in my opinion, that no ground for judicial review has been made out. I would dismiss the plaintiff's application.

JUDGE2 MOHR J I agree.

JUDGE3 NYLAND J I agree.