Meagher v Bott and Anor

[1997] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S200 of 1996

B e t w e e n -

ROBERT MICHAEL MEAGHER

Applicant

and

STEVEN FORRESTER BOTT

First Respondent

LICENSING COURT OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 1997, AT 12.00 NOON

Copyright in the High Court of Australia

MR A.G. WHEALY, QC:   If your Honours please, I appear with my learned friend, MR M.J. HEATH, for the applicant.  (instructed by Back Schwartz & Vaughan)

MR I.A.N. LAWRY:  May it please the Court, I appear in this matter for the first respondent.  (instructed by Shaddick Baker & Paull)

KIRBY J:   That was such a nice tribute to read, to you, Mr Whealy, from Justice Clarke.

MR WHEALY:   I did not read it that way myself, your Honour.  However, your Honours, this is a case ‑ ‑ ‑

DAWSON J:   Before you begin, Mr Whealy.  The Deputy Registrar certifies that he has been informed by the Crown Solicitor, solicitor for the second respondent in this matter, that the second respondent does not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court, save as to costs.

Yes, Mr Whealy.

MR WHEALY:   Your Honour, the point at issue here is the construction of section 40 of the New South Wales Liquor Act. May I just say this, that the majority of applications that come before the New South Wales Licensing Court are applications that have to pass through the barrier of section 40. Virtually all of the more important or commercial-type applications that come before the Licensing Court, ipso facto, have to pass that same hurdle. In addition to that, your Honours, we have made an exhaustive examination of the liquor legislation in the other States and Territories and at least in Western Australia, Victoria, South Australia and the Australian Capital Territory, there are comparable provisions. The effect of these provisions, in general, may be said that people who wish to apply for a licence to the Licensing Court or to the Liquor Commission, as the case may be, need to have all town planning and building and other related consents ‑ ‑ ‑

KIRBY J:   It would surely be a matter of scrutinising each piece of legislation, series of legislation ‑ ‑ ‑

MR WHEALY:   Yes, your Honour, true.  I am really saying that it is a matter that extends beyond New South Wales in relation to the general scheme.  It appears to be, at least in general terms, subject to scrutiny of each individual piece of legislation.

KIRBY J:   There seems to be logic in that, but when it comes down, this is the fifth level of this appeal process or hearing process and it is, after all, just the legislation of New South Wales.  It has gone through four levels of the courts in that State and the Court of Appeal in that State has rather discouraged this multiple litigation and it would not seem to raise a matter of general principle of national concern.  So it is pretty hard to ask us to bring this sort of matter up for a fifth hearing.

MR WHEALY:   Your Honour, leaving aside the particular number of appeals, I suppose that could apply to many pieces of litigation that come on a leave application.

KIRBY J:   Rarely more than in the liquor area, because of the interests and the finances involved.  It tends to be a much litigated area.

TOOHEY J:   The question in the end seems to amount to whether the approvals that have been given must be shown to be still current at the time of the application.  Is that over-simplifying it?

MR WHEALY:   No, your Honour, that is not what I perceive the point to be. That certainly did come up in the arguments. We are not seeking special leave in relation to such a broad point as that. We are seeking special leave on this point, whether, on the proper construction of section 40, the necessary approvals must be current at the time of lodgment of the application. That is the sole point that we perceive as being the matter for special leave.

TOOHEY J:   It is a very narrow question of construction, is it not?

MR WHEALY:   It is, indeed, and in our respectful submission, the language of the section is absolutely clear.  The scheme of the Act is absolutely clear, and it would be an affront to common sense to think that all of these investigatory bodies, such as the Licensing Courts and Commissions, are to embark upon lengthy and costly proceedings where the consents, which the section plainly requires be held, have long expired and are of no force or effect.  That is the point and it is that affront to common sense and logic that we respectfully submit is the simple point of construction.

The three judges in the Court of Appeal divided.  Justice Handley, of course, took the view that the consents did have to be current at the date of lodgment.  Justice Clarke said they did not.  He said the section was silent about whether they needed to be current.  Justice Cole took the view that yes, they had to be current, but if there were a letter from the council saying they were current, then the Licensing Court should not inquire further into the matter.  Now, the problem with that last approach, in my respectful submission, is what is the position if there is nothing from the council one way or the other, or what is the position if there is a mischievous opinion expressed by a council when the plain facts of the matter show, for example, that not only was the consent current but the particular building had been constructed and was occupied at the relevant time.  On Justice Cole’s view, it would not be possible for the Licensing Court to inquire into that simple matrix of facts, but they must be bound by what is placed before them.

As to Justice Clarke’s view, we would respectfully submit that the language of section 40 which, your Honours, is set out in its entirety at page 49 of the material book, at page 50 makes it clear that an application may be made conditionally if there is lodged with the application what is described as an “approved plan”. An “approved plan” is defined in subsection (6) on page 50 and it is defined as meaning:

a plan.....that is accompanied by:

(a)  each approval that.....is required for the carrying out of any work represented by the plan;

Now, in our respectful submission, if one files an expired consent, it could not be said that that plan is accompanied by a consent which enables the carrying out of the work.  It does not enable the carrying out of the work.  It would answer precisely the opposite description. 

So, your Honours, the two points are quite short, based upon the views expressed in the Court of Appeal.  We do respectfully submit they are important points.  True it is, it is only the Liquor Act in New South Wales and true it is, as Justice Kirby says, that that forum has, in the past, tended to lend itself to multiple appeals, but this is an important point, in my respectful submission.  Unless it is corrected - and prima facie it appears to be wrong, with great respect - the position will become more complicated and lead to further appeals.  For example, local councils are parties to many Liquor Act applications.  For reasons, political and otherwise, they are often opposed to Liquor Act applications.  To put within their power the capacity to certify to bring an application to an end, in circumstances where a simple factual inquiry will show that it is not so, is not contemplated by this legislation.

KIRBY J:   I can see the logic of your construction and I can see the force of the arguments that you put, but the fact is that this is a New South Wales

Act, it has gone through the whole process four times in the New South Wales courts.  If there is a doubt about the matter, and the logic that you put forward has force, is not the correct way for your view to be maintained to get the Parliament to make it absolutely clear and to require it in terms that you have to deposit the plan approval with the application.  I mean, it would be a very simple piece of legislative amendment.  Is that not the correct way to deal with the problem, rather than asking this Court, at a fifth level, to go back and revisit this New South Wales statute.

MR WHEALY:   I imagine the New South Wales Parliament would say, your Honour, however, that they have done just that.  I mean, the second reading speech about this legislation, which only came into force in 1990, said precisely that, that applicants must have all their consents before they come to the Licensing Court.  The point at issue here is the Court of Appeal by majority have said it does not matter if they are dead consents, if they have expired.  It matters not at all.  In my respectful submission, the legislation as it is presently framed is quite clear and this is an appropriate vehicle to clarify that in a rather simple appeal.  If the Court pleases.

DAWSON J:   Thank you, Mr Whealy.  We need not trouble you, Mr Lawry.

This application turns on the meaning of section 40 of the Liquor Act 1982 (NSW). The construction of that provision involves no point of principle of sufficient importance to warrant the grant of special leave. Special leave is accordingly refused.

MR LAWRY:   We seek costs, if the Court pleases.

DAWSON J:   Can you say anything about that, Mr Whealy?

MR WHEALY:   No.

DAWSON J:   It is refused with costs.

AT 12.09 PM THE MATTER WAS CONCLUDED