La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority
[2014] NSWSC 1798
•17 December 2014
Supreme Court
New South Wales
Medium Neutral Citation: La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2014] NSWSC 1798 Hearing dates: 9 December 2014 Decision date: 17 December 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to UCPR, r 59.10, extend the time to commence the proceedings up to and including 26 November 2013.
(2) Dismiss the further amended summons.
(3) Dissolve the stay ordered by Bellew J on 27 November 2013.
(4) Unless either party makes an application in writing to my Associate within seven days, order the plaintiff to pay the second defendant's costs of the proceedings.
Catchwords: ADMINISTRATIVE LAW - challenge to the decision of The Independent Liquor and Gaming Authority to reduce trading hours of the plaintiff's premises from 3am to midnight on Sunday nights - no error shown in reasons - correct test applied - allegations of actual and apprehended bias arising from contact between Authority and Police and public statements made by Chair of Authority - no actual or apprehended bias - Authority was open to persuasion - relevance of decision made by group - members of Authority entitled to form preliminary views about applications based on experience - judicial decision-making not the relevant paradigm
STATUTORY INTERPRETATION - whether "public interest" to be taken into account - importance of objects clause - meaning of "independent" in connection with Authority - whether requirements in s 49(8) of Liquor Act should be read into the Authority's power to vary of its own initiative in s 51(9)(b) - clear statutory wording required to bring about that result
CIVIL PROCEDURE - extension of time granted - reasonable for plaintiff to await forthcoming reasons before formulating the grounds in the summonsLegislation Cited: Gaming and Liquor Administration Act 2007 (NSW), ss 6, 7, 9
Liquor Act 1982 (NSW)
Liquor Act 2007 (NSW), ss 3, 4, 11, 11A, 12, 24, 25, 42, 43, 48, 49, 51, 53, 94, 143, Sch 1
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10Cases Cited: Attorney-General for the State of New South Wales v Quin [1990] HCA 21; 170 CLR 1
Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280
Foster v Minister for Customs [2000] HCA 38; 200 CLR 442
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; 14 ALD 291
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531
Lafu v Minister for Immigration [2009] FCAFC 140; 112 ALD 1
Magee v Booroondara City Council [2011] VSC 78; 182 LGERA 227
McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504
McMillan v Director-General of Communities NSW [2009] NSWSC 1236
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138
Minister for Immigration v SZJSS [2010] HCA 48; 243 CLR 164
Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
Minister for Planning v Walker [2008] NSWCA 224; 161 LGER 423
Re Refugee Tribunal; Ex Parte H [2001] HCA 28; 75 ALJR 982
O'Hara v Independent Liquor & Gaming Authority [2014] NSWSC 880
Zentai v O'Connor (No. 3) [2010] FCA 691; 187 FCR 495Category: Principal judgment Parties: La La Land Byron Bay Pty Ltd (Plaintiff)
The Independent Liquor and Gaming Authority (First Defendant)
The Commissioner of NSW Police (Second Defendant)Representation: Counsel:
MA Robinson SC/ A Poljak (Plaintiff)
J Hutton (Second Defendant)
Solicitors:
Hatzis Cusack Lawyers (Plaintiff)
IV Knight, Crown Solicitor (Second Defendant)
File Number(s): 2013/357278 Publication restriction: Nil
Judgment
Introduction
By further amended summons filed in Court on 9 December 2014, La La Land Byron Bay Pty Limited applied for relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of a decision made by the Independent Liquor and Gaming Authority (the Authority), the first defendant, to vary the extended trading hours (the Decision) of premises in Byron Bay of which the plaintiff is licensee (the Premises). The second defendant is the Commissioner of NSW Police (the Commissioner), who has standing to seek a variation of trading hours.
The Authority has filed a submitting appearance. The Commissioner, for whom Mr Hutton appears, is the plaintiff's only active contradictor.
In order to address the challenges to the Decision, it is necessary to set out the statutory scheme as well as the factual background to the Decision. Because the facts relied upon in support of the allegation of bias are discrete, they are set out separately when that ground is addressed.
The statutory scheme
Gaming and Liquor Administration Act 2007 (NSW)
The Authority is constituted under the Gaming and Liquor Administration Act 2007 (NSW) (the GLA Act). It is not subject to the direction or control of the Minister except as specifically provided for: s 6(3) of the GLA Act. At least one of its members must be a current or former judge or have been an Australian lawyer for at least seven years: s 7(2) of the GLA Act.
Although the Authority may not employ any staff, it may arrange for police officers to perform services for it: s 9(3) of the GLA Act. It may also make arrangements with the Commissioner for the provision of police records to it: s 11 of the GLA Act. The Authority has such functions as are conferred or imposed on it by other legislation: s 9(1) of the GLA Act, including the Liquor Act 2007 (NSW) (the Act).
Liquor Act 2007 (NSW)
Section 3 of the Act provides as follows:
(1) The objects of this Act are as follows:
(a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community,
(b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality,
(c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries.
(2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following:
(a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour),
(b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor,
(c) the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life.
Section 11(1)(b) of the Act contemplates that conditions on licences may be imposed by the Act itself.
Section 11A of the Act, which relevantly applies to licences granted after 30 October 2008, provides in part:
(2) A licence to which this section applies is subject to the condition that liquor must not be sold by retail on the licensed premises for a continuous period of 6 hours (as determined in accordance with this section) during each consecutive period of 24 hours (the 6-hour closure period).
The definition in s 12 of the Act of "standard trading period", 10am to 10pm on Sundays and 5am to midnight for the rest of the week, applies to the Premises.
Part 3 of the Act provides for various types of licences. The Hotel has an "on premises licence", for which s 24 makes provision, relevantly in the following terms:
(1) An on-premises licence authorises the sale or supply of liquor only if the liquor is sold or supplied for consumption on the licensed premises with, or ancillary to, another product or service that is sold, supplied or provided to people on the licensed premises.
Section 25(1) of the Act provides that an on-premises licence authorises the licensee to sell liquor by retail on the licensed premises for consumption on the premises only. Section 25(2) provides:
The times when liquor may be sold for consumption on the licensed premises are during the standard trading period or at such other times as may be authorised by an extended trading authorisation.
Part 4 makes provision for licencing procedures. The Authority has a range of functions, including the power to conduct investigations (s 42), and powers to obtain relevant information (s 43), some of which may be exercised on its own initiative (see, for example, ss 51(9)(b), s 53(1)(b), 53(2)(b) and 94(2)).
Section 48 relevantly requires certain applications to be accompanied by a community impact statement, which must be prepared in accordance with the regulations and be in an approved form. One such application to which s 48 applies is an application for an extended trading authorisation (ETA) in relation to an on-premises licence, but only if the ETA will result in trading at any time between midnight and 5am: s 48(2)(d). Section 48(1) provides that the object of the section is to facilitate the consideration by the Authority of the impact of granting certain licences, approvals and authorisations on the local community.
Section 48(5) provides:
The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to:
(a) the community impact statement provided with the application, and
(b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions),
that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community.
The Authority has power under s 49 of the Act to authorise the sale or supply of liquor for consumption outside the standard trading periods for certain licences, including an on-premises licence: s 49(1)(c) of the Act. On application from the licensee, the Authority may extend the period for a specified period between midnight and 5am on any day of the week: s 49(2)(b) of the Act. Such authorisations outside the standard trading periods are termed "ETAs": s 4 of the Act. Such applications must be accompanied by a community impact statement in accordance with s 48. ETA's operate to authorise sale and distribution of liquor either on a regular basis or on a special occasion until the ETA is varied or revoked by the Authority: s 49(5).
Section 49(8) applies to the Authority's power to grant an ETA. It provides:
The Authority must not grant an extended trading authorisation in respect of licensed premises unless the Authority is satisfied that:
(a) practices are in place, and will remain in place, at the licensed premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and
(b) the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises.
It can therefore be seen that the scheme of the Act is that standard trading hours apply unless the Authority exercises its discretion in favour of a licensee. The discretion is available only if the Authority is satisfied of the matters set out in s 49(8) of the Act.
Section 51 makes general provision for licence-related authorisations. For example, it provides that the Authority has the same power in relation to an application for such an authorisation as it does with respect to an application for a licence: s 51(3) of the Act. Section 51(9) provides:
(9) An authorisation:
(a) is subject to such conditions:
(i) as are imposed by the Authority (whether at the time the authorisation is granted or at a later time), or
(ii) as are imposed by or under this Act or as are prescribed by the regulations, and
(b) may be varied or revoked by the Authority on the Authority's own initiative or on application by the licensee, the Secretary or the Commissioner of Police.
Procedural fairness is expressly provided for in s 51(13) in the following terms:
(13) The Authority must not impose a condition on an authorisation, or revoke or vary an authorisation, other than a variation made on application by a licensee, unless the Authority has:
(a) given the licensee to whom the authorisation relates a reasonable opportunity to make submissions in relation to the proposed decision, and
(b) taken any such submissions into consideration before making the decision.
Section 53 of the Act provides that the Authority may impose, vary or revoke licence conditions. The Commissioner has express standing under s 53(1) to apply to the Authority for the imposition of conditions on a licence. Such conditions may include conditions limiting the sale or supply of liquor before 10am or after 11pm or restricting the trading hours of, and public access to, the premises: s 53(1A) of the Act.
Part 9 of the Act makes provision for disciplinary action to be taken by the Authority. Section 143 requires the member of the Authority who is a judge or who has practised as a lawyer for at least seven years to be present at the meeting at which the complaint is determined or the decision to take the disciplinary action is made. This is to be contrasted with s 51, which has no such requirement. Accordingly when the Authority decides to vary an ETA, it is not necessary that any particular member be present.
Facts relating to the grant of the ETA to the plaintiff and the variation of the ETA
The plaintiff operates the La La Land business at 6 Lawson Street, Byron Bay. Prior to 1 July 2008 the Premises had an on-licence, granted under the Liquor Act 1982 (NSW), the predecessor to the Act. On 1 July 2008 the on-licence was converted by the Act into an on premises licence: Schedule 1, Part 2, Division 1 of the Act.
On 7 October 2008 the plaintiff applied for an ETA in respect of the Premises to extend the standard trading period on Sunday nights from midnight to 3am. The Premises were already licensed to trade on other nights until 3am. The Authority, by its delegate, approved the application, notwithstanding the Commissioner's objection. The plaintiff was notified by letter dated 9 April 2009.
On 26 November 2012, the Commissioner lodged an application with the Authority pursuant to s 53 of the Act for a change in the plaintiff's licence condition to have the Sunday trading hours end at midnight rather than 3am. The Authority forwarded the Commissioner's application to the plaintiff under cover of letter dated 14 December 2012. The plaintiff responded by letter dated 1 February 2013.
On 26 March 2013 the Authority sought further information from the Tweed/ Byron Local Area Command (LAC) of the NSW Police Force (the Police). Senior Constable Grant Seddon, the Licensing Co-ordinator of the Tweed/ Byron LAC, responded with further information on 5 April 2013.
On 26 March 2013 the Authority also sought information from the Office of Liquor Gaming & Racing (OLGR), including compliance records that relate to the two current on-premises licences for the Premises: LIQO624013505 and LIQO600491022. On 10 April 2013, OLGR Compliance provided the records for the licence LIQO624013505 and noted that there were no records that related to the other licence.
The Authority also consulted the Byron Shire Council (the Council), which provided a letter in response dated 26 March 2013.
On 26 March 2013 the Authority advised the plaintiff and other interested persons that it was contemplating varying the ETA, by reducing the trading hours to midnight on Sunday, on its own initiative.
The Authority forwarded to the plaintiff for its response the material provided by the Police, OLGL Compliance and the Council. The plaintiff responded by letter dated 29 April 2013. Among the matters addressed in the letter, the plaintiff explained that the second licence (LIQO600491022) was dormant and had not been activated. The plaintiff identified LIQO624013505 as "the only relevant licence being exercised".
On 29 April 2013 the Authority forwarded this correspondence to the Police and the OLGR for their comments regarding the second licence recorded against the Premises. The Police made a further submission dated 3 May 2013, which was forwarded to the plaintiff's solicitors on the same day for the plaintiff's comment.
By letter dated 9 May 2013, the plaintiff's solicitors sought clarification from the Authority that it would not take into account such of the material provided by the Police that related to nights other than Sunday nights. On 13 May 2013 the Authority responded to the plaintiff's solicitors by email in the following terms:
"Dear Tony
I refer to your letter dated 9 May 2013.
I have had a quick look at the Police material dated 5 April 2013. I note that nearly all of the further COPS Reports provided by Police on that date concern incidents relating to late hours other than Sunday night/Monday morning late trading hours.
The Police submission of 3 May 2013 indicates that Police have apparently provided material pertaining to other evenings in order to make the general point that issues with late trading at the Premises are not confined to Sunday night/Monday morning. The submission of 3 May raises another issue regarding security patrols at the Premises.
All of the material in the submissions will be before the Authority when it considers this matter. However, as you may expect, events arising from Sunday evening/Monday morning will be the focus of the Authority's assessment of whether it is in the public interest to vary the Sunday trading hours. Those matters are most relevant to that question.
Submissions or evidence of a more general or less direct nature made by Police will be considered, and it is a matter for you whether you wish to address them. The weight that those incidents should be given will be a matter for the Authority.
To avoid doubt, the Authority will, when considering the context of this matter, have before it all the usual BOCSAR [NSW Bureau of Crime Statistics and Research] data for the LGA [Local Government Area] - the latest Crime by LGA Report, the accompanying crime maps for the LGA and the latest Crime by LGA and Alcohol Related Status Report.
It will also have before it licensing records data (the Index of licensed premises that is available for purchase from OLGR) showing the number, type and location of all licensed premises in Byron Bay LGA.
As I understand the licensee's submissions, La La Land is the only licensed premises of any kind open in the town of Byron Bay after midnight on a Sunday (Please correct me if I am wrong)?
I should also disclose that, (given the role that PCA offences have played in the Police submissions) the Authority is aware of the attached presentation given to it by RMS on drink driving in the Byron LGA. This presentation was made to the Authority last year in a public meeting convened on 4 September 2012 regarding the proposed Dan Murphy's outlet in Byron Bay.
If the Licensee requires any further time in light of this advice please make any final submissions by 4 pm on this Friday 17 May 2013?
That will conclude submissions."
By letter dated 17 May 2013 the plaintiff's solicitors separately responded to the further material provided by the Police on 3 May 2013 and to the email of 13 May 2013.
On 1 July 2013 the Authority varied the ETA that attached to the plaintiff's licence such that the plaintiff was permitted to trade only until midnight on Sunday nights (the Decision). By email dated 2 July 2013, the Authority communicated its decision to the plaintiff in the following terms:
"Yesterday afternoon the Authority completed its consideration of a Police request that the Authority vary the extended trading authorisation that attaches to the liquor licence of the above premises (Premises).
The Authority has decided under section 51(9)(b) of the Liquor Act 2007 to vary the authorisation, so that the Premises is now licensed to trade until midnight on Sunday evenings instead of 3 am on Monday mornings.
The late trading hours for all other days of the week are unchanged.
This decision will take effect from today. A letter with reasons with (sic) follow in the next 2-3 weeks."
The Authority was constituted by the following members at the time it made the Decision:
(a)David Armati, Local Court Magistrate between 1984 and 2001, and Chairperson, Licensing Court of NSW and Liquor Administration Board, 1991-2008;
(b)Ken Brown, from 1982, Director General of the Department of Leisure, Sport and Tourism, and from 1985, on its establishment, Director General of the Department of Sport, Recreation and Racing. From 1995 until 2006, he was Director General of the Department of Gaming and Racing and Director of Liquor and Gaming;
(c)Christopher Sidoti, Chairperson, Independent Liquor and Gaming Authority since 2008;
(d)Sharryn Brownlee;
(e)David Greenhouse, Chief Executive Officer.
The unchallenged evidence of Ms Waring, the Manager of the Authority, was that the usual practice of the Authority is to make decisions by consensus. There is no indication in the Reasons that the Authority departed from its usual practice at its meeting on 1 July 2013.
On 28 August 2013 the plaintiff asked the Authority to provide reasons for the Decision.
Before reasons were forthcoming, the plaintiff, by summons filed on 27 November 2013, sought an urgent injunction to stay the Decision. On 27 November 2013 Bellew J granted a stay of the Decision until further order of the Court.
The Reasons
By letter dated 4 December 2013 the Authority set out its reasons for the Decision (the Reasons). The Reasons form part of the record for the purposes of this Court's jurisdiction under s 69(3): s 69(4) of the Supreme Court Act.
What follows is a summary of the Reasons. I shall, however, refer to particular paragraphs later in these reasons where relevant to a ground of challenge.
Paragraphs [1]-[7] set out the way in which the Authority came to consider exercising the s 51(9)(b) discretion. Paragraphs [8]-[17] set out background matters, including the Authority's understanding of the test to be applied (at [16]). Paragraphs [18]-[77] summarise the various submissions made, including by the Police, the plaintiff and the owner of the Premises. Paragraphs [78]-[118] set out the Authority's reasons. Its conclusions were summarised in paragraphs [108]-[118].
The Reasons noted that in November 2012 the Authority received an application from Police under s 53 of the Act. However, the Authority correctly appreciated that s 53 was not the appropriate statutory provision under which to proceed ([1]-[15] of the Reasons). On 26 March 2013 it notified the relevant parties (including the Police) that in light of the Police submission it was contemplating exercising the power in s 51(9)(b) to vary the Premises' ETA "of its own initiative" ([4] of the Reasons).
The Reasons disclosed that the Authority was persuaded that the public interest favoured varying the ETA because it found on the balance of probabilities that there was a causal connection between numerous incidents of alcohol related disturbances and anti-social or violent conduct recorded in COPS reports from 8 April 2009 and the exercise of the ETA during those hours: reasons at [79]-[84], [89]. The Authority noted that most of the incidents occurred in neighbouring streets away from the Premises or on the roads of Byron Bay rather than on the Premises (at [89], [93], [113], [115], [117]). The Authority was also satisfied that there was a "moderate problem with violence occurring on the Premises" ([92]). The principal finding on which the Authority's decision rested was the nexus between the anti-social disturbances recorded in the COPS [Computerised Operational Policing System] reports (which it was satisfied actually occurred) and the extended trading of the Premises between midnight and 3am on Monday mornings.
An amended summons was filed on 23 December 2013 and a further amended summons was filed on 9 December 2014, being the first day of the hearing.
The plaintiff's challenges to the Decision
In substance the plaintiff challenges the Decision on the following bases:
(1) The Authority failed to take into account and/or apply the various tests contained in s 3 of the Act.
(2) When purporting to exercise its power pursuant to s 51(9)(b) of the Act the Authority failed to consider application of s 49(8) of the Act and whether or not there was frequent undue disturbance to the neighbourhood in the relevant period;
(3) The Authority wrongly asked itself whether s 49(8) of the Act "confines" its power under s 51(9)(b) instead of asking itself whether the said section should be used as an aid or factor in exercising its power under s 51(9)(b);
(4) The Authority failed to identify what it meant by the "public interest". In that regard, it failed to ask itself the correct question as to its power or it put a gloss on its power;
(5) In dealing with alleged incidents or events submitted to it by the Police, the Authority failed to make necessary findings to effect that the premises in fact constituted a material cause of the particular alleged socially offensive behaviour or the harm to be minimised;
(6) The Authority failed to take into account mandatory relevant considerations when making the Decision;
(7) The Authority failed to take into account relevant considerations the authority was required to take into account in making the Decision;
(8) The Authority failed to afford proper, genuine and realistic consideration to relevant factors it was required to so consider;
(9) The Authority failed to afford procedural fairness or natural justice to the plaintiff in that it acted with actual bias in arriving at the Decision; or alternatively, it acted with apprehended bias in arriving at the Decision.
The plaintiff contended that these errors were either errors of law on the face of the record (which can be corrected by this Court pursuant to s 69 of the Supreme Court Act) or jurisdictional errors in respect of which this Court has a constitutionally entrenched supervisory jurisdiction: Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531.
Grounds 1 - 8: the legal test and the factors to be taken into account
As these grounds overlap to some extent, as indicated by the plaintiff's submissions in support of them, I propose to address them together.
The plaintiff's submissions
The plaintiff contended that the Authority failed to have regard to the objects of the Act in s 3, and, in particular, the object of facilitating the development of the liquor industry and related industries in line with the community's expectations, needs and aspirations. I note that this formulation appears to be a hybrid of the objects in s 3(1) and does not incorporate all the words in the subparagraphs of the subsection, which is set out in full above.
The plaintiff submitted that the Authority gave "excessive" weight to the object of harm minimisation and to the "public interest test". Moreover, the plaintiff contended that, as the Authority recorded in its Reasons, the events relied upon by the Police principally occurred in the local area, rather than on the Premises. In support of its submission the plaintiff referred to the following paragraphs from the Reasons, passages of which it emphasised as indicated:
"[108] While the focus of this decision has been the individual COPS Events that have been found to be linked to the exercise of the extended trading hours on Monday morning, the BOCSAR crime and mapping data and the RMS Data for the Byron LGA and the town of Byron CBD which has been provided to the authority underscore the challenging alcohol related crime and drink driving environment in which the Premises operates, particularly on weekend.
[115] As demonstrated by the COPS Events that have been found to be relevant and applicable by the authority, a late trading licensed business has the enhanced capacity to generate or attract patrons who engage in alcohol related violence, disorderly conduct or other serious anti - social conduct in Byron Bay, such as drink driving.
[118] In making this decision the authority has...given weight to section 3(2) of the Act, the need to minimise harm associated with the misuse and abuse of liquor (including harm arising from violence and anti-social behaviour), and section 3(2) of the act, the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of the community."
The plaintiff noted that the Authority accepted that the community supported the Premises, which offered a place for people, including hospitality staff (for whom Sunday night is equivalent to Friday night for other workers) and visitors, to congregate to listen to local bands and disc jockeys. Nonetheless the plaintiff contended that the Authority did not adequately consider this matter, or sufficiently take into account the object in s 3(1)(c) of the Act.
The plaintiff accepted that public interest is "plainly a relevant consideration" but contended that it is not the only consideration to which the Authority ought have regard.
Mr Robinson SC, who appeared with Ms Poljak for the plaintiff, relied on the following extract in [16] of the Reasons in support of his contention that the Authority "went off the rails" by not appreciating that the only reference to the "public interest" appears in s 3(1)(b) of the objects:
"[t]he test is whether the proposed [variation] is in the public interest informed by the statutory objects and considerations prescribed by s 3 of the Act."
Mr Robinson contended that there was no basis in law or fact for the test postulated in that passage and elsewhere in the Decision in the paragraphs identified in the further amended summons. Furthermore he submitted that the formulation of words in that passage is:
"simply an incantation that permits them to perhaps do anything they want".
The plaintiff argued that the Authority, in making the Decision, was obliged, but failed, to consider s 49(8) of the Act and whether or not there was frequent undue disturbance to the neighbourhood in the relevant period. It contended that the Authority was in error when it considered whether its power under s 51(9)(b) of the Act was "confined" by s 49(8). The plaintiff submitted that the correct question was whether the section ought be used as an aid or factor in considering whether to vary the ETA under s 51(9)(b) of the Act. The plaintiff contended further that the Authority had failed to find to its necessary satisfaction that the grant of the ETA had given rise to "frequent undue disturbance" to the neighbourhood within the meaning of s 49(8) of the Act.
Mr Robinson submitted that because the Authority was required to be satisfied of the matters in s 49(8) of the Act before granting an ETA, it was "logical and necessary" that the Authority take such matters into account when varying an ETA.
Mr Robinson also submitted that the Authority failed to take into account identified factual matters which he contended were "relevant considerations" and that it had failed to afford proper, genuine and realistic consideration to other identified matters of fact. He relied on Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 in support of the first contention and Minister for Immigration v SZJSS [2010] HCA 48; 243 CLR 164 at [29]; Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; 14 ALD 291 (Gummow J) and Zentai v O'Connor (No. 3) [2010] FCA 691; 187 FCR 495 at [396] per McKerracher J in support of the second.
Mr Robinson contended further that, although the Authority referred to these matters in its Reasons, it did not "actively engage" with them in such a way as to connect them with the conclusion reached. The plaintiff relied on Lafu v Minister for Immigration [2009] FCAFC 140; 112 ALD 1 at [49] and [54] in which the Full Federal Court (Lindgren, Rares and Foster JJ) set aside a visa cancellation on the basis that the Administrative Appeals Tribunal (AAT) had not "actively engaged" with the factor of general deterrence which it was obliged to take into account, although it had referred to it.
As I have largely accepted the Authority's submissions on grounds 1-8, I do not propose to set them out separately.
Reasons with respect to grounds 1-8
Before addressing the particular grounds, I propose to make some general observations about the Reasons. First, the Authority has no obligation to give reasons for its decisions. In these circumstances, I consider that the concept of "sufficiency of reasons" which is apposite where reasons are required, does not apply. The Authority chose, however, to give reasons for its Decision in the present case in response to the plaintiff's request. The way in which the Authority intended its Reasons to be read appears from [7] of the Reasons:
"The Authority's decision was notified to the parties in a short email from the Authority's General Counsel dated 2 July 2013. Liquor applications comprise a high volume aspect of the Authority's jurisdiction and, no doubt for this reason, the Act does not require the Authority to provide reasons for its decisions. However, the Authority has indicated in Authority guideline No 7 that it will consider providing reasons, on a case by case basis, subject to available resources. On this occasion, without purporting to repeat all of the arguments and contentions made among all of the submissions that were before the Authority at the time of its decision, this letter provides a summary of the reasons for the Authority's decision."
The effect of s 69(4) of the Supreme Court Act is that the reasons form part of the record. Therefore if they reveal error, there is an error on the face of the record and this Court's jurisdiction to grant relief under s 69 of the Supreme Court Act is enlivened. However, the Reasons ought be read fairly as a whole. Allowance ought be made not only for the fact that the Decision is a collegiate one, but also for the fact that they are expressed to be a summary.
I do not accept the plaintiff's argument that the Authority misstated the law when it expressed the "test" in the passage cited above from [16] of the Reasons. In my view the words selected by the Authority to express the applicable law do not reveal error. It may generally be accepted that a decision-maker who is required to make a decision under a statute is bound to take into account the public interest. However the definition of what the public interest entails in a particular case is a matter for the decision maker, unless the statute makes express or implicit provision otherwise. As Hodgson JA said Minister for Planning v Walker [2008] NSWCA 224; 161 LGER 423 at [39], Campbell and Bell JJ agreeing:
"In my opinion, it is a condition of validity that the Minister consider the public interest. Although that requirement is not explicitly stated in the EPA Act, it is so central to the task of a Minister fulfilling functions under a statute like the EPA Act that, in my opinion, it goes without saying. Any attempt to exercise powers in which a Minister did not have regard to the public interest could not, in my opinion, be a bona fide attempt to exercise his or her powers, and so would not even pass the Hickman test."
In so far as the plaintiff submitted that the Act confined the consideration of the "public interest" to the object in s 3(1)(b) of the Act, I reject the submission.
The statutory words that confer the relevant discretion determine whether a decision maker is required to take into account a particular matter: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. The statute may do so in express terms or by necessary implication. The objects of the Act, while relevant considerations, are not generally, without more, required to be taken into account: Minister for Planning v Walker at [55]. However, the wording of s 3(2) of the Act requires the Authority to "have due regard to" the matters in s 3(2)(a), (b) and (c) in order to secure the objects of the Act. These words, in my view, evince a statutory intention to require the Authority to take at least those matters in s 3(2) into account with respect to the decision to vary an ETA. Having regard to the stated connection between the objects in s 3(1) and the matters to which due regard must be had in s 3(2), I consider that the Authority is also obliged to take into account the matters in s 3(1).
I do not, however, regard the passage set out above from the Reasons in which the Authority expressed itself in terms of the "test" to be applied as saying (or meaning) other than that the objects in s 3 are required to be taken into account when deciding whether the vary the ETA. This is correct as a matter of law. I do not accept Mr Robinson's submission that these words amounted to no more than an "incantation".
In [14] of its Reasons the Authority said:
"Section 51 does not specify any statutory criteria or test that structures the Authority's exercise of its power to vary or revoke an authorisation, although it is apparent that the Authority may receive guidance from, amongst other things, the statutory objects prescribed by s 3(1) of the Act and must have regard to the statutory considerations prescribed by s 3(2) of the Act."
Paragraph [14] is expressed slightly differently from [16]. However, it shows, in my view, that, if there is any ambiguity in [16], the Authority correctly appreciated the breadth of its discretion in s 51 as well as the matters to which it was obliged to have regard in s 3.
The Authority, having stated the law correctly, ought be taken to have applied it: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138 at [204] per Basten JA.
In any event, I consider that the Reasons, read as a whole, show that the Authority did take into account the objects in s 3. The Reasons contain several references to the objects (see for example [14]-[16], [44], [46] and [118]) and to the evidence germane to them. There is an obvious tension between the objects. However, it is a matter for the Authority to give such weight to each of them as it thinks fit, in light of the evidence.
In [118] of its reasons the Authority said:
In making this decision the Authority has had regard to all of the objects and statutory considerations prescribed by section 3 of the Act, and has given weight to section 3(2)(a) of the Act, the need to minimise harm associated with the misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), and section 3(2) of the Act, the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of the community.
Although s 49(8) of the Act restricts the Authority's power to grant an ETA by requiring that it be satisfied of the matters in (a) and (b), it does not, in my view, follow that the Authority may not vary an ETA (by reducing or revoking the ETA) unless it is satisfied of the contrary of (a) or (b). Express words would be required to achieve such a result. Section 51 contains no such express words. To the extent to which the plaintiff submitted that (a) and (b) from s 49(8) are imported into s 51, I reject the submission.
The plaintiff also contended that the matters in s 49(8), though not a constraint on the exercise of power under s 51, were nonetheless relevant factors. So much may be accepted. But it does not follow that the Authority, whose reasons reveal that the community impact was taken into account, was in error in deciding that, notwithstanding that it was the Police rather than the rest of the community which constituted the main, if not the sole, proponent of the variation to the ETA, the ETA ought nonetheless be varied. Indeed, I consider that, to the extent to which the Authority was bound to take into account the community impact of the ETA, it did so, as is revealed by [93] of the Reasons, which read as follows:
"The Authority is satisfied that Police have demonstrated a real and persistent problem with patrons of the venue "externalising" alcohol related anti-social conduct upon the local community, particularly the neighbourhood of the Byron Bay CBD. Patrons of the Premises are frequently engaging in alcohol related disturbance and other anti-social conduct, to an extent that requires Police intervention, on Monday mornings during and immediately after the extended trading period. This misconduct is occurring outside and near the entry point to the Premises or, frequently, in nearby streets within the Byron Bay CBD."
In Lafu v Minister for Immigration the AAT, which had a statutory obligation to give reasons, had not explained how its findings of fact were germane to the issue of general deterrence. I do not consider that any such failure has been established in the instant case. It is important that the allegation that a decision-maker has not given proper, genuine or realistic consideration to various matters, not lead a court, which is exercising either jurisdiction under s 69 of the Supreme Court Act or the inherent jurisdiction to correct jurisdictional error, to identify and remedy jurisdictional error into merits review. Merits review is no part of this Court's function in applications such as the present: see Attorney-Generalfor the State of New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 37-38.
I do not accept Mr Robinson's submission that the Authority failed to take into account identified factual matters which he contended were "relevant considerations" and that it had failed to afford proper, genuine and realistic consideration to other identified matters of fact. The plaintiff did not attempt to explain why these matters were required to be taken into account, as a matter of statutory construction, in order to make a valid decision. Indeed, the level of particularity at which these matters were pitched tends to militate against a requirement that they be taken into account as a condition of validity: Foster v Minister for Customs [2000] HCA 38; 200 CLR 442 per Gleeson CJ and McHugh J; Minister for Planning v Walker at [35] per Hodgson JA.
Conclusion
In Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; 185 CLR 259, the plurality of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) referred at [30] to Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 and the oft-cited statement at 287:
"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".
The plurality continued at [31]:
"These propositions are well settled. They recognise the reality that 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."
In my view, the scrutiny to which the plaintiff has subjected the Reasons is of the variety to which the plurality made reference. I consider that when the Reasons are read fairly and as a whole, they reveal that the Authority correctly identified the relevant law and actively considered the material before it to decide whether to vary the ETA. The Reasons are replete with references to the factual matters which the Authority took into account in reducing the Sunday trading hours.
In my view, the Reasons contain a detailed consideration of the material before the Authority and how it was relevant, having regard to the objects of the Act. None of grounds 1 - 8 has been made out.
Ground 9: alleged actual or apprehended bias
The plaintiff's submissions
The plaintiff submitted that the cumulative effect of the facts set out below was such as to establish actual bias, or in the alternative, apprehended bias by the Authority in making the Decision:
a.The Authority met with officers of the second defendant on about 4 December 2012, shortly prior to the second defendant lodging the application for variation of the plaintiff's ETA. In the course of the meeting the parties impermissibly discussed the plaintiff's business operations and the extended trading hours in the absence of the plaintiff.
b.Before the Decision was made, Mr Sidoti, made public speeches about how the Authority would not grant licence applications for extended trading hours and that the Authority disapproved of all existing licences which permitted liquor trading after midnight.
c.In the course of such speeches Mr Sidoti said that on extended trading applications, the Authority was very reluctant to grant extensions and it would refuse any argument based on competitor's disadvantage. He also said that the Authority was very reluctant to grant extended trading hours at all, and especially after 2am, when the community was already over-exposed to alcohol related violence or disturbance.
d.The Authority did not determine the Commissioner's application for variation of the plaintiff's ETA under s 53 of the Act but rather dealt with it on its own motion pursuant to s 51(9)(b) of the Act.
e.The Authority determined that certain events in fact occurred. However, it also determined that it would have come to the same determination adverse to the plaintiff if those events had not occurred.
In support of b. and c. above the plaintiff relied on various passages of the speech given by Mr Sidoti on 21 March 2013 and a seminar paper published in March 2013 which it submitted indicated a "fixed and blinkered view of the Authority" and how it should be administering the Act. The plaintiff contended that Mr Sidoti was speaking on behalf of the Authority and not in his personal capacity and that it was of significance that the Authority had not yet decided the fate of the plaintiff's ETA when these statements were made.
Facts relevant to ground 9
The plaintiff's application made in about November 2010 for a variation of its ETA to 4am seven days a week
As referred to above, on 9 April 2009 a delegate of the Authority granted an ETA in respect of the Premises which relevantly permitted trading until 3am on Sunday nights. In about October 2010 the plaintiff made a further application to the Authority to vary its ETA to 4am seven days a week, including on Sunday nights.
At about that time there were applications pending by the licensees of three other venues in the Byron Bay area (Cheeky Monkey, Cocomangas and Liquid Bar) to extend their Sunday trading hours from midnight to 3am. The three other licensees relied on the plaintiff's existing ETA (which permitted trading until 3am on Sunday nights) in support of their own applications.
Bryce Wilson, who was then the Authority's General Counsel, provided legal advice to the Authority. In his email to Mr Greenhouse dated 29 November 2010 he set out the background of the four applications and summarised the Authority's request for advice in the following terms:
"At the October meeting I was asked by the Authority to provide legal advice on the Authority's power to vary the current extended trading hours for La La Land. Specifically, were the Authority minded to wind back La La Land's Sunday trading hours from 3am to midnight, does it have the power to do so?"
There is some evidence to suggest that in November 2010 an email was sent by Jonathan Greig, a former Departmental officer within the OLGR, to the Police. At that time Mr Greig's role was to case-manage applications made under the liquor and gaming legislation, receive submissions from applicants and others and prepare Authority Papers for matters that required a decision from the Authority. Mr Greig was not a member of the Authority and did not vote or participate in the making of decisions by the Authority. He held a delegation to determine less contentious matters from time to time. He ceased working for OLGR on about 1 December 2012.
The evidence that such an email was sent is confined to a reference in an email dated 5 September 2012 from Senior Constable Seddon to Mr Wilson (which is set out in full later in these reasons) in the following terms:
"I should also mention that Mr Jonathan Greig indicated by email in Nov 2010 that the Authority was also looking at how it could wind back La La Land. Obviously Mr Greig was simply expressing a view, however, it did indicate some hope that the Authority was considering revoking the ETA of its own initiative."
Despite the Authority's attempts, no email that meets the description in Senior Constable Seddon's email has been located. As there is no precise date mentioned it would appear that Senior Constable Seddon did not have the email to hand when he wrote the email of 5 September 2012. However, whether there was an email or not, I am satisfied that, by some means or other, Senior Constable Seddon was made aware by Mr Greig that the Authority was considering varying the plaintiff's ETA in about November 2010. That it was considering such a variation appears from the documents referred to above. As a preliminary step to such consideration, the Authority sought legal advice as to its power to do so.
At its meeting on 14 December 2010 the Authority considered the advice provided by Mr Wilson as to its power to vary the ETA already granted to the plaintiff. As the Authority claimed legal professional privilege the substance of the advice is not in evidence.
By letter dated 15 December 2010, the plaintiff withdrew its application to extend its ETA to 4am.
The meeting between the Authority and Police on 4 September 2012 and the subsequent email exchanges between them
On 4 September 2012 the Authority held a public meeting at the Byron Bay Community Centre. The transcript of the recording made of the meeting showed that the Authority, which had received an application from Woolworths to establish a packaged liquor licence (otherwise known as a bottle shop) under the Dan Murphy's brand, had convened the meeting so that it could hear the community's views about the application. Mr Sidoti said:
"Our purpose in holding the meeting as I say is to give you an opportunity if you wish to present your views directly to us and then to answer any questions that the authority may have. Our requirements are very much directed by the law. The Act that we administer, the Liquor Act, provides a number of tests that we have to apply in deciding whether or not a liquor application is to be granted."
During the meeting an unidentified male, who I infer was a police officer, was recorded as having said:
"I would complete by again stating police object to the approval of this application. Police have never been asked for a full submission regarding this application, only to provide advice to specifically requested information for the Authority."
Mr Sidoti was recorded as having responded as follows:
"Thank you very much and can I - before asking some questions just respond to the last point. The police in fact have been asked. The community impact statement is required to be sent - or police are required to be consulted in the preparation of that and the community impact statement has to be sent to the police for the police's comment to come to this Authority. The fact is that the local area command at the beginning of this process supported the application and provided us with no information whatsoever by which we could assess it.
We're very grateful for the information that has been provided which I must say is extremely helpful. We have found it difficult in the past when we have been aware of the grave situation in Byron Bay to find that the police have supported extending trading authorisations to three and four o'clock in the morning from some venues in this town and we've had difficulty understanding that. So to receive now detailed information from the police is something for which we are extremely grateful.
[Emphasis added.]
At 9am the following morning, 5 September 2012, Senior Constable Seddon sent an email to the Authority (addressed to Mr Wilson) in the following terms:
"As you may be aware Mr Sidoti informed the meeting at Byron Bay last night that police had previously supported 3am and 4am extended trading applications in Byron Bay. In some shock I spoke to Mr Sidoti after the meeting and it's possible it relates to the 3am (Sun) ETA for La La Land. Mr Brown's recollection was the same. Mr Sidoti did offer to check the records.
I have included the below information to assist. I have not included all the attachments to save space so this email goes through. I have sent what I have saved electronically so some will be the unsigned versions.
1.In 2008 La La Land applied for an ETA for Sun nights to 3am. Attached is the police response to the Notice of Intent and the police submission once the application was made.
On the 23/10/2008 I sent a short email to the Authority indicating police would be submitting an objection. On the 29/10/2008 I asked for confirmation that the police submission was received at the Authority. Dominic Herschel confirmed my initial email was received but not the submission. I had sent the submission mail via ALEC. I later confirmed with ALEC that the submission was forwarded to the Authority on the 5/11/2008. Following confirmation with Dominic that the submission had still not been received I emailed a scanned copy directly to Dominic on the 14/11/2008.
The application was approved in April 2009. I forwarded a report requesting a review of the decision in May 2009.
Following this approval the following applications were made. With each police submitted objections. I made special note that police had objected to the first application by La La Land in each of the subsequent submissions.
2.La La Land (ETA 4am each night)
3.Cheeky Monkeys (ETA 3am Sun)
4.Liquid Bar (ETA 3 am Sun)
5.Cocomangas (ETA 3am Sun)
In January 2011 I responded to a request for information from the Authority concerning the above applications. I again requested a review of the original approval in that report. At that time I don't believe the required form existed, however, will stand corrected if it did.
I should also mention that Mr Jonathan Greig indicated by email in Nov 2010 that the Authority was also looking at how it could wind back La La Land. Obviously Mr Greig was simply expressing a view, however, it did indicate some hope that the Authority was considering revoking the ETA of its own initiative.
As comments made at the public meeting were on record, and bearing in mind the above, can I ask that the Authority acknowledges police did not support 3am or 4am extensions of trade - on the record.
Can I please also take this opportunity to request that the Authority review its decision on the La La Land 3am Extended Trading Authorisation for Sunday nights of its own initiative. If this not not [sic] to be the case would the use of the form AMO130 provide the correct manner of request by police?
[Emphasis added.]
On 14 September 2012 Mr Sidoti responded by email to Senior Constable Seddon's email of 5 September 2012. He apologised for his error and confirmed that the Police had opposed all the applications for ETAs in the Byron area that the Authority had considered. Mr Sidoti also noted that he understood that the grant to the plaintiff of the ETA had been made, not by the Authority itself, but by the former Licensing Court. Mr Sidoti asked for his email to be forwarded to Superintendent Jago, whom I infer was the Officer-in Charge of the Tweed/ Byron LAC.
Senior Constable Seddon responded by email on the same day. He corrected Mr Sidoti's misapprehension that it was the Licensing Court rather than the Authority that had granted the ETA to the plaintiff. The email concluded:
"I understand from Senior Sergeant Tapley, the Northern Region Licensing Co-ordinator, that during a conversation from Mr Herschel, Mr Herschel caused Sen Sgt Tapley to understand the police submission was received, however may not have been considered due to an oversight. Sen Sgt Tapley's email address is included above should wish [sic] to confirm any details with him.
If it is the case that: my records are correct and the application was dealt with by the Authority; the decision was made without consideration of the police submission; and taking into account the Authority's refusal of the same application for the other 'nightclubs' in Byron Bay based on very similar information, can you please advise whether or not the Authority will revisit the original decision to approve this application or does the Authority require a further police application for review."
Mr Sidoti responded to Senior Constable Seddon by email later on 14 September 2012, relevantly in the following terms:
"I am grateful for your advice concerning the La La Land matter. The matter did not come before the full Authority, that is, its Board, and so it was my assumption (not based on any advice from Bryce Wilson) that it was decided by the Licensing Court. I was not aware that it had been decided under Authority delegation. You raise a significant legal issue in relation to the effect of any failure to consider and take into account the police submission, arising from Senior Sergeant Tapley's conversation with Mr Herschel. Again I was unaware of this possibility. I will need to ask Mr Wilson to obtain and review this file and, if there was any failure, to provide legal advice to the Authority on the consequences of such failure. It may be that we will need to seek submissions from the licensee before we can resolve this issue. Mr Wilson will be in touch with you when we have had an opportunity to consider the situation.
It is always open to the Police to make an application under the Liquor Act to the Authority to revoke or vary a decision taken by the authority, such as that in this case. I cannot and should not advise you on the appropriate course of action in any specific matter, I draw this provision to your attention."
The statement made by Mr Sidoti at the meeting on 4 September 2012 was mentioned in the documents that accompanied the application the Commissioner made under s 53 of the Act which was lodged in November 2012 (and provided to the plaintiff) in the following terms:
"4 September 2012
Police attend a conference held by the board of the Authority at Byron Bay concerning another application. As a result police communicate with the Authority concerning the history and current position of the Extended Trading Authorisation (Sunday 12mn to 3am) for La La Land."
Mr Sidoti's speech given on 21 March 2013 to the NSW Alcohol Summit
On 21 March 2013, Mr Sidoti gave a speech to the NSW Alcohol Summit. The paper that formed the basis of the speech and the DVD of the delivery of the speech were in evidence. In the course of the speech, Mr Sidoti also referred to what he described as "standard" arguments put by applicants. He then addressed what he described as "unhelpful" arguments put by opponents of licence applications.
Mr Sidoti's speech also included the following passages:
"Finally in licensing I wish to refer to the Authority's responsibility to impose conditions on licences where warranted and to set trading hours as part of the licensing process. We use these powers when granting licences. We have been particularly concerned about those aspects of trading that have a direct relationship with alcohol related violence. The most obvious issue here is trading hours, especially extended trading after midnight.
The Authority is well aware of the data and of the experiences relating to alcohol related violence. It has therefore been very reluctant to grant extended trading approvals after midnight and has done so rarely. There have been very few instances indeed where trading after 2am has been approved."
. . .
"The Authority can only deal with individual applications and individual licences. Where the social impact test applies, we cannot and will not permit arguments of competitive disadvantage to lead us to grant extended trading hours to a particular premises when we are not satisfied that the social impact test has been met. And so we are very reluctant to grant extended trading hours at all, and especially after 2am when the community is already over-exposed to alcohol-related violence or disturbance."
I do not consider that any of the statements made by Mr Sidoti indicated that either he or the Authority was not open to persuasion when an application was made under the Act, or when the Authority proposed to vary an ETA or licence or condition of a licence. Even if his views could be regarded as expressed on behalf of the Authority, it is of significance that the Authority is made up of a number of members, of whom he was only one. It can reasonably be inferred from the fact that the Authority took over the application by the Commissioner under s 53 of the Act and converted it into an application by the Authority of its own initiative under s 51 of the Act that the Authority was considering reducing the plaintiff's Sunday night trading hours. But there is nothing in the Act that prevented that course. Indeed the very existence of the power in s 51(9)(b) of the Act authorised the Authority to cause the matter to be considered by it anew.
Mr Sidoti's speech to the Alcohol Summit and the seminar paper in March 2013 coincided with the decision by the Authority to consider taking over the application by the Commissioner under s 53 and converting it to an application to vary by the Authority itself under s 51(9)(b) of the Act. However the hypothetical observer would be aware of what Mr Sidoti had said at the meeting on 4 September 2012 and realise that he was, in the main, making similar points to those he had made in the context of the application by Woolworths at the earlier meeting.
In McGovern, Basten JA said, at [128]:
". . . the fallacy underlying the appellant's case was that Councillor Ryan was required to keep an open mind on the merits of the application until the final meeting at which the Council determined its response. Where a councillor forms a firm view as to the appropriate course to be taken there is no reason why he or she should pretend to maintain an open mind whilst the debate proceeds. If further material is presented, no doubt it should be considered, but it will not be a demonstration of bias based on prejudgment merely to maintain one's original position if that position was properly adopted."
Chief Justice Spigelman made similar observations at [56] in the following passage:
"The present case is, however, concerned with apprehended bias and I see no reason why, in a context such as the present, a decision-maker cannot make up his or her mind at a stage in the deliberative process which is well before the final decision, without being accused of bias on the apprehended bias test."
When these statements of principle are applied to the present case, it can be seen that, even if Mr Sidoti had made up his mind that the plaintiff's ETA should be varied to permit Sunday trading only until midnight and that his public statements in March 2013 can properly be regarded as an expression of the view he had formed at that date, the test for apprehended bias is not fulfilled. I should add that I do not regard the public statements made by Mr Sidoti as expressions of a final view, although he must be taken to have had a firm inclination, which was grounded in the Act itself.
Furthermore, not only was Mr Sidoti entitled to form a preliminary view about this application, he was also entitled to form a view about Sunday trading after midnight in the Tweed/Byron area, based on his experience of past applications and the views of the Police. As Hayne J said in Minister for Immigration and Multicultural Affairs v Jia Legeng at [192]:
"Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly."
Although comparisons with other factual situations are not necessarily helpful, I note that the statements Mr Sidoti was recorded as having made in the present case are significantly more measured, balanced and neutral than those which were considered by Davies J in O'Hara v Independent Liquor & Gaming Authority [2014] NSWSC 880 but which were nonetheless found not to give rise to a reasonable apprehension of bias.
In my view, a fair minded lay observer would not reasonably apprehend from any of the matters relied on by the plaintiff (set out above), whether taken individually or cumulatively, that Mr Sidoti, and by extension the Authority itself, might not bring an impartial mind to its consideration of whether to vary the plaintiff's ETA under s 51(9)(b) of the Act.
Further matters
There are, in my view, further matters which are inconsistent with bias, whether actual or apprehended, on the part of the Authority. First, the Reasons disclose a considered analysis of the applicable law, the relevant factors and the evidence. They demonstrate, in my view, that the Authority weighed these matters to determine whether to vary the plaintiff's Sunday night trading hours. It did not wholly accept the submissions made by Police. Indeed it accepted that the plaintiff operated the Premises in a responsible way but that nonetheless the ETA ought be varied because of the wider social impact. Secondly, the Authority caused to be prepared two papers in which the submissions were summarised and addressed for its consideration. Thirdly, the Authority was made up, relevantly, of five members, of whom Mr Sidoti was only one. Fourthly, the Authority determined three ETAs in the period from March to July 2013 which involved trading after midnight, albeit subject to conditions.
For the foregoing reasons, ground 9 has not been made out.
Extension of time
The plaintiff commenced the proceedings on 26 November 2013, which was more than three months after the Decision was communicated to the plaintiff. Accordingly it needs an extension of time under the Uniform Civil Procedure Rules (UCPR), r 59.10. The plaintiff requested reasons on 28 August 2013. The Authority agreed to provide reasons but said that they could not be provided until after 4 September 2013. The Reasons were not provided to the plaintiff until 4 December 2013, about a week after the proceedings were commenced. It was reasonable for the plaintiff to await the receipt of the foreshadowed reasons before formulating the grounds in the summons, in circumstances where it had grounds to expect that it would receive the Reasons within time. The plaintiff has a clear interest in challenging the decision. The Commissioner did not oppose the extension. No prejudice has been identified. I am satisfied that it is appropriate to grant the extension sought.
Orders
I make the following orders:
(1) Pursuant to UCPR, r 59.10, extend the time to commence the proceedings up to and including 26 November 2013.
(2) Dismiss the further amended summons.
(3) Dissolve the stay ordered by Bellew J on 27 November 2013.
(4) Unless either party makes an application in writing to my Associate within seven days, order the plaintiff to pay the second defendant's costs of the proceedings.
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Decision last updated: 17 December 2014
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