King v Liquor Administration Board

[2008] NSWSC 1217

CITATION:	King v Liquor Administration Board [2008] NSWSC 1217
HEARING DATE(S):	13 October 1008
JUDGMENT DATE :	20 November 2008
JURISDICTION:	Common Law Division
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) The decision of the Liquor Administration Board of New South Wales made on 5 March 2008 is set aside. (2) This matter is remitted to the Liquor Administration Board to be determined according to law. (3) I make no order as to costs.
CATCHWORDS:	JUDICIAL REVIEW - Liquor Administration Board
LEGISLATION CITED:	Liquor Act 1982 Liquor Act 2007 Liquor Regulation 1996 Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Martin v Kelly [2008] NSWSC 577 Moorebank Sports Club Ltd v Liquor Administration Board [2008] NSWSC 864
PARTIES:	Pauline King (Plaintiff) Liquor Administration Board of NSW (First Defendant) David Bruce Amarti (Second Defendant)
FILE NUMBER(S):	SC 30081/2008
COUNSEL:	J B Costigan (Plaintiff) S Lloyd - Amicus Curiae (Defendants)
SOLICITORS:	Blake Dawson (Plaintiff)
LOWER COURT JURISDICTION:	Liquor Administration Board of NSW
LOWER COURT DATE OF DECISION:	5 March 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSITCE HARRISON

THURSDAY, 20 NOVEMBER 2008

30081/2008 - PAULINE KING v LIQUOR
ADMINISTRATION BOARD OF NSW
JUDGMENT (Judicial review – Liquor Administration
Board)

1 HER HONOUR: This is a claim for prerogative relief arising from a decision not to approve a social impact assessment. By summons filed 25 June 2008, the plaintiff seeks firstly, a declaration that the first defendant’s refusal of the Category B Social Impact Assessment given on or about 5 March 2008 was contrary to the Liquor Act 1982 and the Liquor Regulation 1996 and was in excess of the first defendant’s power to refuse such an approval.

2 The plaintiff is Pauline King. The first defendant is Liquor Administration Board of NSW (the Board). The second defendant is David Bruce Amarti, Chairperson of the Liquor Administration Board of NSW. The Attorney General appeared as amicus curiae and furnished written submissions. The plaintiff essentially agreed with the submissions made by the Attorney General.

Background

3 On 21 October 2005, the plaintiff, an employee of Franklins Pty Limited (Franklins) lodged with the Liquor Administration Board an application for approval of a Category B Social Impact Assessment (SIA application) pursuant to s 62C of the Liquor Act. The SIA application related to a proposed new grant of an off-licence (retail) for a bottle shop at premises to be known as Franklins Liquor and to be located at Westpoint Market Town, Patrick Street, Blacktown (the premises). Section 62C(1) of the Liquor Act 1982 provided that an application for the licence may not be granted until the first defendant had approved the SIA application.

4 The SIA application was prepared by Jo Manion of UrbisJHD, a qualified social researcher with a Bachelor of Arts in Social Sciences. The SIA application was prepared in accordance with generally accepted social impact assessment practices in New South Wales. The SIA application determined that, “the grant of an off-licence (retail) at Franklins Blacktown will not result in a detrimental social impact on the immediate, local or wider community”. On 5 March 2008, the Board in its written decision did not approve the SIA.

Judicial review generally

5 The plaintiff relies upon s 69 of Supreme Court Act 1970. In Martin v Kelly [2008] NSWSC 577 Johnson J at [13]-[24] made some helpful remarks on the confines of judicial review. I respectfully adopt and repeat them here. They are:

“13. The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

14. This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

15. The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

16. The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

Relief in the Nature of Certiorari
17. Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.
18. The face of the record includes the reasons expressed by the LAB for its ultimate determination: s.69(4) Supreme Court Act 1970 .
19. In Craig v South Australia , Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
20. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]:

“Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
21. Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].
22. In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.
23. Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184.”

The Liquor Act

6 On 1 July 2008, the Liquor Act 2007 came into operation. It replaced the Liquor Act 1982. This application, the subject of this judicial review, falls within the earlier 1982 Act.

7 Division 6A of Part 3 of the Liquor Act 1982 set out the requirements for a social impact assessment to be undertaken in certain circumstances. Relevantly, so far as the present proceedings are concerned, the precondition for the grant of an off-licence to sell liquor by retail is that a social impact assessment is provided to the Board in connection with the application for the off-licence and the Board approves the social impact assessment (ss 62B and 62C).

8 Section 62E provides for the applicant to advertise the availability of the social impact assessment for comment. The advertising was carried out and was not in issue before the Board. Subsection 62E(5) provides that in “determining the social impact assessment, the Board must take into account any written submissions made on the matter” within a stated period. The Board also received submissions from the RTA and on behalf on Woolworths Ltd. Information was provided to the Board by the New South Wales police service.

9 Woolworth’s submission focussed on perceived shortcomings in the UrbisJHD report and in particular drew attention to the problems currently being experienced in Alpha Park with underage drinking. It is common ground that Alpha Park is in the immediate vicinity of the Franklins store in Westpoint, as is the Blacktown Local Area Command’s Licensing Unit, which is concerned with the problem of alcohol consumption in Alpha Park. Alpha Park has been declared an “alcohol free zone” by Blacktown City Council. The Police report also drew attention to the links between alcohol consumption and domestic violence in the area. Of the reported and investigated domestic violence offences, alcohol is a factor in at least 50% of the matters, perhaps even higher.

10 The Police report concluded that “The installation of an additional off-licence premises so close to an area known for alcohol consumption and anti-social behaviour does not lend itself to community harmony. Add to this the fact that this Local Area Command already has seventy six (76) liquor outlets trading for most of the day we would consider the inclusion of a further outlet in this location, irresponsible.”

11 Section 62F makes provision for the process of determining a social impact assessment. It may be approved only if two matters are satisfied (s 62F(1)). These matters are preconditions to the exercise of the power but do not compel its exercise.

12 The Minister is empowered to issue written guidelines to the Board in relation to its processes under s 62F (s 62F(3)). The guidelines, notwithstanding their nomenclature, are binding on the Board in the sense that, in exercising its functions in relation to social impact assessments, the Board is subject to the guidelines (s 62F(4)).

13 Section 62F(1) of the Liquor Act 1982 provided:

(1) The Board may approve a social impact assessment that is provided in connection with a relevant application only if the Board is satisfied that:
(a) the social impact assessment complies with this Division and the regulations, and
(b) the overall social impact of the application being granted by the court will not be detrimental to the local community or to the broader community.

14 There was no issue raised before the Board in relation to s 62F(1)(a). It is the operation of s 62F(1)(b) that is the subject of challenge.

The decision of the Liquor Administration Board

15 The Board in its decision dated 5 March 2008 stated:

“The proposal is to place another off-licence retail or packaged liquor facility in the CBD of Blacktown and in WestPoint Market Town in particular. Some mitigation measures are proposed and will have benefits for the local community.
The Board does not assess the application as providing any benefits to the local community other than for the limited benefits which will flow from the mitigation measures. There are already off-licence retail and packaged liquor facilities available to the local community and the broader community and to those resorting to Blacktown CBD and there are already off-licence retail facilities in retail shopping centres and in the centre at which it is proposed to place this off-licence retail.
There are a number of detriments and concerns about the proposal.
Alpha Park is identified as a trouble spot on various submissions and on information lodged and is close enough to the proposed site to be relevant.
There are very high alcohol-related crime rates and crime rates generally. The very high rates of domestic violence are of major concern especially those relating to the ATSI community.
This is the first liquor related SIA assessed by the Board in which substantial concerns about drinking by the local ATSI population have been raised. The Board considers it would be detrimental to put more alcohol, at more competitive prices, into their community. The local ATSI group opposes the application.
The Board agrees that an assessment of density issues on these facts does not require it to have regard only to licensed premises in the CBD and this is because Blacktown is a regional centre. With this assessment concerns about density diminish.
Concerns are raised about accessibility to liquor in the relevant community. Concerns are raised about proximity of the proposed premises to various services and activities.
The Board is not satisfied that the matters raised as detriments and concerns have been answered by the responses given by the applicant. The Board does accept however that the applicant and those representing its interest have fully argued and researched the points raised for consideration.
The negative impacts outweigh the negligible benefits. Accordingly the applicant has not overcome the statutory test.
The Board does not approve the SIA.”

16 In accordance with s 62F(1) of the 1982 Act, the Board was to review and consider the depth of information provided in the SIA application, submissions and information provided by and on behalf of the plaintiff, by the NSW Office of Liquor, Gaming and Racing and other parties. The Act required the Board to determine whether it was satisfied that the overall social impact of the licence being granted would not be detrimental to the local community or to the broader community. Satisfaction of s 62F(1) is a fact finding process to be undertaken by the Board.

The Attorney General’s submissions

17 Submissions were made on behalf of the Attorney General of New South Wales, appearing as Amicus Curiae, that the Board, despite being abolished, continues to have power until 1 January 2009 in relation to any matter that was being dealt with by it but had not been determined by 30 June 2008. It was submitted that the plaintiff’s SIA was a matter that had been dealt with by the Liquor Administration Board, with at least a purported decision made on or about 5 March 2008, and that, prima facie, the Board now has no power in relation to the matter and the plaintiff would be required to make a fresh application to the Authority under the Liquor Act 2007.

18 The Attorney General submitted that even if it was found that the Board did retain some power over the plaintiff’s application such powers would cease after 1 January 2009 and the matter would be dealt with under the Liquor Act 2007. It was further submitted that if the plaintiff established that there had been an error going to jurisdiction by the Board then, notwithstanding that it purported to exercise its jurisdiction, it failed to do so in a manner that had effect at law and the determination of the issue as to whether the plaintiff’s SIA should be approved had been dealt with by the Board but not determined by it, at least not lawfully.

19 The Board finally submitted that if an error of law on the face of the record was established by the plaintiff, the Court would need to be satisfied that the error went to the Board’s jurisdiction before the court could grant relief against the Board.

The plaintiff’s submissions

20 The plaintiff’s submissions are lengthy. They fall into four main areas. They are firstly, whether the Board applied a different test to that in s 62F(1) in that it undertook a process of weighing the negative impacts against the benefits; secondly, whether the Board applied a “needs” test rather than the one set out in s 62F(1); thirdly, whether the Board ignored relevant material and made erroneous findings in relation to the effect of the ATSI community; and finally, whether the Board ignored relevant material and made erroneous findings – benefits and mitigation measures.

(i) Whether the Board applied a different test to that in s 62F(1) in that it undertook a process of weighing the negative impacts against the benefits

21 The plaintiff’s three main submissions concerning s 62F(1) are firstly, that under this section the Board is to review and consider the depth of information provided in the SIA application, submissions and information provided by and on behalf of the plaintiff; secondly, that the Board is required to determine, based on this information, whether it is satisfied that the overall social impact of the licence being granted will not be detrimental to the local or broader communities; and thirdly, that satisfaction of s 62F(1) is a fact-finding process to be undertaken by the Board.

22 The test to be applied must be one where the overall social impact will not be detrimental to the local community or the broader community. In Moorebank Sports Club Ltd v Liquor Administration Board [2008] NSWSC 864, Associate Justice Malpass (at [44]) stated:

“The satisfaction of this threshold requirement involves findings as to the overall economic and social impact of granting the application and that such overall impact will not be detrimental to the “local community”. The statutory requirement does not use the word outweigh and the matter for which it had to be satisfied was not one of benefits outweighing economic and social costs.”

23 The plaintiff submitted that the test pursuant to s 62F(1) required that the Board is satisfied that the plaintiff complied with the statutory requirements and that the overall social impact of the licence being granted would not be detrimental to the local or broader community.

24 The plaintiff submitted that the Board is only required to consider the potential detriments the granting of a licence would have on the local and broader communities and is not required to undertake a discretionary weighing of benefits against negative impacts, as this would impose upon the plaintiff a positive obligation to identify public benefits to overcome perceived detriments.

25 The plaintiff further submitted that the Board’s identification of a number of concerns in its determination were vague as they did not evaluate the extent or basis of such concerns, nor how the concerns may be tempered by the plaintiff’s proposed mitigating measures. The plaintiff says that this application of a weighing test in which to measure as SIA application was against the intention of the Act and constituted a jurisdictional error.

26 The Board has adopted the same approach as it did in Moorebank Sports Club. The Board may approve a social impact assessment only if it is satisfied in terms of s 62F(1)(a) and (b). The Board was satisfied as to s 62F(1)(a), the first pre-condition. It did not determine the second pre-condition. It did not determine whether it was satisfied that the overall impact of the application being granted by the court would not be detrimental to the local community or to the broader community.

27 The Board conducted an inappropriate test in determining the plaintiff’s application by weighing up negative impacts against negligible benefits. This is not the correct statutory test. It is my view that the Board has applied the wrong test and misdirected itself as to the tasks required to be performed. In the circumstances I am satisfied that there has been a jurisdictional error which justifies the disturbing of the decision of the Board.

28 Hence, it is not necessary for this Court to consider whether the Board ignored relevant material and made erroneous findings in relation to the effect of the ATSI community; or whether the Board ignored relevant material and made erroneous findings – benefits and mitigation measures; or whether the Board applied a “needs” test rather than the one set out in s 62F(1).

29 The decision of the Liquor Administration Board of New South Wales made on 5 March 2008 is set aside. This matter is remitted to the Liquor Administration Board to be determined according to law. I make no order as to costs.

The Court orders

(1) The decision of the Liquor Administration Board of New South Wales made on 5 March 2008 is set aside.

(2) This matter is remitted to the Liquor Administration Board to be determined according to law.

(3) I make no order as to costs.
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