Northbridge Enterprises Pty Ltd v Commissioner of Police
[2014] WASC 135
•14/04/14
NORTHBRIDGE ENTERPRISES PTY LTD -v- COMMISSIONER OF POLICE [2014] WASC 135
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 135 | |
| Case No: | GDA:16/2013 | 11 APRIL 2014 | |
| Coram: | EDELMAN J | 14/04/14 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 1, 2, 3, 4, 5, 6 Appeal allowed on grounds 1, 2, 3, 4, 5, 6 Leave to appeal granted on ground 7 Appeal dismissed on ground 7 | ||
| A | |||
| PDF Version |
| Parties: | NORTHBRIDGE ENTERPRISES PTY LTD COMMISSIONER OF POLICE |
Catchwords: | Liquor licensing Review of successful application for extended trading permit Whether reasons of the Liquor Commission for imposition of those additional conditions had an evidential foundation and were based on a rational process of reasoning: [42] [75] Whether procedural fairness afforded to applicant when additional conditions imposed that had not been expressly raised with the applicant: [76] [93] Whether denial of procedural fairness would have made a difference to the outcome: [94] [105] Whether Liquor Commission had jurisdiction to hear an application for review brought by a party who was an intervenor before the Director: [106] [131] |
Legislation: | Liquor Control Act 1988 (WA) |
Case References: | Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 Esso Australia Resources Pty Ltd v Commissioner of Taxation (Cth) [2011] FCA 360; (2011) 194 FCR 32 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 Hancock v Executive Director of Public Health [2008] WASC 224 Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356 Kelly v R [2004] HCA 12; (2004) 218 CLR 216 Lamb v Brisbane City Council [2007] QCA 149; [2007] 2 Qd R 538 Marku v Republic of Albania [2013] FCAFC 51; (2013) 212 FCR 50 McKay v Commissioner of Main Roads [2013] WASCA 135 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration, Local Government and Ethnic Affairs v Passhmforoosh (Unreported, FCA, 28 June 1989) Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 Pallot & Ors v Harrison (Unreported, WASC, Library No 950261, 12 May 1995) R v Chancellor of Cambridge, Ex P Bentley (1723) 1 Str 557; (1723) 93 ER 698 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60; (2003) 201 ALR 437 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 Woolworths v Commissioner of Police [2013] WASC 413 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NORTHBRIDGE ENTERPRISES PTY LTD -v- COMMISSIONER OF POLICE [2014] WASC 135 CORAM : EDELMAN J HEARD : 11 APRIL 2014 DELIVERED : 14 APRIL 2014 FILE NO/S : GDA 16 of 2013 BETWEEN : NORTHBRIDGE ENTERPRISES PTY LTD
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram : MR J FREMANTLE (CHAIRPERSON)
- MR S RAFFERTY (DEPUTY CHAIRPERSON)
MR E WATLING (MEMBER)
File No : LC 34 of 2013
Catchwords:
Liquor licensing - Review of successful application for extended trading permit - Whether reasons of the Liquor Commission for imposition of those additional conditions had an evidential foundation and were based on a rational process of reasoning: [42] - [75] - Whether procedural fairness afforded to applicant when additional conditions imposed that had not been expressly raised with the applicant: [76] - [93] - Whether denial of procedural fairness would have made a difference to the outcome: [94] - [105] - Whether Liquor Commission had jurisdiction to hear an application for review brought by a party who was an intervenor before the Director: [106] - [131]
Legislation:
Liquor Control Act 1988 (WA)
Result:
Leave to appeal granted on grounds 1, 2, 3, 4, 5, 6
Appeal allowed on grounds 1, 2, 3, 4, 5, 6
Leave to appeal granted on ground 7
Appeal dismissed on ground 7
Category: A
Representation:
Counsel:
Applicant : Mr M Solomon SC
Respondent : Mr D Leigh
Solicitors:
Applicant : Dwyer Durack
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186
Esso Australia Resources Pty Ltd v Commissioner of Taxation (Cth) [2011] FCA 360; (2011) 194 FCR 32
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628
Hancock v Executive Director of Public Health [2008] WASC 224
Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356
Kelly v R [2004] HCA 12; (2004) 218 CLR 216
Lamb v Brisbane City Council [2007] QCA 149; [2007] 2 Qd R 538
Marku v Republic of Albania [2013] FCAFC 51; (2013) 212 FCR 50
McKay v Commissioner of Main Roads [2013] WASCA 135
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration, Local Government and Ethnic Affairs v Passhmforoosh (Unreported, FCA, 28 June 1989)
Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
Pallot & Ors v Harrison (Unreported, WASC, Library No 950261, 12 May 1995)
R v Chancellor of Cambridge, Ex P Bentley (1723) 1 Str 557; (1723) 93 ER 698
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60; (2003) 201 ALR 437
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227
Woolworths v Commissioner of Police [2013] WASC 413
Table of Contents
Introduction 5
Background 6
The review application before the Liquor Commission 7
The decision of the Liquor Commission 10
Principles on appeal 12
The grounds of appeal 13
(1) Was the decision of the Liquor Commission based on an evidential foundation and a
rational process of reasoning? 14
(2) Was Northbridge Enterprises denied procedural fairness? 21
Could the denial of procedural fairness affect the outcome of the proceedings? 25
(3) Did the Liquor Commission have power to conduct a review hearing? 27
Conclusion 31
Introduction
1 In Genesis 3:11, God said to Adam 'Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?'
2 Some judges of the 17th and 18th centuries referred to this passage and the theological puzzle arising from it: why would the omniscient God ask this question to which He knew the answer? One answer, as Fortescue J observed in Dr Bentley's famous mandamus action against the University of Cambridge, is procedural fairness or 'natural' justice. The point is that despite God's omniscience '[He] did not pass sentence upon Adam, before he was called upon to make his defence'.1
3 Australian law recognises that prerogative writs will not issue for a denial of procedural fairness if there is no possibility of a different outcome. But the opportunity to be heard is nevertheless an essential aspect of justice according to law.
4 This appeal, which is akin to judicial review, is from a decision of the Liquor Licensing Commission after application by the Commissioner of Police (the Police). The Police applied to the Liquor Commission for review of a decision by the Director of Liquor Licensing to grant an extended trading permit to Northbridge Enterprises in relation to the Deen hotel in Northbridge. The extended trading permit had been granted on the same terms as Northbridge Enterprises had enjoyed for the previous five years. The terms of the extended trading permit had been an issue before the Director. The Director granted the permit on the same terms as Northbridge Enterprises had previously enjoyed. The review application was brought, and argued, on the basis that if the findings of the Director concerning alcohol-related harm were maintained then it was not open for the extended trading permit to be granted. There was no argument, and no submission, that the permit might be granted, but on different terms. At the oral hearing, the Deputy Chairperson of the Commission succinctly summarised the 'real issue' in terms which did not include the possibility of a grant of the permit on different terms. The decision of the Liquor Commission to grant the permit on different terms involved a denial of procedural fairness. The appeal should be allowed on this ground.
5 As senior counsel for Northbridge Enterprises submitted on this appeal, if the issue about the terms to be imposed on the extended trading permit had been live before the Commission then substantial submissions would have been made in relation to causation issues concerning to the additional conditions that were subsequently imposed. Counsel for the Police, whose submissions succinctly distilled around 1,500 pages of material, properly conceded that due to these causation matters the conditions as a whole could not be supported on the evidence before the Liquor Commission for the reasons it gave. Consequently, the reasons of the Commission, which did not address this point of causation, lacked a rational process of reasoning. The appeal must be allowed also on these grounds.
6 In an eleventh hour additional ground, Northbridge Enterprises also argued that the Police had no power to bring a review application because that power is limited to 'parties to proceedings' rather than intervenors. This is a novel argument. It has never been made in this Court although reviews have, for some years, been brought before the Liquor Commission by intervenors before the Director. Novelty is not a sufficient argument against a particular construction of legislation. But this appeal ground is based on an erroneous construction of the Liquor Control Act 1988 (WA). Although, acknowledging some force to the reasoning of senior counsel for Northbridge Enterprises, I would grant leave to appeal on this ground, this ground must be dismissed.
7 Leave to appeal is granted on grounds 1 to 6, and the appeal allowed on those grounds.
Background
8 On 11 May 2012, Northbridge Enterprises applied to the Director of Liquor Licensing for an extended trading permit for the sale and supply of liquor for consumption in premises in Northbridge known as the Deen Hotel.2 There was evidence before the Director that the Deen Hotel catered for more than 1,400 people.3
9 The extended hours in the permit sought by Northbridge Enterprises were identical to those which it had enjoyed since 2007.4 Those hours were as follows.5
(i) Monday midnight (ie on Monday immediately before midnight) to 2 am the next morning in zones 1, 2 and 4 of the premises as depicted on the approved floor plans.
(ii) Wednesday midnight to 1 am the next morning in the whole of the premises.
(iii) Thursday midnight to 2 am the next morning in the whole of the premises.
(iv) Friday midnight to 2 am the next morning in the whole of the premises.
(v) Saturday midnight to 2 am the next morning in the whole of the premises.
10 The Police and the Executive Director of Public Health intervened in the application under s 69(c)(ii) and s 69(c)(iv) of the Liquor Control Act.There were also a number of other objectors.
11 On 5 March 2013, the Director of Liquor Licensing granted the extended trading permit to Northbridge Enterprises under s 60(4)(g) of the Liquor Control Act. The permit was from 5 March 2013 until 4 March 2018. The delegate of the Director gave substantial written reasons for the decision.
12 On 22 March 2013, the Police applied to the Liquor Commission under s 25 of the Liquor Control Act6to review the decision of the Director of Liquor Licensing.
The review application before the Liquor Commission
13 An application to the Liquor Commission for review of a decision of the Director is not an appeal in the strict sense. It involves a rehearing on the merits:7
[W]hen it is conducting a review of a decision made by the Director, it is not constrained by a finding of error on the part of the Director, but is to undertake a full review of the materials before the Director, and to make its own determination on the basis of those materials. In a case in which the Director has conducted a hearing, the Commission will no doubt give appropriate weight to the forensic benefits derived by the Director from having seen and heard witnesses give evidence.
14 Although the review application is by way of rehearing, the Liquor Commission may have regard only to the material that was before the Director when making the decision.8 In this case, the material was voluminous. The Commission was provided with more than 1,500 pages of evidence and submissions that were before the Director of Liquor Licensing.
15 In written submissions before the Liquor Commission, counsel for Northbridge Enterprises correctly submitted that the Commission is not bound by findings of fact made by the Director of Liquor Licensing. But, as counsel for Northbridge Enterprises submitted before the Commission, '[i]t has…become the practice of the Commission to require an applicant to identify the grounds of review. In the present case the Police has alleged errors made on the part of the decision maker at first instance'.9
16 As the Liquor Commission explained,10 and later reiterated,11 the Police had brought the application for review 'of the decision of the Director to grant the [extended trading permit]' (emphasis added).
17 The Commission explained the basis of the application for the review of the decision to grant the application was that it was not open to the Director to grant the application, so the grant amounted to a jurisdictional error. This was said to be because of the findings 'that there was already an unacceptable level of harm occurring in Northbridge, that the premises contributed to that harm; and that the grant of the application would lead to an increase in the harm'.12
18 Counsel for Northbridge Enterprises opened his submissions before the Liquor Commission by saying that his submissions would be concerned with whether there is 'a public interest in renewing this extended trading permit', and that this was not a case where there was unacceptable risk 'in the context of renewing this existing permit' (emphasis added).13
19 The Liquor Commission, in its reasons, summarised the submissions made before the Commission by the Police and by Northbridge Enterprises.
20 The Police had submitted that it was not in the public interest to grant the application because14
the level of evidence before the licensing authority explicitly shows that there is currently a serious level of alcohol-related harm occurring in Northbridge with a sizeable level of alcohol-related harm occurring within and outside the premises during the trading hours of the [extended trading permit].
21 The submissions of Northbridge Enterprises also understood the position of the Police as one which challenged the grant of the permit. Northbridge Enterprises said in its written submissions that the submission of the Police was that 'it was not open to the Director, on the proper construction of the Act, to grant the application'.15
22 The submissions of Northbridge Enterprises in response were also summarised by the Commission including the submissions by Northbridge Enterprises that
(i) findings in 2010 about the unacceptably high level of alcohol-related violence in Northbridge were not relevant, and
(ii) that a significant number of persons who socialise in Northbridge do not arrive until after 9 pm.16
23 It became clear during the hearing before the Liquor Commission that the broader questions of public interest were not matters that Northbridge Enterprises was required to address. As the Deputy Chairperson of the Commission clearly put it to counsel for Northbridge Enterprises, 'I don't think you have to address us ... in relation to the question of public interest. Everything that is put against you is in relation to the question of harm'.17 The Deputy Chairperson later explained that the 'real issue' was raised by two paragraphs in the submissions by counsel for the Police. That 'real issue' against Northbridge Enterprises was put as follows.18
[Is it] open to the Commission to conclude that the existing level of harm in Northbridge is unacceptable such that no further increase can be tolerated or, alternatively, ... [is it] open to the Commission to conclude that the level of existing alcohol-related harm in Northbridge is not acceptable but if increased to the already high level of harm represented by the grant of the [extended trading permit] in this case would be unacceptable.
24 Counsel for Northbridge Enterprises accepted that this was the real issue.19
25 There were no questions asked by any member of the Liquor Commission, and no oral submissions made, concerning whether the extended trading permit should be granted but on different conditions requiring earlier closing hours.
26 There was discussion of 'lockout', but almost in passing. That exchange occurred when the Chairperson asked counsel for Northbridge Enterprises about the general progression of patrons between the peak numbers of patrons at 10:30 to 11:30 pm, and 2 am. This question was prefaced by the statement from the Chairperson that he might be 'sailing a bit close to the wind ... in terms of new evidence'.20 Counsel for Northbridge Enterprises explained that by 1 am the patrons start leaving and that they had always had a voluntary lockout at 1 am.21
The decision of the Liquor Commission
27 The Liquor Commission considered the proceedings before the Director of Liquor Licensing and also the submissions by the Police and by Northbridge Enterprises. The Commission reached the following conclusions in the section of its reasons entitled 'determination'.
(i) Northbridge experiences high levels of alcohol-related harm.22
(ii) Incidents involving violence in Northbridge have been reducing for a number of reasons including police presence.23
(iii) Northbridge Enterprises has a history of taking initiatives to minimise alcohol-related harm in and around the premises,24 and the statistics are not sufficient to come to the conclusion that the premises is the location of a large number of offences.25
(iv) No real weight could be given to the submission that extended hours in the premises provided entertainment for hospitality staff who ceased work late in the evening.26
(v) The premises do not fill any significant role in the promotion of tourism.27
(vi) The residential objections have little weight.28
(vii) There was substance to a report that concluded that even if all Northbridge's venues closed at midnight most would find an alternative precinct.29
28 The Commission ultimately concluded that Northbridge is a premier entertainment area of the City and there is substantial public interest in grant of this application to cater for the uncontroverted consumer requirement satisfied by this licensed premises.30
29 However, the Liquor Commission varied the terms of the permit. The Commission reduced the permitted trading hours on Monday, Thursday, Friday and Saturday from a concluding time at 2 am to a concluding time at 1 am with a lockout commencing 45 minutes before closing time. In these reasons I refer to these further reductions in trading hours and the lockout condition as the further conditions or as the further restrictions.
30 Two key paragraphs of the Liquor Commission's decision in this respect are as follows:
75 On weighing up the evidence led by the parties, the Commission gave greater weight to the positive aspects of the application. However, the Commission is of the view that in order to mitigate any potential for unacceptable harm and loss of amenity, further condition and some curtailment of hours is warranted.
76 In its determination Australian Leisure and Hospitality Group Limited v Executive Director Public Health and Others (LC 31/2010), the Commission granted an ETP [extended trading permit] to the licensee of the Brass Monkey, a relatively large hotel situated in the vicinity of the respondent's premises. The Commission has decided to set the closing time and lockout period such that the discharge of a large number of patrons simultaneously from large premises is, as far as possible, avoided thus mitigating the number of people on the streets in the area and relieving some of the pressure on transport for patrons in the early hours of the morning. The following conditions are therefore varied on the permit:
1) The permitted trading hours under the permit are Monday to Saturday inclusive: 12:00 am to 1:00 am in the whole of the premises.
2) A lockout commencing 45 minutes before closing time under the permit will be imposed.
All other conditions imposed by the Director on the permit remain unchanged.
Principles on appeal
32 An appeal to this Court from a decision of the Liquor Commission can only be brought on a ground of law.32
33 Despite the statutory description of the proceedings in this Court as an 'appeal' on a ground of law, the proceedings are properly to be understood as in the nature of judicial review.33 One of the common grounds of judicial review is a denial of procedural fairness. The Liquor Commission is bound to observe the requirements of procedural fairness.34
34 On an appeal on a ground of law, this Court can make orders, including incidental orders, to
(a) affirm, vary or quash the decision appealed against;
(b) make any decision that the Commission could have made instead of the decision appealed against; or
(c) send the decision back to the Commission for reconsideration in accordance with any directions or recommendations that the Court considers appropriate.35
35 These powers must be exercised with restraint; otherwise 'a question of law would open the door to an appeal by way of rehearing'.36 The 'well settled'37 principles of restraint in proceedings involving judicial review, or 'appeals' in the nature of judicial review, include principles that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the decision maker, and that the reasons for the decision under review should not be 'construed minutely and finely with an eye keenly attuned to the perception of error'.38
The grounds of appeal
36 Northbridge Enterprises has seven grounds of appeal. I have divided them into four groups.
37 The first group of appeal grounds concerns grounds 1, 3, 4, and 6. Ground 1 is not an independent ground of appeal although I will treat it collectively with grounds 3, 4, and 6. Grounds 3, 4, and 6 are, to some degree, overlapping and need not be set out in full. Those grounds are essentially that the conclusion of the Liquor Commission lacked a manifest rational justification.
38 The second type of appeal ground is ground 5 which alleges an error of law by the Liquor Commission because it reached its conclusion on a basis for which there was no evidentiary foundation.
39 The third type of appeal ground is ground 2 which is concerned with procedural fairness. It essentially alleges that the Liquor Commission denied Northbridge Enterprises procedural fairness by failing to provide it with the opportunity to present its position on the very matter upon which the Liquor Commission based its decision.
40 The fourth type of appeal ground is ground 7, which was added on the evening before the appeal. It essentially alleges that the Liquor Commission was not empowered to conduct a review hearing and make a determination because (i) the right to apply for a review of the Liquor Commission's decision is limited by s 25(1) of the Liquor Control Act to 'a person who is a party to proceedings', and (ii) the definition of 'party to proceedings' in s 3 does not include an intervenor 'in relation to any review of a determination made by the Director'.
41 I deal with each of these four categories of appeal ground below. Consistently with the manner in which the appeal was argued I have considered the grounds concerned with the rational process of reasoning (1, 3, 4, and 6) together with the ground concerned with a lack of an evidential foundation for the conclusions of the Liquor Commission (ground 5).
(1) Was the decision of the Liquor Commission based on an evidential foundation and a rational process of reasoning?
42 Although the grounds concerned with the rational process of reasoning (1, 3, 4, and 6) were generally considered in submissions together with the ground concerned with a lack of an evidential foundation for the conclusions of the Liquor Commission (ground 5) they involve distinct issues.
43 In Australian Broadcasting Tribunal v Bond,39 Mason CJ quoted from the decision of Davies, Burchett and Lee JJ in Minister for Immigration, Local Government and Ethnic Affairs v Passhmforoosh.40 His Honour's remarks were concerned with the Administrative Decisions (Judicial Review) Act 1977 (Cth) but they are equally applicable to the 'appeals' in the nature of judicial review:
[D]ecisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision ... .
44 As to the former ground, which is concerned with insufficient support in reason, it is well established that, as Martin CJ explained in Hancock v Executive Director of Public Health:41
while the specific content of the reasons required must, of course, depend upon the circumstances of the particular case, the reasons must show both the parties and an appeal court why a decision was made in a particular way ... unless it is apparent on the face of the reasons why the decision maker arrived at their conclusion, the entire process can be called into question.
45 In the circumstances of the Liquor Commission, however, the nature and extent of this obligation is shaped by s 16 of the Liquor Control Act including the obligation to act as speedily and with as little formality and technicality as is practicable (s 16(7)(c)).
46 The second ground, lack of evidentiary foundation, overlaps in this case because the lack of an evidentiary foundation about which complaint was made by Northbridge Enterprises concerned the evidentiary foundation for the Liquor Commission's conclusion to impose the further restrictions for the reasons it gave.
47 Senior counsel for Northbridge Enterprises focused upon the words of par 76 of the decision of the Liquor Commission. In that paragraph the Liquor Commission explained that it had chosen to impose the additional restrictions on the extended trading permit 'such that' the discharge of a large number of patrons simultaneously from large premises is avoided as far as possible. The Liquor Commission observed that this would mitigate the number of people on the streets in the area and relieve some of the pressure on transport for patrons in the early hours of the morning.
48 The references to (i) mitigating the number of people on the streets, and (ii) relieving pressure on transport are disjunctive. And the reference to mitigating the number of people on the streets involves an implicit finding by the Commission that harm is caused by large numbers of people on the streets at the closing time of the premises.
49 This is clear when the reasons of the Liquor Commission are read in context. In particular, in the immediately preceding paragraph, par 75, the Liquor Commission said that further conditions and some curtailment of hours is warranted 'in order to mitigate any potential for unacceptable harm and loss of amenity'. The unacceptable harm to which the Commission was referring was not merely the pressure on public transport which had not even been mentioned prior to par 76. The Commission's reference to unacceptable harm, and its later reference to the number of people on the streets, must be understood in light of the substantial part of the Commission's earlier reasons which had been devoted to a discussion of alcohol-related harm in Northbridge.
50 From its implicit findings that there was unacceptable harm and pressure on transport arising from the number of people on the streets the Liquor Commission then concluded that earlier closing hours and lockout would mitigate any potential for unacceptable harm and loss of amenity.
51 There was evidence and reasoning from the Liquor Commission which supported a conclusion that further conditions be imposed for these two reasons concerning harm and loss of amenity. Eight points can be made.
52 First, the Liquor Commission iterated,42 and reiterated,43 that its considerations of harm extended beyond the premises itself.
53 Secondly,the Liquor Commission explained that Northbridge experiences high levels of alcohol-related harm,44 although explaining that this does not automatically mean that a permit should be refused.45
54 Thirdly,the Liquor Commission reiterated discussion from an earlier decision, to which Northbridge Enterprises had referred,46 concerning 'the high density of licensed premises, catering for a variety of consumer demands, in a relatively small locality, which, when mixed with a large influx of patrons late at night leads to the inevitable increase in anti-social behaviour and alcohol-related problems'.47
55 In other words, one of the factors in the increase in anti-social behaviour was said to be the large influx of patrons late at night.
56 Fourthly, the Liquor Commission referred to the Police submission that the '[Magill] report illustrates there is a significant level of alcohol-related crime in Northbridge and the hours between midnight and 3:00 am is by a substantial margin the period of highest incidence'.48
57 The reference to the Magill report was a reference to a memorandum provided to the Director by Senior Constable Magill from the Liquor Enforcement Unit. In that memorandum, Senior Constable Magill observed that 266 of the 501 alcohol-related offences over a year ending in May 2012 occurred between the hours of midnight and 3 am. Those offences included sexual assault, domestic assault, assault, robbery, theft, damage to property, possession of drugs, and graffiti. By far the most common offence was assault which involved 178 instances between midnight and 3 am.49
58 The Magill report also provided IMS statistics where the location of the offence was the Deen hotel. According to the summary of the IMS statistics in the Magill report, between 1 June 2010 and 31 May 2012 there were 70 offences outside the venue and 87 offences inside the venue.50 The offences included 15 assaults outside the venue and 25 inside the venue, and 7 assaults occasioning bodily harm outside the venue and 33 inside the venue.51
59 The Liquor Commission said that it 'exercised caution in accepting the submission by the Police that statistics derived from IMS reports demonstrate alcohol-related harm in and around the premises'. The reason for caution was because a detailed analysis showed that 'the reports are not sufficient to come to the conclusion that this premises is the location of a large number of offences'.52
60 In summary of this fourth matter, although the number of offences in and around the Deen was not considered to be large, the Liquor Commission did accept the existence of alcohol-related harm in and around the premises.
61 Fifthly, the Liquor Commission referred to an extended trading permit granted to the Brass Monkey, a relatively large hotel in the vicinity of the Deen.53
62 The terms of the Brass Monkey extended trading permit were described in an annexure to the submissions from Northbridge Enterprises before the Liquor Commission and also in the decision to which the Liquor Commission referred.54 Closing hours for the Brass Monkey was 2 am following Friday and Saturday evenings.
63 Sixthly,the Liquor Commission 'gave weight' to the submission that as a result of 'conditions imposed by the Director of Liquor Licensing in 2011,55 additional harm minimisation strategies are employed by the other licensed venues in Northbridge and it is not unrealistic to expect that alcohol-related harm will continue to decline'.56
64 When the issue was before the Director of Liquor Licensing, Northbridge Enterprises had itself referred to these 2011 conditions imposed by the Director which involved imposed lockouts on all licensed premises. The lockout prohibited persons entering or re-entering the premises within 30 minutes of close of trade.57 Northbridge Enterprises accepted that these restrictions had assisted in the reduction in anti-social behaviour.58
65 Seventhly, as to evidence before the Liquor Commission concerning alcohol-related problems in Northbridge, the evidence included a report from the Patterson Research Group entitled 'Northbridge Nightlife Patron Survey'. That report involved an analysis of a survey of patrons of premises in Northbridge including the Deen.
66 The report contained a conclusion that 82% of the Deen's late night patrons (ie after 11 pm) would move their entertainment to another venue if the Deen closed at midnight.59 It is not clear from the conclusion, or the question asked in the survey, whether 'another venue' meant another venue in Northbridge or whether some of this 82% would disburse beyond Northbridge. There was an earlier question that asked late night patrons what other venues they attended after 11pm on their last night out in Northbridge. A significant number referred to venues outside Northbridge including Burswood Casino (10%), Metropolis Fremantle (5%), Subiaco/Leederville (3%).60
67 In submissions before the Director, which were also before the Liquor Commission, the Executive Director of Public Health asserted that the 18% of late night patrons who would not move to any other venue at all would equate to 540 fewer people drinking during high risk times for harm.61 This might overstate the number because the calculation was based upon an estimate by Northbridge Enterprises that up to 3,000 patrons would pass through the doors of the Deen on a busy night.62 This estimate appears to have been for the entire night, not just the late night patrons.
68 Eighthly,the finding of the Liquor Commission that there was pressure on transport for patrons in the early hours of the morning was supported by evidence before the Commission, although this was not expressly referred to by the Commission.
69 There was evidence from the Patterson Research Group report, provided by Northbridge Enterprises, that:
(i) most patrons arrive by taxi or public transport;63
(ii) 56% of Northbridge patrons leave after 2 am and the overwhelming majority of those persons leaving Northbridge did so by taxi;64
(iii) 63% of persons who were patrons of the Deen (with capacity in excess of 1,400 people) departed Northbridge after 2 am on the last occasion they were in Northbridge and 66% of those leaving the Deen did so by taxi;65 and
(iv) 39% of patrons of the Deen went home between 2 am and 3 am, which was the departure time for the largest percentage of patrons.66
70 In addition, there was evidence that the lack of availability of taxis led to frustration and anti-social behaviour and that this might be mitigated by different trading hours of licensed venues. In particular, this appears from the following evidence provided by Northbridge Enterprises:
(i) Istvan Toke, the Managing Director of Supreme Security, said that '[a]llowing licensed premises to trade for different periods, is one way of helping to spread out the demand and reducing the number of persons on the streets and diffusing frustration and waiting times by consumers';67
(ii) Mehran Nouri, a crowd controller, described the problem of the availability of taxis in Northbridge and suggested that varying the trading hours of licensed venues would help to alleviate this problem;68 and
(iii) Brody Stein, a long haul truck driver, described the frustration in Northbridge arising from limited taxi services.69
71 These eight matters support the evidential foundation for the imposition of further conditions and provide a basis for an appreciation of the reasons for the imposition of further conditions. But, based on the Liquor Commission's reasons, there was no evidential foundation, and hence no rational basis, for the particular further conditions imposed.
72 It was common ground on this appeal that these grounds of appeal should be allowed for this reason. What was missing in the evidence was a basis for a causal link between the Liquor Commission's concerns about harm and loss of amenity and the particular conditions that were imposed.
73 The causal link between alcohol-related harm and pressure on transport was asserted by the Liquor Commission in its reference to the simultaneous discharge of a large number of patrons on to the streets from the Deen and the Brass Monkey hotels. But, on the additional conditions which were imposed, that simultaneous discharge only occurred on the trading nights which began on Friday and Saturday. As I have explained, on Monday, Tuesday, and Thursday, the Brass Monkey had closing hours at 1 am the following morning. The imposition of the further restrictions would align the closing hours following trade on Monday, Tuesday, and Thursday for the Brass Monkey and the Deen. This alignment would increase the number of patrons from those two premises being discharged on to the streets simultaneously.
74 It was common ground, and I accept, that the reasoning of the Liquor Commission, and the underlying evidence, needed to support the conditions as a whole. The conditions were a 'package'. The appeal must be allowed due to the failure of any evidential basis, and hence the rationality of the Liquor Commission's reasoning, for how the particular further conditions would reduce the number of people discharged simultaneously, particularly on the trading nights commencing on Monday, Tuesday, and Thursday.
75 Leave to appeal on these grounds of appeal is granted and each of these grounds is allowed.
(2) Was Northbridge Enterprises denied procedural fairness?
76 Section 16(11) of the Liquor Control Act provides that subject to exceptions which are not relevant to this case,
the licensing authority shall ensure that each party to a proceeding before it is given a reasonable opportunity to present its case and, in particular, to inspect any documents to which the licensing authority proposes to have regard in making a determination in the proceedings and to make submissions in relation to those documents.
77 The content of this statutory requirement of a 'reasonable opportunity to present its case' will vary according to the circumstances of each case before the licensing authority. But the common law decisions concerning the principles of procedural fairness provide some assistance in establishing the contours of the principle to apply to those circumstances.
78 The underlying contours of the procedural fairness requirement of an opportunity to be heard are sometimes expressed by examples. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002,70 Gummow and Heydon JJ gave the example of a judge who stops counsel in the middle of a submission on a matter of fact. Their Honours said that counsel can safely assume that the submission will be accepted unless notice to the contrary is given. As their Honours explained, if the judge later rejects the submission then procedural fairness will have been denied and an appeal will succeed unless it is shown that a properly conducted trial could not possibly have produced a different result.
79 This appeal is probably one step removed from that example although the example is analogous. The Liquor Commission did not positively prevent counsel from making any submissions about factual matters concerning terms of the permit such as earlier closing hours or lockout. But at the oral hearing the attention of counsel was directed to the 'real issue' between the parties which concerned whether the permit should be granted at all. Counsel would reasonably have understood that the focus of the Commission was upon the grant of the permit and oral submissions would have been, and were, tailored accordingly.
80 Moving from illustration by way of example to statement of principle, the waters become less clear. In McKay v Commissioner of Main Roads71Murphy JA (Martin CJ and Buss JA agreeing) explained, as is well accepted, that the principles of procedural fairness 'ultimately involve matters of degree and judgment' and that these principles are not 'susceptible to hard and fast rules'. His Honour also quoted from the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,72 that there are two qualifications to the proposition that a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case are as follows (citations omitted):
(i) The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it ...
(ii) The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material.
81 His Honour also explained that73
procedural fairness may require the judge to hear the parties further if certain matters emerge in the judge's consideration of the case after trial which the judge regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial.
82 At a higher level of generality, these considerations set out by Murphy JA might be seen to inform a 'fundamental principle' where rules of procedural fairness apply. The High Court explained in a joint judgment in Szbel v Minister for Immigration and Multicultural and Indigenous Affairs,74that this 'fundamental principle' will 'ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material'.
83 This 'fundamental principle' that a person be put on notice of potential adverse findings has also been applied in the statutory context of this case involving review proceedings by the Liquor Commission.75
84 Although the issues are often expressed as being questions of fact and degree, and although it is often said that no hard and fast rules can be prescribed one useful test to determine whether the affected party was given the opportunity of ascertaining the relevant issue and informed of the nature and content of adverse material might be to ask the following question: would a reasonable person in the position of the aggrieved party have anticipated the possibility of an adverse decision on that issue? Much may depend on the 'issue' that should be anticipated. The 'issue' should not be too finely characterised. In this case the issue should be characterised in terms which directly reflect the orders made. The issue was whether the conditions of the extended trading permit as issued by the Director would be varied.
85 On the one hand, the following matters militated against a need for the Liquor Commission to give notice to Northbridge Enterprises of the possibility of an adverse finding in relation to the conditions to be imposed on the extended trading permit.
(i) As Northbridge Enterprises knew, the Liquor Commission was not bound by the findings of the Director, and the Commission had the power to impose conditions on the extended trading permit.
(ii) There were documents and materials before the Director of Liquor Licensing which raised the possibility of different terms and conditions from those which Northbridge Enterprises had previously enjoyed.
(iii) The issue of whether further restrictive conditions should be imposed on the extended trading permit had been a matter raised before the Director.76
(iv) There is a statutory requirement for the Liquor Commission to 'act as speedily and with as little formality and technicality as is practicable'.77
86 On the other hand, and despite the circumstances above, there are a number of reasons, in combination, why I conclude that Northbridge Enterprises did not have a proper opportunity to address any alteration of the conditions upon the extended trading permit from those which the Director had imposed.
87 First,the conditions imposed by the Director were identical to those conditions under the previous extended trading permit which had been granted to Northbridge Enterprises in 2007, and which had been in force for 5 years.
88 Secondly,the Police had brought the review application and had argued it on the basis that if the Director's findings concerning alcohol-related harms in the locality were maintained then no permit should be granted. The Police did not apply for the review, or make any specific submission, on the basis that a permit should be granted but on more limited conditions.
89 Thirdly,it would have been apparent to the Liquor Commission that Northbridge Enterprises had understood that the issue that it needed to address was whether the permit should be granted. Counsel for Northbridge Enterprises had expressed this in written submissions and in oral submissions.
90 Fourthly,at the oral hearing, the Deputy Chairperson had accurately, and succinctly, described to counsel for Northbridge Enterprises the 'real issue' in terms concerning whether the level of harm was such that the grant of the extended trading permit was 'unacceptable'.
91 Fifthly, there were no questions asked by any member of the Liquor Commission, and no oral submissions made, concerning whether the extended trading permit should be granted but on different conditions requiring earlier closing hours. The discussion of 'lockout' was fleeting, and it was not in the context of any suggestion by the Commission that this requirement would be imposed.
92 Sixthly, although there were documents and materials before the Liquor Commission which meant that a change in the conditions of the extended trading permit was open, this was not sufficient to put Northbridge Enterprises on notice of this possibility when the Commission had before it more than 1,500 pages of material. As Martin CJ explained in Hancock v Executive Director of Public Health:78
procedural fairness does not require the party against whom such a finding might be made to conduct their own inquiries or investigations, or form speculative views as to the subjects upon which adverse findings might be made, or the materials that might be relied upon to make adverse findings. Sometimes the nature of the proceedings themselves will be sufficient to provide adequate notice of the prospect of an adverse finding. So, the exchange of submissions by interested parties, or the pursuit of a line of questioning in cross-examination may, in appropriate circumstances, put a party on notice as to the risk of an adverse finding. However, it cannot be contended that the mere fact that there is a document on a file in the possession of the licensing authority, to which an applicant might have access upon request, is a sufficient basis for concluding that procedural fairness was provided, or that an applicant was given a reasonable opportunity to present its case in opposition to an adverse finding based upon that document.
93 For these reasons, I conclude that Northbridge Enterprises was denied procedural fairness. The appeal should be allowed on this ground unless I can be confident that the outcome of the proceedings could not have been affected, or (in the rare case that a different result would arise) would not be affected by a re-hearing.79
Could the denial of procedural fairness affect the outcome of the proceedings?
94 In written submissions, the Police argued that any denial of procedural fairness could not, and would not, affect the outcome of the proceedings.
95 This is always a difficult submission to make. In Re Refugee Review Tribunal; Ex parte Aala,80 McHugh J was the only judge to conclude that the denial of procedural fairness could not have made a difference to the outcome. But even his Honour acknowledged that '[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'.81
96 Counsel for the Police submitted that the evidence concerning (i) the number of patrons discharged from the premises, and (ii) the evidence concerning taxi availability, was provided by Northbridge Enterprises itself. Counsel asked rhetorically: could a party be denied procedural fairness if it is not given the opportunity of controverting its own witnesses?
97 The answer to this submission is that the opportunity which Northbridge Enterprises should have been afforded was not to controvert its own witnesses, but to make submissions about the issue of causation. In other words, Northbridge Enterprises should have been permitted the opportunity to make submissions concerning why the concerns of alcohol related harm and public transport availability arising from the simultaneous discharge of large numbers of patrons nevertheless (i) should not lead to any further restrictions on the extended trading permit, or (ii) should lead to different restrictions from those which were imposed.
98 Senior counsel for Northbridge Enterprises described a number of additional, non-exhaustive, submissions which he said could have been made.
99 First, the evidence concerning the reduction in persons on the street arising from earlier closing hours (including the Patterson report) had been successfully met by submissions before the Director that if the Deen closed at an earlier time the vast majority of its patrons would move to another licensed venue. This possibility had also been raised by the Deputy Chairperson of the Liquor Commission during the oral hearing.
100 Secondly,a submission might have been made that there was insufficient evidence of the relative capacities of the Brass Monkey and the Deen for the simultaneous discharge to make a difference.
101 Thirdly,submissions could have been made about the closing hours of the Brass Monkey being at 1 am on the morning following trading on Mondays, Tuesdays and Thursdays.
102 Fourthly, submissions could have been made that there was no evidence that patrons from the Brass Monkey and the Deen share the same taxi ranks.
103 Fifthly, submissions might have been made concerning the extent of the conditions imposed. For instance, whether the closing time should be 1.30 am rather than 1 am.
104 There may have been other submissions which Northbridge Enterprises might have made, or other passages in the 1,500 pages of material to which its counsel might have wished to direct the attention of the Liquor Commission.
105 For these reasons, and particularly in light of the conclusion I reach on the first two groups of appeal grounds, considered in these reasons from par [42] above, I cannot conclude that the outcome of the proceedings would, or will, necessarily be the same if Northbridge Enterprises was, and is, given the opportunity of making submissions in relation to the additional restrictions.
(3) Did the Liquor Commission have power to conduct a review hearing?
106 This seventh ground of appeal was added the afternoon prior to the appeal. Counsel for the Police did not object to the late addition. He produced immaculate written submissions by 4am on the morning of the appeal. Leave to amend the grounds of appeal was granted.
107 Northbridge Enterprises submitted that the Liquor Commission had no power to make the determination because the power to conduct a review was not enlivened.
108 The starting point is that the proceedings before the Director of Liquor Licensing concerned an application for an extended trading permit under s 31(4) of the Liquor Control Act. That provision refers to an extended trading permit 'issued by the licensing authority'.
109 The licensing authority comprises the Liquor Commission and the Director of Liquor Licensing and may be constituted by either although the jurisdiction depends on the manner in which it is constituted and the powers conferred by the Liquor Control Act (s 7). Where an application or matter is to be determined by the Commission then the licensing authority is the Commission (s 3). Otherwise it is the Director (s 3).
110 Since the licensing authority can be constituted by either the Commission (constituted by one member unless the Chairperson determined that it is to be constituted by three members: s 9A) or the Director, the application under s 31(4) could have been brought before the Commission or the Director.
111 In this case the application for the extended trading permit was brought before the Director.
112 It is common ground that the role of the Police before the Director of Liquor Licensing was as an intervenor. The Police intervened in the application by Northbridge Enterprises for renewal of its extended trading permit.
113 That intervention power in s 69(6)(c) provides that the Commissioner of Police:
may intervene in proceedings before the licensing authority for the purpose of introducing evidence or making representations -
(i) as to whether or not any person is a fit and proper person; or
(ii) on the question of whether, if a particular application were granted, public disorder or disturbance would be likely to result; or
(iii) as to the interest that any person may have in a licence; or
(iv) any other matter relevant to the public interest.
114 The Police intervened specifically on the grounds contained in s 69(6)(c)(ii) and s 69(6)(c)(iv).82
115 Section 3 defines 'party to proceedings' as follows:
party to proceedingsincludes an objector and, except in relation to any review of a determination made by the Director or any appeal in which that person is not a respondent, an intervenor.
116 The effect of s 3 is that the Police were a 'party to the proceedings' before the Director of Liquor Licensing.
117 Section 25(1) of the Liquor Control Act provides:
(1) Subject to subsections (3) and (5), where a person who is a party to proceedings before the Director is dissatisfied with a decision made by the Director in respect of those proceedings the person may apply to the Commission for a review of that decision.
118 Since the Police were a 'party to the proceedings before the Director', on a plain reading of s 25(1) there was a power for the Police to bring an application for a review of the decision of the Director.
119 Senior counsel for Northbridge Enterprises effectively submitted that s 25(1) should be construed as though 'party to proceedings' were read separately from the words 'before the Director'. He submitted that the words 'before the Director' explain the persons who have the power (subject to the carve out) to apply for a review of the decision.83 In other words, the subsection would confer a far more limited power as follows (with the separate words in square brackets to explain the meaning proposed by senior counsel for Northbridge Enterprises):
... where a person who is a party to proceedings [and who appeared] before the Director is dissatisfied with a decision made by the Director in respect of those proceedings the person may apply to the Commission for a review of that decision.
120 Senior counsel's argument then turned to the definition of 'party to proceedings' as a definition independent of the words 'before the Director'. And he submitted that because of the exception in s 3, the Police were not a 'party to proceedings', in relation to the review of a determination, because the Police were an intervenor and the application was a review of a Determination by the Director.
121 Textual, contextual, and purposive considerations all point against this construction.
122 First,the textual approach I have described gives power for an intervenor before the Director, who is a party to the proceedings before the Director, to apply for a review.
123 In contrast, the construction proposed by Northbridge Enterprises allows the definition section to control the meaning of the substantive provision in s 25(1).
124 In Gibb v Federal Commissioner of Taxation Barwick CJ, McTiernan and Taylor JJ said:84
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of a statute under consideration, they are to be understood in the defined sense – or are taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way.
This statement has been repeatedly approved.85
125 Secondly, the definition of 'party to proceedings' describes the exception as concerned with a 'review of a determination' and 'any appeal'. It does not describe the exception as involving an application for a review of a determination or the bringing of any appeal. The manifest concern is with intervenors becoming parties at the review itself or at the appeal itself. At common law, for instance, a person accepted as an intervener becomes a party to the proceedings with all the privileges of a party.86 That person would then be a party to an appeal or to a subsequent review. Under the Liquor Control Act, s 69(13) provides that an intervenor may be held to have become a party to the proceedings on any appeal and may be made a respondent to an appeal (which would then remove the protection conferred by the exemption in s 3). No provision is made for an intervenor being made a party to the proceedings on a review or being made a respondent to a review.
126 Thirdly,as senior counsel for Northbridge Enterprises properly accepted, the construction he proposed would create an anomaly.87 It would mean that if the application for an extended trading permit had been commenced before the Commission (constituted by a single member) then the Police could have intervened and appealed to the Commission constituted by three members if they were dissatisfied with the decision (s 28(1)). But because, for reasons which were not explained and could not be explained on this appeal, the application came before the Director, the Police would have no power to apply to the Commission for a review of the decision of the Director.
127 Fourthly, the construction of Northbridge Enterprises would give rise to a further oddity which is that there would be nothing to prevent the Police from intervening in an application for review of a decision of the Director where that application was brought by an objector. But the Police could not bring the application.
128 This is particularly odd in relation to the Police because there is a specific power in s 60(6) for a member of the Police Force to apply to the licensing authority (ie either the Director or the Commission) to vary the terms and conditions of a permit in a manner not inconsistent with the Act. Why would the Police have this power to make an application in relation to terms and conditions of a permit, a power to intervene in relation to an application for review, but not a power to apply to review a decision of the Director in relation to a permit?
129 Fifthly, there is an obvious purpose to the construction of s 25(1) which I have adopted. As counsel for the Police submitted,88 there might be multiple intervenors and multiple objectors to an application before the Director (as there were in this case). If one intervenor brings an application for review, then there is an immediate danger that unless intervenors are excluded as a 'party to proceedings' then the other intervenors will be carried into the review as parties. The definition in s 3 excludes this possibility and leaves the choice to the intervenor who was before the Director as to whether to intervene also in the review proceedings.
130 In contrast, the purpose that senior counsel for Northbridge Enterprises ascribed to s 3 was not protective of an intervenor but destructive of some of the protection that an intervenor would otherwise have had. Senior counsel submitted that the Liquor Control Act draws a distinction in terms of consequences of intervening as opposed to objecting. He submitted that the s 3 definition (incorporated into s 25(1)) conferred the power to apply for review only on those who object. An intervenor who wished to apply for a review would need to become an objector. But this alleged purpose introduces considerable uncertainty and further questions. One question is why, as a matter of the policy of the Act, should an intervenor be precluded from applying for review of a determination? This is particularly difficult to understand in circumstances in which the intervenor is not precluded from appealing from a single member of the Commission which is the other aspect of the exception in s 3. Another question is whether an intervenor could convert its status to that of an objector in order to apply for review? If so, another question is whether s 73(6) requires that the election to be made prior to the determination by the Director?
131 For these reasons, although I would grant leave to appeal in relation to ground 7, I would dismiss that ground.
Conclusion
132 It was common ground, and I accept, that the imposition by the Liquor Commission of the additional restrictions lacked an evidential foundation for the reasons given and hence a rational explanation for those reasons. The lack of evidential foundation, and the lack of rational explanation, concerned the causative link between the harm and loss of amenity with which the Commission was concerned and the particular conditions that the Commission imposed.
133 Leave to appeal is granted on the grounds of appeal that raise this allegation (grounds 1, 3, 4, 5 and 6). The appeal is allowed on those grounds.
134 Northbridge Enterprises also did not have a proper opportunity to address any alteration of the conditions upon the extended trading permit from those which the Director had imposed. It follows from my conclusion on the first set of grounds, but also for a number of other reasons, that if Northbridge Enterprises is afforded that proper opportunity the result might not necessarily be the same. Leave to appeal should be granted on this ground (ground 2) of procedural fairness and the appeal allowed on this ground also.
135 However, I reject the ground of appeal that alleged that the Commission had no power to conduct a review because the Police, as intervenor, had no power to apply for a review. Leave to appeal is granted on that ground but that ground is dismissed.
136 I will hear from the parties concerning the form of orders sought. In particular, I will hear from the parties concerning whether, consequent upon any quashing of the Liquor Commission's decision, the Commissioner for Police seeks an order remitting the matter back to the Commission for a fresh review. It might not be self-evident that such an order would be sought in light of the power for a member of the Police Force under s 60(6)(a) (as the Commission also has power to do of its own motion) to seek to 'vary the terms or conditions of a permit in any manner not inconsistent with the Act'. The parties should email an agreed minute of proposed orders, or competing minutes, to my associate by no later than noon on 17 April 2014.
1R v Chancellor of Cambridge, Ex P Bentley (1723) 1 Str 557, 567; (1723) 93 ER 698, 704.
2 Decision of the Liquor Commission, 23 September 2013, [1].
3 Transcript of the hearing before the Liquor Commission, page 25.
4 Decision of the Liquor Commission, 23 September 2013, [8].
5 Decision of the Liquor Commission, 23 September 2013, [7].
6Liquor Control Act 1988 (WA) s 25(5a); Liquor Control Regulations 1989 (WA) r 9AB.
7Hancock v Executive Director of Public Health [2008] WASC 224 [54] (Martin CJ).
8Liquor Control Act 1988 (WA) s 25(2c).
9 Written submissions of Northbridge Enterprises before the Liquor Commission, [42].
10 Decision of the Liquor Commission, 23 September 2013, [29].
11 Decision of the Liquor Commission, 23 September 2013, [50].
12 Decision of the Liquor Commission, 23 September 2013, [29] - [30].
13 Transcript of the hearing before the Liquor Commission, page 3.
14 Decision of the Liquor Commission, 23 September 2013, [42].
15 Written submissions of Northbridge Enterprises before the Liquor Commission, [16].
16 Decision of the Liquor Commission, 23 September 2013, [43] - [49].
17 Transcript of the hearing before the Liquor Commission, page 24.
18 Transcript of the hearing before the Liquor Commission, pages 26 - 27.
19 Transcript of the hearing before the Liquor Commission, pages 26 - 27.
20 Transcript of the hearing before the Liquor Commission, page 29.
21 Transcript of the hearing before the Liquor Commission, page 29.
22 Decision of the Liquor Commission, 23 September 2013, [62].
23 Decision of the Liquor Commission, 23 September 2013, [69].
24 Decision of the Liquor Commission, 23 September 2013, [70] - [71], [73].
25 Decision of the Liquor Commission, 23 September 2013, [72].
26 Decision of the Liquor Commission, 23 September 2013, [66].
27 Decision of the Liquor Commission, 23 September 2013, [66].
28 Decision of the Liquor Commission, 23 September 2013, [67].
29 Decision of the Liquor Commission, 23 September 2013, [68].
30 Decision of the Liquor Commission, 23 September 2013, [74].
31 Magill Memorandum and Report, page 26.
32Liquor Control Act 1988 (WA) s 28(2).
33Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 331 - 332 [18] (French CJ, Gummow & Bell JJ); Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne & Callinan JJ).
34Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356; Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 [61] (Buss JA). See also Liquor Control Act 1988 (WA) s 16(11).
35Liquor Control Act 1988 (WA) s 28(5).
36Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 333 [20] (French CJ, Gummow & Bell JJ)
37Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh & Gummow JJ)
38Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh & Gummow JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280, 287 (the Court).
39Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 359.
40Minister for Immigration, Local Government and Ethnic Affairs v Passhmforoosh (Unreported, FCA, 28 June 1989).
41Hancock v Executive Director of Public Health [2008] WASC 224 [67] citing Pallot & Ors v Harrison (Unreported, WASC, Library No 950261, 12 May 1995) (Owen J); Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 237 [31] (Pidgeon J; Wallwork & Owen JJ agreeing).
42 Decision of the Liquor Commission, 23 September 2013, [64].
43 Decision of the Liquor Commission, 23 September 2013, [65].
44 Decision of the Liquor Commission, 23 September 2013, [62].
45 Decision of the Liquor Commission, 23 September 2013, [63].
46 Written submissions by Northbridge Enterprises before the Liquor Commission, [31].
47 Decision of the Liquor Commission, 23 September 2013, [62].
48 Decision of the Liquor Commission, 23 September 2013, [38].
49 Magill Memorandum and Report, page 13.
50 Magill Memorandum and Report, pages 15 - 16.
51 Magill Memorandum and Report, page 16.
52 Decision of the Liquor Commission, 23 September 2013, [72].
53 Decision of the Liquor Commission, 23 September 2013, [76].
54Australian Leisure and Hospitality Group Ltd v Executive Director Public Health (LC 31/2010) [44].
55 Under Liquor Control Act 1988 (WA) s 64.
56 Decision of the Liquor Commission, 23 September 2013, [69].
57 Written submissions by Northbridge Enterprises to the Director, 2 October 2012 [11(d)].
58 Final written submissions by Northbridge Enterprises to the Director, 15 October 2012 [22] - [24].
59 Patterson Report, page 14.
60 Patterson Report, page 13.
61 Closing Submissions of the Executive Director for Public Health before the Director, 15 October 2012, page 9.
62 Written submissions by Northbridge Enterprises to the Director, 2 October 2012 [136].
63 Patterson Report, page 10.
64 Patterson Report, page 11 - 12 .
65 Patterson Report, page 11 - 12.
66 Patterson Report, page 11.
67 Proof of evidence of Istvan Imre Toke [24].
68 Proof of evidence of Mehran Nouri [33] - [34].
69 Proof of evidence of Brody Stein [45].
70Re Minister for Immigration and Multicultural Affairs;Ex parte Applicant S 154/2002 [2003] HCA 60; (2003) 201 ALR 437, 444 [28] (Gummow & Heydon JJ; Gleeson CJ agreeing).
71McKay v Commissioner of Main Roads [2013] WASCA 135 [158].
72McKay v Commissioner of Main Roads [2013] WASCA 135 [157]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[1994] FCA 1074; (1994) 49 FCR 576, 591 - 592.
73McKay v Commissioner of Main Roads [2013] WASCA 135 [156].
74Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, 162 quoting from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[1994] FCA 1074; (1994) 49 FCR 576, 590 - 591.
75Hancock v Executive Director of Public Health [2008] WASC 224 [42] (Martin CJ).
76 Final written submissions by Northbridge Enterprises to the Director, 15 October 2012, [18] - [19].
77Liquor Control Act 1988 (WA) s 16(7)(c).
78Hancock v Executive Director of Public Health [2008] WASC 224 [42].
79Woolworths v Commissioner of Police [2013] WASC 413 [129].
80Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.
81Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 122 [104] quoting Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (the Court).
82 Magill Memorandum and Report, page 1; Written submissions by Northbridge Enterprises to the Director, 2 October 2012 [7].
83 ts 59.
84Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628, 635.
85Marku v Republic of Albania [2013] FCAFC 51; (2013) 212 fcr 50,73 [74] (the Court); Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186, 224 [218] (Murphy JA); Esso Australia Resources Pty Ltd v Commissioner of Taxation (Cth) [2011] FCA 360; (2011) 194 FCR 32, 81 [223] - [224] (Middleton J); Lamb v Brisbane City Council [2007] QCA 149; [2007] 2 Qd R 538, 553 [47] (the Court); Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, 574 - 575 [12] (McHugh J); Kelly v R [2004] HCA 12; (2004) 218 CLR 216, 245 [84], 253 [103] (McHugh J).
86Corporate Affairs Commission v Bradley[1974] 1 NSWLR 391, 396 (Hutley JA, Reynolds JA & Glass JA agreeing).
87 ts 72.
88 ts 88.
2
29
1