Liquor Commission of the N.T. v Gaye Pty Ltd

[1986] FCA 138

Re: LIQUOR COMMISSION OF THE NORTHERN TERRITORY
And: GAYE PTY. LTD.
No NT G22 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
Beaumont J.
Wilcox J.

CATCHWORDS

Administrative law - natural justice - ex parte application for writ of Certiorari to remove orders of Liquor Commission into the Supreme Court and to quash those orders - order made absolute in the first instance to quash the Commission's orders without hearig the Commission - denial of natural justice

Rules of Supreme Court of the Northern Territory 0.55

HEARING

DARWIN

#DATE 11:4:1986

ORDER

The appeal is allowed.

So much of the order of the Supreme Court of the Northern Territory made on 8 August 1985 as quashed the orders of the appellant made on 7 August 1985 be set aside.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellant appeals from so much of an order of a Judge of the Supreme Court of the Northern Territory made on 8 August 1985 as quashed certain orders made by the appellant on 7 August 1985. The orders made by the appellant suspended the liquor licence, gave directions under s.65 of the Liquor Act (N.T.) and varied the terms of the liquor licence in relation to premises known as Beachfront Hotel, Nightcliff.

1. The history of the matter is as follows. On 8 August 1985, the respondent applied, ex parte, to the learned Judge for a writ of Certiorari directed to the appellant to remove into the Supreme Court and to quash the appellant's orders. The respondent was not the licensee of the premises; the licensee was not a party to the proceedings and there is a real question as to whether an order should have been made in the absence of the licensee. The application was supported by an affidavit sworn on 8 August 1985 by Mr. Benito Tumminello, a director of the respondent, to the following effect: The respondent was the owner of the hotel premises which were licenced under the Liquor Act; on 6 August 1985, Mr. Kneebone, the Registrar of the appellant, informed Mr. Tumminello that certain complaints had been received by the appellant with respect to the hotel; that the complaints were to be placed before the appellant on the next day; that Mr. Tumminello having enquired of Mr. Kneebone whether he had to attend, was informed that he did not have to attend as "it was for the (appellant) only"; that Mr. Tumminello, having been told that he would be informed of the result, then said to Mr. Kneebone that "whatever happens I would like to discuss this and sort this out".

2. Mr. Tumminello also swore that on 7 August 1985, the chairman of the appellant wrote to Mr. R. Worthington as licensee of the hotel, a letter informing him that, at the meeting of the appellant held that morning, information was received from the Registrar concerning a number of complaints arising out of the conduct of the business of the hotel. The information presented was attached. The appellant's chairman then said that the appellant having considered the history of management effectiveness and the substance of complaints over the previous few years had decided, pursuant to s.33 of the Liquor Act, to vary the conditions of the licence in certain respects, to issue directions pursuant to s.65 of the Liquor Act and to suspend the licence of the hotel as from close of business on that day.

3. In his affidavit, Mr. Tumminello denied several allegations of misconduct made in the appellant's letter. He also said that, before making the decisions conveyed by the letter, the appellant had not informed the respondent of the substance of the complaints against it and had not given the respondent an opportunity to deal with those matters.

4. On the application made in chambers by counsel on behalf of the respondent, the learned Judge made orders as follows:
   
   

"UPON THE EX-PARTE APPLICATION OF GAYE PTY. LTD, for leave to issue a Writ of Certiorari directed to the Northern Territory Liquor Commission to remove into this Honourable Court and quash orders suspending the liquor licence, giving directions under Section 65 of the Liquor act, and varying the terms of the liquor license in relation to premises known as the Beachfront Hotel, 342 Casuarina Drive, Nightcliff, the said suspension, directions and variations being dated the 7th August 1985 (hereinafter called "the said orders") AND THE COURT being of the opinion that in the circumstances of this case an order absolute for a Writ of Certiorari should be made in the first instance IT IS ORDERED that the said orders be removed into this court and that the Chairman of the said Commission shall forthwith send the said orders or a copy thereof under the hand and seal of the Chairman of the said Commission to the Master of the Supreme Court of the Northern Territory of Australia.

AND IT IS ORDERED that thereupon the said orders be quashed.

AND IT IS FURTHER ORDERED that the Prosecutor and the said Commissioner shall have liberty to apply on 7 days notice."

1. These orders were made pursuant to 0.55 of the Rules of the Supreme Court. By 0.55 r.1, an application for a writ of Certiorari, Mandamus or Prohibition shall be, in the first instance, for an order calling on the parties interested in resisting the application to show cause why the writ should not be issued. However, the rule contains a proviso, which was relied upon by the learned Judge, that the Court or a Judge may in its or his discretion, in any case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for a writ of Certiorari, Mandamus or Prohibition.

2. Before dealing with the substantive aspects of the appeal, it should be noted that when the appeal was called on for hearing, we were informed by counsel for the respondent that it did not wish to contest the appeal and counsel sought leave to withdraw. We were told that the respondent had disposed of its interest in the hotel and that the licensee at the time, Mr. R. Worthington, who should have been a party to the proceedings in the Supreme Court, was an employee of the respondent. Counsel for the appellant also informed us that since the disposition by the respondent of its interest in the hotel, new conditions have attached to the licence now held by another party.

3. Counsel for the appellant also applied for and was granted leave to amend its Notice of Appeal so as to confine its challenge to the order made by the learned Judge quashing the orders made by the appellant. No challenge is made to the order absolute for a writ of Certiorari insofar as it ordered the removal of the order of the appellant into the Supreme Court: it is clear that a writ of Certiorari does involve two distinct steps in this regard (see Re Gray; Ex parte Marsh (1985) 62 ALR 17 per Deane J. at p 43).

4. Counsel for the appellant advanced a number of arguments in support of the appeal. He submitted that, on the true construction of 0.55, in particular, r.13, the learned Judge lacked jurisdiction to make a final order in the form of an order absolute quashing the appellant's orders. Rule 13 reads:
   
   

"13. When cause is not shown against an order nisi for a writ of Certiorari to bring up a judgment or order, or when the order is absolute in the first instance, the applicant shall apply to the Court or a Judge for an order to quash the judgment or order. Such application shall be made upon notice to the parties interested in supporting the judgment or order."

1. In the absence of a contradictor on the point, we do not propose to express a view on this question since the matter can be resolved by reference to another submission made on behalf of the appellant. Assuming, without deciding, that the Rules of Court permitted the grant of an order absolute in the first instance for a writ of Certiorari not only to remove the appellant's orders into the Supreme Court but also to quash those orders, in our opinion, the making of the order to quash denied natural justice to the appellant. The consequence, in our view, is that the order of the Supreme Court quashing the appellant's orders should be set aside.

2. It is "a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case." (per Rich, J. in Cameron v. Cole (1944) 68 CLR 571 at p 589; Taylor v. Taylor (1979) 143 CLR 1).

3. There is no doubt that the appellant was not given an opportunity to be heard before a final order quashing its own orders was made by the learned Judge. It is true that liberty to apply was reserved to the parties. However, that liberty could only be exercised after 7 days' notice had been given. Moreover, even if it be assumed that the liberty to apply extended to an application to discharge the writ of Certiorari, the appellant would be placed in the unenviable position of carrying at least the initial onus of persuading the Supreme Court that a final order should be discharged. Further, no undertaking as to damages was given by the respondent.

4. We think that the order quashing the appellant's orders denied natural justice to the appellant and should be set aside.

5. We should add that it may well have been open to the respondent to seek from the Supreme Court ex parte interim relief in the form of an interlocutory injunction restraining the appellant from acting upon its orders until the hearing of the Supreme Court proceedings or until further order.

6. We make the following orders -
   
   

1. Appeal allowed.

2. Set aside so much of the order of the Supreme Court made on 8 August 1985 as quashed the orders of the appellant made on 7 August 1985.