Laundy v Stivano; Lambert v Stivano; Fairfield City Council v Stivano; Director of Liquor and Gaming v Stivano

[2002] NSWSC 440

CITATION:

Laundy and Anor v Stivano and Anor; Lambert v Stivano; Fairfield City Council v Stivano and Anor; Director of Liquor and Gaming v Stivano [2002] NSWSC 440

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 10619/01; 10627/01; 10642/01 10893/01

HEARING DATE(S):

29 April 2002

JUDGMENT DATE:

23 May 2002

PARTIES :

Arthur Harold Laundy - First Plaintiff
Desmond Isaac Nasser - Second Plaintiff
Chris Anthony Stivano - First Defendant
Licensing Court of NSW - Second Defendant

Mary Elizabeth Lambert - Plaintiff
Chris Anthony Stivano - Defendant

Fairfield City Council - Plaintiff
Chris Anthony Stivano - First Defendant
Licensing Court of NSW - Second Defendant

Director of Liquor and Gaming - Plaintiff
Chris Anthony Stivano - Defendant

JUDGMENT OF:

Brownie AJ

LOWER COURT JURISDICTION :	Licensing Court of NSW
LOWER COURT FILE NUMBER(S) :	010893/01
LOWER COURT JUDICIAL OFFICER :	Full Bench

COUNSEL :

Mr JB Costigan - Plaintiff
Mr D Officer QC with IAN Lawry - Defendant

Mr JF Kildea - Plaintiff
Mr D Officer QC with Mr IAN Lawry - Defendant

Mr AJJ Thompson - Plaintiff
Mr D Officer QC with Mr IAN Lawry - Defendant

Ms V Hartstein - Plaintiff
Mr D Officer QC with Mr IAN Lawry - Defendant

SOLICITORS:

Freehills - First and Second Plaintiffs
John de Mestre & Co - Defendant

Ian D Elvy & Associates - Plaintiff
John de Mestre & Co - Defendant

Kencalo & Ritchie - Plaintiff
John D Mestre & Co - Defendant

I V Knight, Crown Solicitor - Plaintiff
John de Mestre & Co - Defendant

.

CATCHWORDS:

Liquor Law - transfer - objections and grounds for grant or refusal - "primary purpose" - Liquor law - transfer - objections and grounds for grant or refusal - discretion to grant notwithstanding objection made good - Liquor law - licensing tribunals generally - reviews, appeals and cases stated - New South Wales - Standing of Director of Liquor and Gaming.

LEGISLATION CITED:

Liquor Act 1982
Liquor Act 1912

CASES CITED:

The Application of Wynne, Licensing Court 22 July 1999
The Returned and Services League of Australia (Victorian Branch) Inc (Pascoe Vale Sub-Branch) v Liquor Licensing Commission [1998] VSC 87
O'Sullivan v Farrar (1989) 168 CLR 210
Carrall v Moss [1980] 2 NSWLR
Coles Myer Limited v O'Brien 1992) 28 NSWLR 525

DECISION:

In each case the appeal should be allowed. The decision of the Licensing Court should be set aside, and the case remitted to that court for reconsideration by it, having regard to this decision.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BROWNIE AJ

23 May 2002

10619/01 LAUNDY AND ANOR v STIVANO AND ANOR
10627/01 LAMBERT v STIVANO
10642/01 FAIRFIELD CITY COUNCIL v STIVANO AND ANOR
10893/02 DIRECTOR of LIQUOR AND GAMING v STIVANO

JUDGMENT

1 BROWNIE: These four cases were heard together. Each of the plaintiffs appeals from a decision of a full court of the Licensing Court, granting an application by Mr Stivano (hereafter “the defendant”) for the conditional removal of a hotelier’s licence to premises at shops 8 and 9, 48-66 The Horsley Drive, Carramar (“the premises”). The plaintiffs in the first case, Messrs Laundy and Nasser, have financial interests in other hotels situated nearby. The plaintiff in the second case, Ms Lambert, is the principal of a public school, situated opposite the premises on the other side of The Horsley Drive. The plaintiff in the third case, Fairfield City Council, is the relevant local government authority. The plaintiff in the fourth case is the Director of Liquor and Gaming (“the Director”).

2 Broadly speaking, three issues were argued: whether the primary purpose of the proposed business was the sale of liquor by retail, within the meaning of s 45(2AA)(a) of the Liquor Act 1982 (“the 1982 Act”) and cognate provisions of that Act; whether, once there had been a finding that the premises were in the immediate vicinity of a public school, within the meaning of s 45(3)(d) of the 1982 Act, the Licensing Court properly exercised its discretion in granting the application; and whether the Director had standing to appeal. Other questions raised earlier were not pressed.

3 At the time of the hearing before the Licensing Court, the premises consisted of two empty shops. The defendant’s proposal was that a new hotel business be established in those shops. He proposed to establish there a large bar/dining area and a separate gaming room, together with related facilities, such as a kitchen, cool room, and lavatories. During the course of the hearing, which extended over some months, a Mr Brooks effectively took over the conduct of the application, brought in the name of the defendant. Each of Mr Brooks and the defendant acted as a representative of Actwane Pty Limited, a company apparently substantially controlled by a Dr Larkin. Mr Brooks put forward estimates of future income and expenditure for the proposed business, suggesting that although it would initially be conducted at a loss, ultimately it would be conducted at a profit. His figures suggested, broadly speaking, that whilst the business would show a loss on liquor and food sales, the profit from the gaming activities would more than make up for that loss.

4 The 1982 Act contains the following provisions, relevant to the arguments now advanced:-

2A A primary object of this Act is liquor harm minimisation …
2B(1) Other primary objects of this Act are:
(a) gambling harm minimisation, that is, the minimisation of harm associated with the misuse and abuse of gambling activities, and
(b) the fostering of responsible conduct of gambling activities.
(2) The court, the Board, the Director, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for gambling harm minimisation and to foster the responsible conduct of gambling activities when exercising functions under this Act. In particular, due regard is to be had to the need for gambling harm minimisation when considering for the purposes of this Act what is or is not in the public interest.
21AA It is a condition of a hotelier’s licence that:
(a) the primary purpose of the business conducted in the hotel under the authority of the licence is to be the sale of liquor by retail, and
(b) any use of approved gaming devices on the premises does not detract unduly from the character of the premises or from the enjoyment of persons ordinarily resorting to the premises (otherwise than for gaming).
45(1) Objection to the grant of an application may be taken on the following grounds:
(a) [grounds personal to the applicant, or someone linked to the applicant] …
(c) that, for reasons other than the grounds specified in paragraphs (a) and (a1) and subsections (2), (2AA), (2A) and (3), it would not be in the public interest to grant the application.
(2) Subject to section 57, objection to the grant of an application … for the removal of, a hotelier’s licence … may be taken (whether or not an objection is also taken on a ground specified in subsection (1), (2AA) or (3)) on the ground that the needs of the public in the neighbourhood of the premises to which the application relates can be met by facilities for the supply of liquor existing in, and outside, the neighbourhood.
(2AA)Objection to the grant of an application for, or for the removal of, a hotelier’s licence may be taken (whether or not an objection is also taken on a ground specified in subsection (1), (2) or (3)) on the ground that:
(a) the primary purpose of the business to be conducted under the authority of the licence to which the application relates is not the sale of liquor by retail, or
(b) the proposed use of approved gaming devices on the premises to which the application relates will detract unduly from the character of the premises or from the enjoyment of persons ordinarily resorting to the premises (otherwise than for gaming).
(3) In addition to, or instead of, a ground specified in subsection (1) but without limiting its generality, objection to the grant of an application may be taken on one or more of the following grounds:
…

(d) that the premises to which the application relates are in the immediate vicinity of … a place of public worship, a hospital or a public school,

…

(f) that a requirement of the Director made under this Act in relation to the application and specified in the objection has not been complied with.
…
(4) Where an objection to an application is taken on a ground referred to in subsection … (2) [or] (2AA) … the onus is on the applicant to satisfy the court …

(c) in the case of an objection on the ground specified in subsection (2) – that the needs of the public in the neighbourhood of the premises to which the application related cannot be met by facilities for the supply of liquor existing in, and outside, the neighbourhood, or

(c1) in the case of an objection on the ground specified in subsection (2AA) (a) – that the primary purpose of the business to be conducted under the authority of the licence to which the application relates is the sale of liquor by retail, or
(c2) in the case of an objection on the ground specified in subsection (2AA) (b) – that the proposed use of approved gaming devices on the premises to which the application relates will not detract unduly from the character of the premises or from the enjoyment of persons ordinarily resorting to the premises (otherwise than for gaming), or …


(7) Without limiting the factors to which a court may have regard in determining the primary purpose of the business conducted under the authority of the licence, or the impact of the use of approved gaming devices, for the purposes of dealing with an objection on either of the grounds specified in subsection (2AA), the court may have regard to any or all of the following:
(a) the proposed or actual physical layout of facilities at the premises, including the positioning of any approved gaming devices kept, used or operated on the premises,
(b) the general manner in which gaming is or is to be conducted at the premises,
(c) the advertising of the premises, and of the availability of gaming facilities at the premises (including, for example, whether the premises are advertised as a hotel or as premises where gaming devices are kept, used or operated.)
47(1) Notwithstanding a finding by the court that a ground of objection to the grant of an application specified in section 45(1)(a1), (2) or (3)(a)-(e) has been made out, the court has a discretion to grant the application.
49A(1)An application for a hotelier’s licence may not be granted unless the court is satisfied that:
(a) the primary purpose of the business to be conducted under the authority of the licence to which the application relates is the sale of liquor by retail, and
(b) any proposed use of approved gaming devices on the premises will not detract unduly from the character of the premises or from the enjoyment of persons ordinarily resorting to the premises (otherwise than for gaming).
(2) Without limiting the factors to which the court may have regard in determining the primary purpose of the business conducted under the authority of the licence, or the impact of the use of approved gaming devices, the court may have regard to any or all of the following:
(a) the proposed or actual physical layout of facilities at the premises, including the positioning of any approved gaming devices kept, used or operated on the premises,
(b) the general manner in which gaming is to be conducted at the premises.
(c) the advertising of the premises, and of the availability of gaming facilities at the premises (including, for example, whether the premises are advertised as a hotel or as premises where gaming devices are kept, used or operated).
57(1A)The court is to refuse an application for removal of a hotelier’s licence unless the court is satisfied that:
…

(c) the primary purpose of the business to be conducted under the authority of the licence to which the application relates is the sale of liquor by retail, and
(d) any proposed use of approved gaming devices on the premises will not detract unduly from the character of the premises or from the enjoyment of persons ordinarily resorting to the premises (otherwise than for gaming).
146(1) A person aggrieved by an adjudication of the Licensing Court may appeal therefrom to the Supreme Court of New South Wales on a question of law.
161(1) On the application of a hotelier, the Board may impose a condition of the hotelier’s licence authorising the licensee to acquire and keep in the hotel, and to permit the use and operation of, not more than 30 approved gaming devices.

Primary purpose

5 Although I referred to this, above, as if it was a single issue, there are a number of questions involved. The relevant plaintiffs, that is, those in the first, third and fourth cases, challenged the basis upon which the Licensing Court concluded that the primary purpose was that for which the defendant contended, and this challenge extended both to the way in which the facts were dealt with, and to the appropriate approach to the proper construction of the stature. Additionally, they contended that the Licensing Court should have drawn an inference adverse to the defendant, by reason of his having failed to call Dr Larkin as a witness; and they contended that the Licensing Court had not directed itself correctly, in relation to ss 2B and 161(1) of the 1982 Act.

6 The proceedings before the Licensing Court were complex and lengthy. A number of issues ventilated there have been resolved, and need not be mentioned now. There was a good deal of evidence relating to objections taken under s 45(2), concerning the “needs” of the public in the neighbourhood, and the questions relating to the application of ss 45(7) and 49A(2), as to the factors to be considered in determining the primary purpose of the business conducted under the authority of the relevant licence, or the impact of the proposed use of approved gaming devices, as well as evidence going to the question, labelled for ease of reference as “primary purpose”.

7 Several of the arguments advanced in the Licensing Court, and on appeal, were based on statements made in two earlier decisions: The application of Wynne, Licensing Court, 22 July 1999, not reported, and The Returned and Services League of Australia (Victorian Branch) Inc (Pascoe Vale Sub-Branch) v Liquor Licensing Commission [1998] VSC 87 (“RSL”). Before the Licensing Court in this case, all relevant parties accepted the correctness of what had been decided in Wynne, and the defendants submitted that the relevant plaintiffs could not now depart from the concession made there.

8 In RSL, a club was the applicant for a licence. The Full Commission of the Liquor Licensing Commission (of Victoria) was satisfied that the club had shown that the primary purpose of the business proposed to be conducted on the licensed premises was that of a club. That was a question of fact. The finding was challenged on the basis that the Commission should have had regard to the revenue expected to be generated from gaming, in determining the primary purpose of the business to be carried on the licensed premises. O’Bryan J said that the words ”primary purpose” were ordinary English words, to be given their plain meaning: “principal object”. He referred to the constitution of the club, which showed the objects for which the club had been established - a wide range of activities, without any mention of gaming – and found that the Commission had addressed itself to the issue raised by the statute. In a passage quoted by the Licensing Court in Wynne, he continued:-

“[Counsel] submitted that the Full Commission did not take into account sufficiently the proportion of revenue to be earned from the food and drink consumed by gaming visitors and patrons as against non-gaming club members. I note, however, that the Full Commission did find that revenue from gaming would be about 48% and that revenue from the sale of food and beverages would be about 51%. I am not persuaded that the “primary purpose” of the business of a club can be determined simply by considering the amount of revenue provided by a particular sales centre. A golf club may provide a course for members, food and beverage and gaming machines. Should the revenue from golf be exceeded by the revenue from gaming in my opinion that circumstance alone would not prove that the primary purpose of the business of the golf club is gaming. The primary purpose or principal object of the golf club would be golf and secondary objects, such as food and beverage and gaming facilities which are recreational or social, would be ancillary.”

9 On the present hearing, counsel observed that, whilst a club might have a written constitution, a hotel ordinarily does not. This is correct, but I consider that the point tends to obscure rather than clarify the real issue. The 1982 Act used the expression “primary purpose”, and whilst this may be treated, correctly, as equivalent to “principal object”, to then focus upon the objects for which a corporation is brought into existence is to stray from the question how the words of the statute should be construed; and it can hardly have been the intention of the parliament, when enacting ss 21AA(a), 45(2AA)(a), 45(7), 49A(1)(a) and (2), and 57(1A)(c), that the question about “primary purpose” should be governed, or largely governed by the terms of the constitution of the relevant corporation, if there is one. No doubt it is a circumstance to be considered, but I do not think that, in the general run of cases, it can be taken any further than that. I do not understand O’Bryan J to have suggested as much.

10 In Wynne, one of the issues concerned the proportions of revenue expected to be received from the proposed gaming activities, compared to other sources of revenue. The Licensing Court quoted [41] of the judgment of O’Bryan J in RSL, set out at [8] above. It then examined the evidence and found that the applicant had not discharged the onus he bore, in establishing that the primary purpose of the proposed business was the sale of liquor by retail. At [86] of its reasons for judgement in Wynne, the Licensing Court said:-

“The estimated trading figures set out [above] do not assist us because we accept gaming revenue in hotels, such as that proposed, can be as great or greater than the revenue from food and beverage. On the facts of this case we agree with the views of O’Bryan J … that a consideration of the revenue from gaming should not be simply considered.”

11 The relevant plaintiffs submitted that this paragraph, when read together with [84] of its reasons for judgment in this case, demonstrates an error in approach. The court said:

“Whilst the amount of revenue estimated to be gained from the operation of the gaming machines appears to equate up to 68% of revenue this is not the sole determinant. As we said in the Wynne case looking purely at figures can be unhelpful. We come to the conclusion that the applicant has overcome each of the two issues relating to primary purpose and adverse affectation.”

The defendant pointed to the fact that, during the hearing in the Licensing Court, the plaintiffs accepted the correctness of the decision in Wynne . This concession was apparently made during final address, and is not recorded, but it hardly matters. The relevant plaintiffs do not criticise the decision in Wynne , so much as say that, in this case, the Licensing Court apparently proceeded on the basis that its earlier decision in Wynne should be regarded as going further than the actual decision in Wynne justifies. I do not see any justification for treating either the decision in Wynne or the decision in RSL as incorrect, but I do have some difficulty in seeing that either of those decisions established anything in the nature of a general proposition of law, as to the meaning to be assigned to the expression “primary purpose”. Each case necessarily depends upon its own factual matrix.

12 During the course of the hearing Mr Brooks proffered what the Licensing Court described as “a very rough budget”. That description perhaps praises it excessively. It consisted of four pages of manuscript notes, with one of those pages all but blank. It contained “guesstimates” of the numbers of patrons who might attend and buy meals, and of the income to be thereby generated, other figures concerning income generated from other resources, and figures for outgoings. It overlooked obvious items, such as the “on costs” associated with wages – there was only a reference to superannuation, without any figure being assigned to that – and to the cost of providing security services. It seems that the Licensing Court regarded the figures as unreliable. It made no express finding adopting them. There was no other evidence upon which the court could have taken an informed view about the sources of income, and the proportions between those sources.

13 By itself this is not a particularly significant factor, but the relevant plaintiffs point to other matters, to be considered together with this circumstance. If the primary purpose of the business to be conducted under the authority of the licence was to be the sale of liquor by retail, there were some features of the case that attracted notice. It was proposed that the business not sell packaged liquor, and that it not provide any drive-by bottle sale facility. If the primary purpose of the business was the sale of liquor by retail, these are circumstances which, unexplained, are odd. The plaintiffs pointed to other matters customarily found in hotels, not proposed to be supplied at the relevant premises, such as accommodation, entertainment, pool tables or PubTAB. However, these matters are not in any relevant sense essential, and I see no sound basis for thinking that the Licensing Court erred in relation to those facilities.

14 Mr Smith was an expert witness. The Licensing Court summarised parts of his evidence and then said -

“Mr Smith gave evidence that he felt the tests had been met. In particular he said that no one looking at these premises would doubt that they were an hotel, albeit a small hotel, and said that these premises would not be dissimilar to hotels such as those that existed prior to the 1950’s. He emphasised that the premises would meet all required standards as to numbers of people on the premises and the like. We note of course that they have passed through the appropriate planning processes. Mr Smith acknowledged that gaming was a major attraction for hoteliers and that without gaming many hotels would be unprofitable. He said that the monetary through-put on gaming machines was a dominant factor in any suburban hotel and that most hotels with 15 gaming machines draw more than 50% of their revenue from gaming. He said therefore that gaming was an incentive rather than the primary purpose for hotels.”

15 Asked whether, if it were not for the gaming proposed, there would have been no application made to the Licensing Court, Mr Smith said:-

“I’d agree with that because I mean before gambling this court had very, very few licences applications before it. Now with gambling it’s had a considerable number and I can assure the court that it’s only seen the tip of the iceberg. I mean it’s like that.”

16 Asked then if it followed that the primary purpose was gaming rather than the sale of liquor he said:-

“No, the – well you can’t have gambling without the sale of liquor so I suppose the primary purpose has got to be the sale of liquor. The incentive for all of the new hotel development, except perhaps that that’s Olympic related in the centre of Sydney, is gambling. The State Government have said “You can have gaming machines” and the hoteliers have been delighted to seize on them.”

17 Additionally, in this context, there was a debate about the failure of the defendant to call Dr Larkin. As to this, the Licensing Court said at [75]:-

“The objectors make much criticism of the failure to call Dr Larkin who is one of the financially interested persons behind this application so that he can be cross-examined on this issue. He was present throughout the hearing. Mr Brooks is one of the applicants and person who it is proposed on behalf of Dr Larkin will operate the hotel. Mr Brooks is not employed by or on behalf of Dr Larkin or his interests and has merely had discussions with Dr Larkin about the proposal. The decision to call Dr Larkin or for him to give evidence is a matter for the applicants’ case. The Court is of the view that when a proposed licensee is merely an employee and able to be dismissed, that a financially interested person, such as Dr Larkin, should be called to confirm the proposed manner of operation. This particularly applies when only one or two persons can be categorised as the financially interested persons. On the totality of the evidence before us we do not make a Jones v Dunkel determination against the applicant because of the failure to call Dr Larkin.”

18 The plaintiffs submitted that it is difficult to reconcile the last sentence of this paragraph with the balance of the paragraph, and difficult to know what the Licensing Court meant by the last sentence. I consider that, in the circumstances, the court should have inferred that Dr Larkin’s evidence would not have assisted the defendant’s case. Apparently, the court did not draw this inference, but why it did not do so is not clear to me. At the least, the court did not give adequate reasons for not drawing this inference. Further, the comments made by the court reinforce the doubt that flow from the unsatisfactory nature of the evidence of Mr Brooks. According to Mr Brooks, the hotel would lose money for about the first 12 months, and thereafter the continuing losses from selling liquor and food would be more than offset by the profit from gaming. The relevant plaintiffs challenged the proposition that in these circumstances the primary purpose of the business was that of selling liquor. Again, at the least, the reasons for judgment are inadequate as to the conclusion on this question.

19 The relevant plaintiffs also submitted that the Licensing Court had erred, in considering that the defendant had an “entitlement” to approved gaming machines. At [85] the court said:

“We make this finding based on all of the evidence we set out above and in particular the proposed manner of operation of the premises in relation to the range of liquor to be provided and the dining facilities and by looking at the total floor area of these premises. Again, reflecting upon the dominance of gaming revenue, but acknowledging an entitlement of hoteliers to have gaming, we do not come to the conclusion that these figures indicate that the primary purpose test is not met as to limb (a) above. We are particularly comforted in this conclusion by reason of the number of machines being limited to 15, as compared to a statutory ability to go up to 30 with the acquisition of permits, and the limited trading hours over which the premises will operate.”

20 As the plaintiffs submitted, there is no “entitlement” for hoteliers “to have gaming”, in a strict sense, and the expression “a statutory ability” to have up to thirty approved gaming devices on the premises is also a little troublesome. It may be that these references were no more than slips, but taken together with the other matters, they seem to me to be significant.

21 Finally, in this context, the plaintiffs submitted that the Licensing Court did not give proper consideration to the provisions of s 2B, which requires the court to have due regard to the need for gambling harm minimisation. The defendant pointed to the provisions of Division 1A of Part 11, which I have not set out, but which provides, in brief, for a social impact statement to be obtained by a hotelier, and provided to the Liquor Administration Board, before the Board exercises the power conferred on it by s 161(1), quoted above.

22 This is correct as far as it goes, but s 171A, the first section in Division 1A, commences:-

“The provisions of this Division are a means (but not the only means) of giving effect to the primary objects of this Act referred to in s 2B.”

In the circumstances I consider that the court was required to have due regard to the matter, by force of s 2B. Practically speaking, not very much at all may have been required, but something was necessary.

23 In the circumstances of this case, all of the above matters need to be considered together. The evidence of Mr Smith provides at best an unsafe foundation for thinking that the primary purpose of the proposed business was the sale of liquor. His reasoning appears to have been that since gaming could not be lawfully conducted without liquor, therefore the sale of liquor was the primary purpose of the business. The figures provided by Mr Brooks were unsatisfactory. If the primary purpose of the lease was to be the sale of liquor by retail, obvious sources of income from that activity were omitted, apparently deliberately. Dr Larkin did not give evidence, and the usual inference should have been drawn from that fact. The court apparently treated its summary of what it had said in Wynne as if that was equivalent to the words of the statute. Considering all these matters together, I conclude that the Licensing Court approached the court on a wrong basis.

24 I note in passing that, after the decision of the Licensing Court in Wynne, the Victorian Court of Appeal dismissed an appeal from a decision of O’Bryan J in RSL: [1999] 2 VR 203.

Adverse affectation

25 There was a separate issue raised, arising under ss 21AA(b), 45(2AA)(b) and 49A(1)(b), as to whether the proposed use of approved gaming devices on the premises would unduly detract from the character of the premises or the enjoyment of persons ordinarily resorting to the premises otherwise than for gaming; and a good deal of evidence was given directed to this issue, and to the overlapping issues arising under s 45(7).

26 I see no error of law in what the Licensing Court said as to these issues, and no advantage to any party in recounting any of the evidence about these matters, which might be thought to have some relevance to the “primary purpose” issue. Whist the evidence is logically capable of going to the primary purpose issue, it is in all the circumstances of so peripheral a nature as to be of little if any utility, particularly given my conclusions expressed above.

In the vicinity of a public school

27 The Licensing Court held, at [158]:

“There appear to be three relevant discretions which we must consider. The general statutory grant discretion, even though a ground of objection has been made out, section 47(1), as well as the general discretion in the Court as determined in Bradley v Fitzmaurice [1974] 2 NSWLR 286, as well as the specific discretion relating to immediate vicinity, Haddrill v Stode (supra).

See also [144]. The relevant plaintiffs, that is those in the second and fourth cases, submitted that this was an error, and that there was only one discretion to be exercised, namely that conferred by s 47(1) of the 1982 Act.

28 Bradley and Haddrill were cases arising under the provisions of the Liquor Act 1912 (“The 1912 Act”). In Bradley, it had been found that the premises in question, the subject of an application for a spirit merchant’s licence, were in the immediate vicinity of a church, so that on objection based upon s 29(f) of the 1912 Act (which corresponds with s 45(3)(d) of the 1982 Act) had been made good. Jeffrey J held that, nevertheless, upon the proper construction of the 1912 Act considered as a whole, there was a discretion in the Licensing court to grant the licence.

29 Haddrill, an unreported decision of Cantor J, of 9 August 1992, was concerned with a similar factual situation: there was an application made under the 1912 Act for the removal of a publican’s licence to premises in the immediate vicinity of a public school. Cantor J concluded that the Licensing Court had a discretion to grant the application notwithstanding this finding that the ground of objection had been established. As I read the judgments of Jeffrey and Cantor JJ, their Honours were not referring to separate discretions, but to the same discretion. However, since each judgment was directed to the proper construction of the 1912 Act, it probably does not matter very much now. The relevant plaintiffs relied upon the decision in O’Sullivan v Farrer (1989) 168 CLR 210, a case arising under the 1982 Act. There was a finding that none of the objections taken had been made good, and the question arose whether, notwithstanding that finding, the Licensing Court had a discretion to grant or refuse the licence in question. Mason CJ, Brennan, Deane and Gaudron JJ held that it did. Their Honours analysed the provisions of the 1982 Act (in its then form), referring to the provisions of s 47 and s 45. At 216-217, they said:-

“The public interest considerations which may ground an objection under s.45(1)(c) are, in terms, confined to considerations “other than the grounds specified in paragraphs (a) and (b) and subsections (2) and (3)”. But, these limits aside, the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”:.. And the subject-matter to be decided, involving, as it does, the distribution and location of facilities for the supply of liquor, is one which has traditionally been seen as permitting the exercise of a broad discretion in the decision-making process… These considerations and the fact that s.47 has no operation with respect to a public interest objection under s. 45(1)(c) lead to the conclusion that, save to the extent that the Act expressly provides otherwise, the Act confers a general discretion to grant or refuse an application by reference to those public interest considerations which will ground an objection under s 45(1)(c) of the Act, whether or not an objection has been taken under that paragraph.”

30 The 1912 Act did not contain a provision, equivalent to s 47 of the 1982 Act. In my view, there is only one discretion to be exercised, namely that mentioned in s 47 of the 1982 Act, discussed by the High Court in O’Sullivan. To that extent I consider that the Licensing Court misdirected itself.

31 The relevant plaintiffs took a separate point. The Licensing Court continued, in paragraph [158], immediately after the passage already quoted above:-

“Having regard to the decision of Hunt J in Carrall v Moss [1980] 2 NSWLR 473:
“The issue is, not whether the applicant for a licence has discharged an onus of establishing why the discretion should be exercised in favour of granting the application. Rather it is whether the findings in favour of the applicant of public interest and public need outweigh, or are outweighed by, the detriment to those who have successfully established their objections to the application.”

32 In Carrall Hunt J, as he then was, had to consider a case arising under the provisions of the 1912 Act, involving an application for a spirit merchant’s licence in respect of premises found to be within a residential area. At [37] his Honour said, referring to previous authorities concerning the application of the 1912 Act:-

“The mere location of the proposed site in an area which is primarily residential cannot be sufficient, without more. The public interest being the primary consideration, and an evaluation of that interest and public need being required in each case … such an objection can be made.”

33 Then, at [43], dealing with a separate issue concerning the proper exercise of discretion, and the way in which the Licensing Court had expressed itself, he said the words quoted by the Licensing Court in the present case. The relevant plaintiffs submit that the Licensing Court fell into error at that point, in that it failed to consider how that test should be restated in the light of s 47(1) of the 1982 Act.

34 I think that, strictly speaking, this is correct, although the point may have little practical consequence. The statement of Hunt J that no question arose as to the discharge of an onus remains as good law together with his statement that what is needed is a finding as to whether the factors supporting the grant of discretion outweigh, or are weighed down by the factors against it, but the balance of the statement should be regarded as having been overtaken by the enactment of the 1982 Act, together with its subsequent amendments including (including s 47(1A)). I would not attempt to be more precise unless and until the need to do so arises.

35 The relevant plaintiffs also contended that the Licensing Court had not identified the various findings it made which favoured the granting of the licence, and which favoured not granting it, and did not weigh these findings against each other. Whilst, by reason of the matters mentioned above, I consider that the case should be remitted to the Licensing Court, I do not accept that this challenge should be upheld. After reviewing the evidence and the submissions, and noting the relevant authorities, the court held at [141] – [143] that the premises were in close physical proximity to the school within the meaning of s 45(3)(d) of the 1982 Act, but that neither the activities of likely patrons of the hotel nor the possibility of the allurement or attraction of the proposed hotel was likely to be a significant factor. Later, the court considered the same general topic under the rubric of “public interest”. Whilst the judgment needs to be reconsidered, for the reasons set out above, I do not accept that this expression of conclusions should be criticised, for the reason now under consideration.

Standing

36 The defendant contended that the Director had no standing to bring the fourth case, now pending, because he was not a “person aggrieved” within the meaning of s 145 of the 1982 Act. The defendant accepted that, generally speaking, the Director had standing to participate in the proceedings in the Licensing Court, and proceedings on appeal from the Licensing Court, but submitted that, having regard to the course of events in the Licensing Court in this case, he had no standing to appeal now.

37 Prior to the hearing in the Licensing Court commencing, the Director notified the defendant of concerns he had. On the first day of the hearing, he appeared, and it was said that the concerns of the Director had been or would be met, in various ways. Thereafter, it seems, the Director did not appear, during the succeeding nine days of the hearing in the Licensing Court.

38 The evidence shows that a new Director was appointed in December 2000. Until then the practice of the former Director was that he did not take a separate objection, if some other person took an objection to the grant or transfer of a licence. However, from February 2001 onwards, the practice changed. Thereafter consideration was given to lodging a separate objection in respect of any application concerning a hotel in the immediate vicinity of a place of public worship, a hospital or a public school.

39 The point appears to be free from authority. However, given the reasoning of the Court of Appeal in Coles Myer Limited v O’Brien (1992) 28 NSWLR 525, and the distinction between “person aggrieved” and “party aggrieved”, and the general nature of the responsibilities of the Director under the 1982 Act, I consider that he is properly described as a “person aggrieved”.

40 The only relevance of this question in this case is costs: each of the points taken by the Director was also taken by another plaintiff or other plaintiffs. Any injustice or hardship to the defendant is adequately met by not making an order that the defendant pay the costs of the Director.

Conclusion

41 In each case the appeal should be allowed. The decision of the Licensing Court should be set aside, and the case remitted to that court for reconsideration by it, having regard to this decision.

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Last Modified: 05/24/2002