Liquorland (Australia) Pty Ltd v Director of Liquor Licensing
[2021] WASC 221
•8 JULY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LIQUORLAND (AUSTRALIA) PTY LTD -v- DIRECTOR OF LIQUOR LICENSING [2021] WASC 221
CORAM: ARCHER J
HEARD: 21 JUNE 2021
DELIVERED : 21 JUNE 2021
PUBLISHED : 8 JULY 2021
FILE NO/S: GDA 7 of 2021
BETWEEN: LIQUORLAND (AUSTRALIA) PTY LTD
Appellant
AND
DIRECTOR OF LIQUOR LICENSING
Respondent
Catchwords:
Application for urgent appeal order
Legislation:
Liquor Control Act 1988 (WA), s 36B(4)
Result:
Urgent appeal order made
Category: B
Representation:
Counsel:
| Appellant | : | Mr S M Standing |
| Respondent | : | Mr J M Misso |
Solicitors:
| Appellant | : | Herbert Smith Freehills |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah [2016] WASC 380
ARCHER J:
(This judgment was delivered extemporaneously on 21 June 2021 and has been edited to correct matters of grammar and to include complete references.)
Liquorland (Australia) Pty Ltd seeks an urgent appeal order under O 65 r 14 of the Rules of the Supreme Court 1971. Liquorland has appealed against the refusal of its application for the grant of a liquor store licence for premises in Karrinyup. The application for an expedited hearing is not opposed.
An urgent appeal order is an order that the appeal is an urgent appeal that is to be heard as quickly as practicable consistent with the proper administration of justice.
For the reasons that follow, I have concluded I should make an urgent appeal order.
The decision
On 26 August 2020, a delegate of the Director of Liquor Licensing (Director) refused Liquorland's application for the grant of a liquor store licence for premises in Karrinyup. Liquorland sought a review of the Director's decision by the Liquor Commission of Western Australia (Commission).
On 20 April 2021, the Commission made a decision (Decision) to affirm the decision of the Director.
Under s 36B(4) of the Liquor Control Act 1988 (WA) (Act), the licencing authority[1] must not grant a liquor store licence unless it is satisfied that local packaged liquor requirements cannot reasonably be met by existing packaged liquor premises in the locality in which the proposed licensed premises are, or are to be, situated. Liquorland's application was refused on basis that the Commission was not satisfied of this.
[1] The 'licensing authority' will be either the Director or the Commission, depending on context - see the definition in s 3 of the Act.
Relevant considerations
An application for an urgent appeal order in a civil matter cannot be approached in the same way as an application for an urgent appeal order in a criminal matter, particularly where the appellant in a criminal appeal is in custody. In an application for an urgent appeal order in a civil matter, the court is not concerned with ensuring that those who should not be in custody are not kept in custody any longer than necessary. Nor is the court concerned with the significant impact that wrongful convictions or excessive penalties may have, even if the appellant is not in custody at the time of the appeal.
In Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah,[2] Pritchard J[3] discussed the court's general power to order that an action should proceed to hearing on an urgent basis. In that case, the application for an urgent hearing was opposed. Her Honour said:[4]
In determining whether an action should proceed to trial on an urgent basis, in a case where that course is opposed, it will be necessary for the Court to weigh up the potential for injustice to the plaintiff and to the defendant if an order for an urgent trial is granted, bearing in mind that such an application will result in priority being given to the action in question, as opposed to other matters in the Court's list.
[2] Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah [2016] WASC 380.
[3] As her Honour was then.
[4] Aikman [188].
Having regard to the different context in this case, I consider that the following factors are relevant to whether I should make the urgent appeal order:
1.the apparent merits of the appeal, on a preliminary assessment;
2.the benefits that would flow from an expedited resolution of the question(s) arising in the appeal (including benefits in the sense of avoiding or reducing the detriment that would flow if the appeal was not expedited);
3.any detriments that would flow from an expedited resolution, including any prejudice to any other party (such as an impaired ability to properly prepare the case due to compressed timeframes in programming orders);
4.any delay on the part of the appellant in bringing the application for an urgent appeal order or the appeal itself; and
5.the fact that, and extent to which, an urgent appeal order will have the effect of delaying the hearings of appeals in which such an order has not been made, to the detriment of other litigants.
Apparent merits
Liquorland's draft submissions set out the basis of its contention that the licensing authority misconstrued s 36B(4) of the Act. I have not yet had the benefit of any submissions from a contradictor. However, I am satisfied that Liquorland's submissions are reasonably arguable and do not suffer from any obvious logical flaw. Although I have only conducted a preliminary assessment of the merits of the appeal at this stage, I am satisfied that it has reasonable prospects of success.
Benefits of a swift resolution
Liquorland has one pending application for the grant of a liquor store licence and intends to make three more applications for the grant or removal of liquor store licences in the next three to six months. It has plans to make at least two other liquor store licence applications in Western Australia in the next six to twelve months.[5]
[5] Affidavit of Triska Janelle Di Cicco filed 11 June 2021 (Di Cicco Affidavit) [7].
Plainly, the preparation of those applications, and indeed whether they are made at all, will be affected by the resolution of the appeal.
I have already noted that, on a preliminary assessment of the merits of the appeal, I am satisfied that it has reasonable prospects of success. If the appeal is upheld, applications by Liquorland that had not yet been determined as at the judgment date would not be assessed on the basis of a misconstruction of s 36B(4).
In addition, there are apparently ten applications made by other entities currently before the licencing authority.[6] Again, if the appeal is upheld, any of these that had not been determined at the time of judgment would not be assessed on the basis of a misconstruction of s 36B(4).
[6] Di Cicco Affidavit [9].
I am satisfied that there would be significant benefits to the appellant and to the industry more broadly if the appeal was resolved expeditiously.
Potential detriment if the order is made
The Director does not assert he will suffer any detriment if an urgent appeal order is made, provided he has sufficient time within which to file his submissions.
Is the appellant responsible for any delay?
The Decision was made on 20 April 2021. The appellant filed and served the appeal notice on 10 May 2021. On 11 June 2021, the appellant filed the application for an urgent appeal order, and submissions and an affidavit in support. Attached to the affidavit was an advanced draft of the appellant's submissions in relation to the appeal itself. The appellant seeks orders by which it would file a final version of those submissions within seven days, but I am told the submissions can be filed tomorrow.[7]
[7] Transcript 21 June 2021, page 2.
In my view, in all of the circumstances, the appellant has acted sufficiently promptly.
Jumping the queue
Whenever an urgent appeal order is made, it will have the effect of delaying the hearings of appeals in which such an order has not been made, to the detriment of other litigants.
In this case, the extent of that delay will be limited. The appeal involves a discrete question of statutory construction.
Conclusion
Having regard to all of the factors, I consider that an urgent appeal order should be made. I accept that the order will give this matter priority over other cases in the court's list. However, the benefits of a swift resolution of the appeal are substantial, and extend beyond the parties to this appeal. The appeal has reasonable prospects of success and the appellant has acted with reasonable promptness.
An expedited programming timetable and hearing will not affect the capacity of the parties to have a just hearing. The appeal raises a single question of statutory construction.
Accordingly, I will make an urgent appeal order. This does not mean that the appeal will be prioritised over all other matters. The nature of an urgent appeal order is that the appeal is to be heard as quickly as practicable consistent with the proper administration of justice. The proper administration of justice would not require, for example, the appeal to take precedence over criminal appeals, particularly where the appellant is in custody.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
8 JULY 2021
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