Liquor Administration Board v Williams - [2001] NSWCA 143

CITATION: Liquor Administration Board v Williams & Ors [2001] NSWCA 143

FILE NUMBER(S): CA 40054/01

HEARING DATE(S): 10 May 2001

JUDGMENT DATE:
18 May 2001

PARTIES :

Liquor Administration Board v Andrew Denzil Williams; Licensing Court of New South Wales; Peter Scanlon; Hurstville City Council

JUDGMENT OF: Giles JA at 1; Ipp AJA at 5; Rolfe AJA at 6

LOWER COURT JURISDICTION : Supreme Court - Equity Division

LOWER COURT
FILE NUMBER(S) : ED 2951/00

LOWER COURT
JUDICIAL OFFICER : Windeyer J

COUNSEL: Appellant - J. Basten QC / T. M. Lynch
Respondent (1) - M.L.D. Einfeld QC / F.P. Donohoe
Respondent (4) - P. Riggs (Solicitor)

SOLICITORS: Appellant - I.V. Knight, State Crown Solicitor
Respondent (1) - Verekers
Respondent (4) - Deacons

CATCHWORDS: Statutory construction - meaning of 'authority' for the purposes of s161A(4) of the Liquor Act - meaning of 'final determination' in that section

LEGISLATION CITED: Liquor Act 1982
Crown Proceedings Act 1988

DECISION: Appeal allowed; Amended Summons dismissed; see paragraph 39

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40054/01

ED 2951/00

GILES JA

IPP AJA

ROLFE AJA

Friday, 18 May 2001

LIQUOR ADMINISTRATION BOARD v WILLIAMS & ORS

JUDGMENT

1 GILES JA: I have had the benefit of reading the reasons of Rolfe AJA in draft.

2 Drawing upon those reasons -

(a) neither s 182C of the Liquor Act 1982 (“the Act”) nor condition 31 in the conditional licence granted on 20 March 2000 authorised the keeping, use or operation of poker machines in the first respondent’s tavern; they imposed limits on the number of poker machines, and authority had to be obtained elsewhere;

(b) authority could be obtained pursuant to s 161 of the Act, by application to the appellant;

(c) section 161A(4) refers to authority given as a result of an application to the appellant pursuant to s 161;

(d) there were no such application and no such authority; and

3 That is sufficient for disposal of the appeal, and it is not necessary to consider the meaning of final determination.

4 I agree with the orders proposed by Rolfe AJA.

5 IPP AJA: I agree with Rolfe AJA.

ROLFE AJA

Introduction.

6 On 20 March 2000, the plaintiff/first respondent, (“the respondent”), for whom Mr M.L.D. Einfeld of Queen’s Counsel and Mr F.P. Donohoe of Counsel appeared on the appeal, made two applications to the Licensing Court of New South Wales. The first was for the removal of the Birkenhead Point Tavern licence from the Birkenhead Point Shopping Centre to 277 Forest Road, Hurstville. The Licensing Court rejected this application and it plays no further part in the proceedings.

7 The second was a conditional application for permission to develop a tavern at the Hurstville premises on the ground floor of a shopping centre located generally in the centre of the Hurstville shopping centre precinct. It was not in issue that the tavern would be in a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liquor Administration Board v Williams

Details

AGLC: Liquor Administration Board v Williams [2001] NSWCA 143
Case: [2001] NSWCA 143
Decision Date: 18 May 2001

CaseChat Overview and Summary

The Liquor Administration Board appealed to the Court of Appeal of New South Wales against a decision of a single judge of the Supreme Court. The dispute concerned the interpretation of section 161A(4) of the *Liquor Act 1982* (NSW) and whether the Liquor Administration Board constituted an 'authority' for the purposes of that section, and whether its decision was a 'final determination'.

The primary legal issues before the Court of Appeal were: first, whether the Liquor Administration Board was an 'authority' within the meaning of section 161A(4) of the *Liquor Act*; and second, whether the Board's decision to refuse to grant a licence constituted a 'final determination' for the purposes of that section. Section 161A(4) provided for the review of certain decisions by the Supreme Court.

Giles JA, with whom Ipp AJA and Rolfe AJA agreed, reasoned that the Liquor Administration Board was not an 'authority' for the purposes of section 161A(4). His Honour noted that the Act established the Board as a statutory body with specific functions, but that the term 'authority' in section 161A(4) was intended to refer to a body exercising a specific type of power, which the Board's licensing function did not fit. Furthermore, the Court held that the Board's decision to refuse a licence was not a 'final determination' as contemplated by the section, as it did not finally dispose of the applicant's rights or obligations.

Consequently, the appeal was allowed, and the amended summons seeking review of the Board's decision was dismissed.

Orders

Orders of the court

Appeal allowed; Amended Summons dismissed; see paragraph 39

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Liquor Administration Board v Williams & Ors [2001] NSWCA 143
FILE NUMBER(S):	CA 40054/01
HEARING DATE(S):	10 May 2001
JUDGMENT DATE:	18 May 2001
PARTIES :	Liquor Administration Board v Andrew Denzil Williams; Licensing Court of New South Wales; Peter Scanlon; Hurstville City Council
JUDGMENT OF:	Giles JA at 1; Ipp AJA at 5; Rolfe AJA at 6

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 2951/00
LOWER COURT JUDICIAL OFFICER :	Windeyer J

COUNSEL:	Appellant - J. Basten QC / T. M. Lynch Respondent (1) - M.L.D. Einfeld QC / F.P. Donohoe Respondent (4) - P. Riggs (Solicitor)
SOLICITORS:	Appellant - I.V. Knight, State Crown Solicitor Respondent (1) - Verekers Respondent (4) - Deacons
CATCHWORDS:	Statutory construction - meaning of 'authority' for the purposes of s161A(4) of the Liquor Act - meaning of 'final determination' in that section
LEGISLATION CITED:	Liquor Act 1982 Crown Proceedings Act 1988
DECISION:	Appeal allowed; Amended Summons dismissed; see paragraph 39