O'Sullivan v Farrer

[1989] HCATrans 126

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S219 of 1988

B e t w e e n -

MARIE O 'SULLIVA.i.'l

Appellant

and

RONALD JAMES FARRER

First Respondent

NEWCASTLE LICENSING INSPECTOR

Second Respondent

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

O'Sullivan(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 JUNE 1989, AT 2.02 PM

Copyright in the High Court of Australia

C2T 44/ 1 /HS. 1 1/6/89

MR R.V. GYLES, QC:  If Your Honours please, I appear with

my learned friend, MR S.B. AUSTIN, for the appellant.

(instructed by Braye Cragg Fox Maher)

MR D.A. STAFF, QC:  If the Court pleases, I appear with my

learned friend, MR J.F. KILDEA, for the first

respondent. (instructed by Kalyk Hansen Deegan)

MASON CJ:	Yes, Mr Gyles.
MR GYLES:	Your Honour, might I hand up copies of our outline

of argument.

MASON CJ:	Thank you.
MR GYLES:	As Your Honours will appreciate, the judgment of

Mr Justice McHugh, which was the leading judgment of the

majority, turned really on two points; the first

was the limiting effect of section 47 of the Act upon

the discretion of a licensing court and, secondly, the

impact of section 57, particularly section 57(4) upon the

matters which were relevant to the exercise of

discretion which the magistrates were performing.

Your Honours, our first proposition is that the grant of a licence under the Act is essentially

discretionary.

The basic provision is section 18 of the Act.

It relates to the grant of licences and does not in

terms refer to the removal of licences.

(Continued on page 3)

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MR GYLES (continuing):  As Mr Justice Mahoney's analysis of the

Act reveals there are grants of licences, there can be transfers of licences between parties and there

can be removal of licences from one premises to other premises. As far as the third category is concerned,

there can be a removal within the neighbourhood or

there may be a removal outside the neighbourhood and

different questions arise in those cases ..

Now it was accepted below - - -

BRENNAN J: Just before you go on, if that is all you are

going to say about that, where does one find,

by implication or otherwise, the power to remove

a licence within a neighbourhood?

MR GYLES:	Your Honour, the Court below found that implication
from several sections.  Mr Justice Mahoney analysed -
Your Honours, if I could pick up his judgment on
the point, page 80, point 22, in which His Honour
refers to particularly section 45(2), which is
unrestricted as to neighbourhood, and 57, His Honour
refers to also. That is a - - -

BRENNAN J: 45(2)?

MR GYLES: 45(2).

BRENNAN J:	I must have the wrong Act, that is to do with - - -
MR GYLES:	There are two Acts we have given Your Honours
reference to.  One is the 1912 Act and the
other is the 1982 Act, 45(2) and section 57.

BRENNAN J: Well it is an open question, would it not be,

that 45(2) gives rise to an implication of a

power to remove within a neighbourhood?

MR GYLES: That depends upon its inter-relationship with

section 57, that is correct Your Honour.

57 itself - - -

BRENNAN J:	57 refers to outside the neighbourhood.
MR GYLES:	57 relates in 57(1) Your Honour, to an
application for removal, or:

shall not grant an application for

removal to a place outside - - -

MASON CJ:  What about subsection (4) of 57?

MR GYLES: Subsection (4) of 57 removes from operation

section 45(2) in the case where the removal is

to premises within the same neighbourhood and -

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MASON CJ:  So there must be power to do that.

MR GYLES:, Yes, so we submit the courts below were right

in holding that there was an implied power and
my learned friend says section 43 tends to

the same conclusion. There is no concept of

neighbourhood involved in section 43.

Now Your Honours, whilst section 18 does

not in terms relate to a removal, it confirms

the general discretionary nature of a licensing

jurisdiction. Your Honours,there were a series

of cases referred to in both the judgments

below. First of all, Mr Justice Mahoney at
page 87, lines 6 to 27, which affirm the

principle that the public interest lies at

the heart of liquor licensing as it does with

other forms of licensing and that was

confirmed in the authorities in this Court

to which reference was made in those passages.

Mr Justice McHugh, to the same effect,

at page 103, lines 5 to 10, and the

authorities there referred to.

(Continued on page 5)

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MR GYLES (continuing):  I do not think I need take

Your Honours to the cases because the principle

appears to be accepted on all sides. We then

submit there was nothing in the 1982 Act to

suggest that the public interest is any less

important now than it was previously and, indeed,

the very terms of section 45(1) (c), which is one

of the subsections in issue here, underlines this
circumstance.

Your Honours, we then draw attention to

the fact that the division in which sections 45
and 47 find their place deals with objections
to applications not with the grant of applications.
And we then turn, Your Honours, to examine the

argument that section 47 - particularly

section 47(2) - requires the reading down of

the general discretion which the Court would

otherwise have and Your Honours will have

appreciated that Mr Justice McHugh came to the

decision he did because he felt driven to do

so and with a great deal of regret which he expressed.

The first point, in our submission, is that

section 47(2) simply has no application at all

to a removal of licence. It is, in terms -

Your Honours will see that 47(1) relates to:

a ground of objection to the grant of an

application -

There was no further specification of what type

of application. Subsection (2):

Notwithstanding that an objection to the grant of an application for a licence on the ground specified ..... has not been

taken or made out -

and so on.

So that, in terms, the section relates to

an application for a licence and we submit that

that is not an obvious slip or error, it is a

deliberate choice of words and it simply has

no application to a removal. Mr Justice Mahoney

so held at page 83, lines 16 to 24. There is

a reason even more powerful than that advanced
by His Honour for coming to that conclusion.

Perhaps I should not say "more powerful" because the wording of the section is perhaps the most important aspect but it will be observed that

subsection (2) relates only to grounds specified

in 45(1)(a), (al) 1nd (b).

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Now those grounds, and the substance of

them is ac.tually set c	in (a), (a 1) and (b)
of 47(2) itself but th	all relate to question
of fitness and propri	of the licensee or

of persons closely associated with or directly

or indirectly interested in the business, et cetera.

Now, that is simply not a question which arises where

the issue before the Court is removal of a licence

from one premises to other premises. It would

be relevant where there is an application for a new grant because obviously one of the most

important aspects of the grant of a licence is
the fitness of the applicant and included in

that concept is the extended notion of fitness in

(1) (a) and (b).

However, all that is happening is that the

licence is transferred from one place to another,

the licensee remains the same and there is no

relevant connection between the identity - there

is no connection between the fitness and propriety

of the licensee with a removal from premises

to premises.

(Continued on page 7)

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O'Sullivan(2)
MR GYLES (continuing): That objection might be relevant

where there is an application for transfer of a

licence but it more naturally relates to an

application de novo for a licence because if,

during the course of the holding of a licence,

circumstances arise which render the holder unfit,

there are other mechanisms under the Act for

dealing with that situation.

MASON CJ:  You say, do you, that section 57 effectively

deals with what are the specific objections which

may be raised in relation to removal?

MR GYLES: Section 57 deals with them but what we say

is that section 45(2) and (3) - well, 45(2) is

out where it is within the neighbourhood; 45(1)(c)

and 45(3) in so far as those headings might be

relevant to a removal; for example, (3)(c), (3)(d)

and (3)(e) might be considered relevant to removal

because they relate to the premises but not (3)(a)

because that relates to the personal characteristics

of the licensee and not (b). I mean, it does

not matter where he is exercising the licence,

if Your Honours see the point we endeavour to

make.

So that, both as a matter of the wording

of the section and its place in the Act, 47(2)

simply has no application to the removal of a

licence from premises to premises and it is thus

incorrect to read down the general discretionary

provisions of the Act by reference to·it and,

as we have put it, Your Honours, the second aspect

of section 47 to which we draw attention is that

section 47, when read as a whole - section 47(1)

in particular - affirms the existence of a discretion

except in those cases where the establishment

of the objection is inimical to the grant of a

licence.

In other words, we would submit this: that

section 47 is framed upon the assumption that

the licensing court has an ample discretion to

grant or not to grant a licence. The result

that it achieves is, however, to say that where
the court concludes either that the applicant

is not fit and proper or that persons closely

associated are not fit and proper or persons

directly or indirectly interested are not fit

and proper, then there shall be no grant of a

licence.

In other words, the legislature has said,

"In those cases where you find lack of fitness,

you have no discretion to grant. We expressly

cut down the discretion you would otherwise have

to grant because we, the legislature, say no

C2T47/l/SH	7	1/6/89
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person should hold a licence who is not fit to

do so. Furthermore if, after a proper hearing,

it is concluded that for reasons other than (a),

(al) and (b) and subsections (2) and (3), it

would not be in the public interest to grant
the application, if you, the court, have concluded
that it would not be in the public interest to

grant the application, then it is inappropriate that there be any grant in those circumstances".

So that, where there is the upholding of

an objection under section 45(1), it is inconsistent

with that objection that there be any grants

to that person, the legislature has so confined the discretion. Section 47(2) looks at another circumstance involving fitness and propriety

and says that:

Notwithstanding that an objection has -

been either not taken or, if taken, not been

made out, then:

the court may -

none the less -

refuse the application if it finds, after -

natural justice has been accorded, that there is the

appropriate lack of fitness.

(Continued on page 9)

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O'Sullivan(2)

MR GYLES (continuing): Again, the legislature is saying, or underlining I should say, the importance which it places upon fitness and propriety to hold a licence.

And where, in the course of a hearing, facts emerge which differ from the particulars of objection which have been given - Your Honours should know that

section 46 requires that objections be in writing

and that they provide particulars and the like and

that the place that subsection(2)of 47 plays in the

legislation is to deal with a situation where

either an objection has reen· taken on grounds which

do not succeed or no objection has been taken on

fitness ~rnunds, and, in the course of the hearing,

facts and matters emerge which are not part of any

ground which was argued and yet reveal potential

unfitness.

The legislature has said you cannot shut your eyes to

that merely because it was not part of the pleadings,

if you like. This is a public interest matter, it

is an inquiry, it is in the nature of an inquiry, but

the way we deal with it is to say, "You must take

into account, but there shall be natural justice

provided by subsection(.3)".

This all, Your Honours, in the context where

it is related to the grant of a licence not, as we

have said, to a removal. So, even if we were wrong about removal and 47 does have application, it only

relates to those grounds of objection under 45

which are inimical to the granting or, perhaps holding

of, a licence. It indicates the special statutory

concern with that topic. It does not address at all,
with respect, the matters with which it does not deal.

For example, sections 45(2) and (3) raise matters which, in particular applications, may be of very

great substance.

TOOHEY J: It is peculiar though that 47(2) having fastened

on to grounds that, as it were, relate to the fitness

of the applicant, exclude from its operation certain

of the grounds in 45 ( 3) that bear on the very

matter, although it may well be that those matters

could be subsumed under section 45(1)(a).

MR GYLES:  Yes. Your Honour, it may be you could have cases,

and no doubt would have cases, where a section 45(3)(a)

or (b) might not, in the circumstances, be equivalent

to a lack of fitness. That indicates perhaps that

the legislature is content to leave with the licensing

court its general discretions except in the case

where actual unfitness is found. We submit that

rather helps our argument, that they are selecting

out only that particular set of circumstances.

Now, Your Honours, Hr Justice McHugh,

in his judgment, referred to the expressio unius

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principle and referred to the decision of this

Court in ANTHONY HORDERN & SONS LTD V AMALGAMATED

CLOTHING. May I take the Court to that decision?

47 CLR 1 at 7.	Your Honours, the legislation in
question is set out actually at page 1.	It was

section 40 of the CONCILIATION AND ARBITRATION ACT:

The Court, ... by its ... award, or by

order made on the application of any organization

or person bound by the award, may ... direct

that, as between members of organizations of

employers or employees and other persons (not

being sons or daughters of employers) offering

or desiring-service or employment at the same

time, preference shall, in such manner as is

specified in the award or order, be given to

such ~embers, other things being equal.

The actual award that was made was not limited to "other things being equal". It gave an absolute preference. At page 7, point 2, Their Honours say:

It follows that the order cannot be supported

as an exercise of the power conferred by

sec. 40; and, in fact, the learned Judge of
the Court of Conciliation and Arbitration
who made the order purported to act, not under
that section, but under the general power of
the Court given by secs. 24(2) and 38(a) to

hear and determine industrial disputes.

(Continued on page 11)

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MR GYLES (continuing):

But, in our opinion, the general power
of the Court does not authorize his order.
The order deals with preference of members
of an organization over other persons

in employment, and over that subject a

limited and qualified power is specifically

given by section 40. Extensive and
unfettered as the authority of the Court

of Conciliation and Arbitration to award

preference in settlement of a dispute might

have been in virtue of its general power,

yet, when sec. 40 expressly gives a special

power, subject to limitations and

qualifications, surely it must be understood

to mean that the Court shall not exercise

an unqualified power to do the same thing.

I suppose, Your Honour, it may be incorrect to see

this as expressio unius. It is the maxim about

something dealt with specially rather than generally,

but we respectfully submit that that case throws little

light on the statutory construction task which is

before the Court in the present case. Closer

analogies are to be found firstly in the decision

of this Court in a Victorian licensing case of

MARRIOTT V COLEMAN, 109 CLR 129.	The Chief Justice
at page 132:

I think that s.246(m) should be construed

simply as describing an objection which

may be taken, and which, if and when taken,

is to be weighed by the Licensing Court

in all the circumstances found to exist as

a consideration which does or does not

really render the registration of the Club

an undesirable step to take. I do not

think that the decision of Hodges J in

CURTIN should be treated as affording any

guidance.	My decision rests on the simple
ground that the legislature has not expressed
any meaning which necessarily constitutes
the objection an absolute ground of refusal
and that it should not be construed as doing
so, without a plain context requiring such a construction. In my opinion the appeal should be allowed.

At page 133 point 10, Their Honours, in the joint

judgment, have analysed the jurisdiction of a

licensing court:

exclusive jurisdiction to hear and

determine -

and so on. Section 57(2) is set out and Their Honours

go on, after referring to that subsection:

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Although this particular sub-section

is concerned with the winding up of the

effect of earlier local option provisions

and polls taken thereunder and its

particular purpose relates to a matter

other than the character of the Court's

authority, it is nevertheless a provision

in which there is express recognition of

what the whole Act recognizes implicitly,

namely that the Licensing Court has,

subject to the Act, power and discretion

in relation to the matters in respect of

which it is granted authority ..... deals

particularly with clubs.

Their Honours say it follows the New South Wales

pattern, and then at page 135 to page 136, the first

full paragraph on that page:

It is in this setting that we turn to

consider s.246(1) in greater detail, for

what appears there is nothing more than an

enumeration of grounds of objection that

may be taken by specified objectors at the

hearing of an application for the grant or

renewal of the registration of a club the

majority of the Full Court has regarded as

a provision requiring the refusal of an

application if any of the grounds of

objection applicable thereto has been

established.

So it is the converse of the present case but it

gives rise to a similar point of construction.

Were the grounds specified, or do they restrict the discretion of a licensing court by requiring

a refusal of the licence if the ground is established?

(Continued on page 13)

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O'Sullivan(2)

MR GYLES (continuing); And Their Honours, after examining

the question from pages 135 through 136 say that

it is not an absolute bar. And, certainly, there

is no - I respectfully submit it is a closer

analogy than the cases which were selected.

In other fields, Your Honours, there are

comparable questions which arise. In the broadcasting

field, a decision of this Court in REG V AUSTRALIAN

BROADCASTING TRIBUNAL, EX PARTE 2HD, (1979) - - -

MASON CJ:  How are these cases going to help us? We

are really confronted with the interpretation

of this statute?

MR GYLES:	Indeed, Your Honour.
MASON CJ:	But was there any differences in all these cases?

They depend on their own statute, their own

context and subject-matter.

MR GYLES:  Indeed, Your Honour, but all I can get from

them is this, that in a public interest licensing

context the courts lean against construing a

list of factors or a list of objections or a

list of grounds - - -

MASON CJ:	As being exclusive.
MR GYLES:	- - - as being exclusive.  And, Your Honour,

perhaps I can do no more than give Your Honours

the reference to these cases. It may be that
the general trend of them is not in dispute and

I will do that.

MASON CJ: Is there an enunciation of principle in those

terms?

MR GYLES:	Your Honour, I would submit that - - -
MASON CJ: If there is you could refer us to it.

MR GYLES:  Yes. I submit that if Your Honours go to the

BROADCASTING TRIBUNAL case, EX PARTE 2HD,

144 CLR 45, at 50, the joint judgment comes very

close to putting it in the terms I have. One

of the arguments in the case, Your Honours, was

that whilst the particular section in granting

the power did not contain any preconditions to

its exercise in relation to finding the public

interest, in other sections where the public

interest was to be separately considered the

Act expressly said so and thus it was argued where that does not appear the tribunal has no

real discretion on public interest grounds.

And at 50, the Court said:

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The applicant relies principally on

the circumstance that public interest (or

matters relating thereto) is expressed to

be a relevant consideration in the exercise

of other discretions under the Act -

and those there referred to.

However, it is not a legitimate approach

to interpretation to compare a statutory

discretion which is expressed in unlimited

terms as to one subject with another

dsicretion in the same statute which is

confined to specified considerations with

reference to a different subject and thereby

conclude that the first discretion necessarily

excludes the considerations specified in

relation to the second discretion. The

general rule is that a discretion expressed

without any qualification is unconfined
except in so far as it is affected by
limitations to be derived from the context

and scope and purpose of the statute. The

fact that a discretion relating to a different

subject matter is confined to a particular

consideration provides no rational reason
for saying that another discretion expressed

without qualification does not embrace that

particular consideration. Applied to the

criterion of public interest, the argument

is even less attractive. It would bring

about the rule, if accepted, that a discretion

generally expressed may extend to any factor

except public interest merely because another

discretion -

et cetera.

(Continued on page 15)

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O'Sullivan(2)

MR GYLES (continuing):  And, of course, in those

broadcasting contexts there is often a connnercial
contest at stake with the Broadcasting Tribunal

in the middle.

MASON CJ:  What is the relevance of that comment?

MR GYLES: Well, Your Honour, trying to make the analogy between

the broadcasting context and the liquor licensing

contest. Here we have two - an applicant and an

objector with commercial interests and the licensing

court. having a public interest discretion in the

middle, as it were. There are other Federal Court

cases on licensing which, perhaps, do not - I need

not take Your Honours to. May I remind Your Honours

of what the then Chief Justice Sir Owen Dixon said

in TOOTH & CO LTD V PARRAMATTA C.C. in a local

government context in 97 CLR 492, 501.

Can I hand up to Your Honours clause 27 of the County of Cumberland Planning Scheme Ordinance?

MASON CJ: Well, the LIOUOR ACT is bad enough in itself

without taking us - - -

MR GYLES:	It is one clause, Your Honour. His Honour, at page 501
point 5, referred to the proviso to clause 27 of the Scheme, then in the last full paragraph on
page 501, His Honour said:

I mention cl. 27 specifically for the

purpose of saying two things. The first

is that the council has a wide discretion and

that the grounds on which it is exercisable

do not appear to me to be limited to the

matters stated in the proviso. The proviso

is an express commend requiring it to pay

attention to the matters specified. The discretion of the responsible authority,

however, is not necessarily restricted to

those matters. In the second place it was

suggested -

and so on. And, I respectfully submit that that

also supports the proposition for which we contend.

Your Honours, we then pass to section 57. We

pass to that section because His Honour Mr Justice McHugh's
process of reasoning was the following: under

section 45(l)(c), any ground of public interest can

be taken - any objection on the public interest can
be taken, therefore, if there had been an objection
taking the point which the Full Bench took in this
case, that could have been appropriately dealt with

in general terms.

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The conclusion which

His Honour was driven to by section 47 was thus

almost purely procedural, and the result flowed

from the fact that there had been no objection taken

on that ground. His Honour then said, "Well if that

is all that was in it, that could be cured by now,

sending the matter back to the licensing court,

amending the proceedings to take the objection,

and then have the matter dealt with."

But, His Honour said that is not open in the

particular case, because the matter that they have

taken into account, that is, the interests of those

affected by the removal of one part of the neighbourhood

to the other, were prohibited considerations,

removed from them by section 57. Thus, there is no

purpose to be served by remi:ting the matter in

those circumstances because it would involve them

taking into account any relevant consideration.

Now, His Honour came to that view because

section 57(4) removed from the grounds of objection

section 45(2) and thus, His Honour held, that

removed from the consideration of the licensing

court any consideration of the interests of those

resorting to or living near a licensed location,

coupled, as my learned friend says, with 57(1).

Now, Your Honours, we submit that is a

non sequitur.

(Continued on page 17)

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O'Sullivan(2)

MR GYLES (continuing): Section 57 (4) is in the Act, I would

respectfully submit, to settle a debate which

had existed under the previous Act, which is

referred to in an unreported Court of Appeal

decision in which His Honour Mr Justice Mason

gave the leading judgment. The case has no

particular relevance for the resolution of this

matter but I do hand copies to Your Honours because

it shows why, in my submission, the section is there.

MASON CJ: What part of this judgment - - -

MR GYLES:  Your Honours, there are two glancing references

to the debate which existed as to whether or

not, where there was removal within the neighbourhood,

that there was any needs requirement to be met or

public interest to be considered and I have just -

my copy which I had though I had marked up is not,

Your Honour. I will have my learned junior do that

and give Your Honours a note of them. But, really,

it is merely to show that there was an issue

which had existed which this section resolves. Section 45(2) does surely not exhaust the

topics of public interest which might be taken

into account in removing a licence from one premises

to another within a neighbourhood. A neighbourhood

may be a rather large geographic area, can be,

and we would respectfully submit that it is not

an extraneous consideration when considering such an application to consider the position

of those that may resort to those licensed premises,
the persorawith surrounding businesses of the

premises and the like. What weight should be

given to it is, of course, a matter for the expert

specialized tribunal but we would submit that

section 45(2) does not exhaust the question and

does not relate to the question. The problem

with 45(2) was and the inherent ambiguity in

it which led to the problems earlier is that

you take account of the needs of the public in

the neighbourhood of the premises. The ambiguity was: is it

meant in the neighbourhood of the premises, the

immediate neighbourhood or the neighbourhood

in the wider sense used in other sections? That

was the debate.

Now, in my respectful submission, the fact

that that is not now to be taken into account
in the particular circumstances of section 57(4)

does not carry with it the conclusion that no

question relating to the interests of those in

the vicinity of the licensed premises may be

taken into account.

So that we respectfully submit that, on

that ground, also, His Honour was in error and

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O'Sullivan(2)

that, even if we are wrong on our first proposition,
thus bringing into play the alternative route
that His Honour took, it still would be open
to have this matter cured procedurally by going

back to the licensing court and permitting the

amendment now to be made, to raise the objection

and that, thus, whichever route one approaches

it, in our respectful submission, His Honour

was wrong and that the licensing court was right.

Now, there were some indications in His Honour's

judgment that His Honour had misread section 47, going

beyond the particular matters to wnich we have drawn

attention so far. =-::

-::

(Continued on page 19)

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O'Sullivan(2)

MR GYLES (continuing):  And that perhaps most clearly

appears at page 102 to 103 and perhaps

most clearly at the top of page 103. His

Honour said,"Between them section 47 (1) and (2)

deal with all the grounds of objection in

section 45 except the public interest ground

in section 45 (l)(c)." Now, Your Honours,

that is simply incorrect. The sections 41

and 42 do not deal, in our respectful submission,

with the substance of 45 (2) and (3). It is

in our respectful submission that the way

in which the section is framed leaves sections

45 (2) and (3) in the position where a

general discretion may be exercised and for

the reasons we have already advanced, section
45 (1), because of the nature of the findings,

the discretion has been removed from it.

And that analysis of 47 does not appear

to have influenced His Honour at all in

the pages to which reference has been made

and the conclusion which His Honour comes to

at 104, line 20; "The terms of s 47 ..... must be

taken both to regulate and to be exhaustive of the

discretion to grant a licence conferred by

is inconsistent with the submissions that we	section is:• is the ultimate conclusion, which
have put.

So for those reasons we respectfully submit

that the judgment of Mr Justice Mahoney should

be preferred and that the Full Bench of the

licencing court's decision should be restored.

MASON CJ: Yes, thank you Mr Gyles. Yes, Mr Staff.

MR STAFF:	May I first of all hand up eight copies of the
first respondent's outline of submission.
May we firstly say that perhaps we have been
a little generous to my learned friend in the
We did not understand my learned friend to that there are two questions which arise. first paragraph of our outline in suggesting
suggest that the case should go back to the magistrates if it be held that the Court of
Appeal,  the majority wrongly held that the
discretion, if there is one, had been
exercised on a wrong ground, that being the question which we suggest did arise for determination of this
appeal as paragraph (b) of paragraph 1. But perhaps
the question is not one on which it is worth spending
time, since the main argument certainly meant
discretion or no discretion.

C2T53/l/CM	19/20	1/6/89
O'Sullivan(2)

MR STAFF (continuing):  As to that question, what we say

first of all, with respect, is that section 18(1)

is the source of the jurisdiction, both to grant

original applications and removals, because the

effect of a grant of a licence is to authorize a person, a licensee, to sell liquor on particular

premises. The effect of a removal, of course, is

not to authorize a different licensee, but to

authorize sale by the same licensee on new premises,

that is of liquor on new premises. So that in

substance the application is an application called

to remove but in fact for authority to sell on

new premises, or different premises from the old,

and it takes effect as such an authority when granted.

So, in our submission, within the general

language of section 18(1) it is capable of being

said to authorize the court to grant a licence:

in a form approved by the Board

authorising the licensee to sell

liquor on the premises specified 1n

the licence.

That is precisely what an order granting removal and

the consequent endorsement of the licence with the

address of the new premises within the meaning of

section 57(3) does. It authorizes the sale of liquor

on premises described in the licence, but different

premises from those previously authorized for the

sale of liquor.

BREfNAN J:	Do you say it is a different licence?
MR STAFF:	It is in part a different licence because it 1s a

licence in respect of different premises,

Your Honour. It is the same licence in the sense

of authorizing the same licensee, but in

substance, and we would say in reality, it is a new licence because it authorizes sale of liquor on new
premises, on premises which had not been authorized

for the sale before.

BRENNAN J:	But only in that sense?
MR STAFF:	In that sense, yes.
BRENNAN J:	Not as to time or the licence fee, or anything

else?

MR STAFF:  Well, those matters are regulated by other provisions

of the Act and do not depend on what the premises are without resort to other provisions of the Act to alter the standard times, or those sorts of matter.

Now, alternatively what we submit is that a similar

grant of power or jurisdiction to a court is made by

implication drawn from the particular provisions to

.which the outline makes reference in clause 3.

C2T54/1/HS	21	1/6/89
O'Sullivan(2)

First of all, section 43, which is the interpretation

provision, so called, for D.ivision 5, it commences:

In relation to removal of a licence,

a reference in this Division to the

premises to which an application

relates is a reference -

(a) in section 44 - to both -

the old and new premises, and -

(b) in any other case - to the premises to

which ..... the licence would be removed.

So that section 43 starts the division by

contemplating an application for removal. Then in

section 44 one finds a description of the qualifications

of persons w~ may object to the grant of applications
and in perhaps the only provision to which reference

ought to be made in section 44(1) is (g) which

provides that:

in the case of an application for removal

of a hotelier's licence - a lessee or
mortgagee of the licensed premises or a

sublessee of a lessee or sublessee thereof - may be a qualified objector. Interestingly, no such

qualification or no similar qualification is made

in respect of an application for a removal of an

off-licence, that ground, or that qualification

as an objector being limited to a person concerned

by an application for removal of an hotelier's

licence.

(Continued on page 23)

C2T54/2/HS	22	1/6/89
O'Sullivan(2)

MR STAFF (continuing): Section 44(2) limits some of the

qualification of objectors but I draw attention

to section 44, not so much for what one finds

in it but, rather, for the effect of it on the

structure of the division. It is at pains to
limit people who may object and to limit them,

perhaps not in some cases, very severely, but to limit them to residents, owners of premises

and some other more specially qualified people.

But a member of the public is not a qualified

objector and all we would seek to draw from 44

is that the legislature has there made an attempt

to define with particularity the qualifications

which persons need to adopt or be permitted to

adopt the character of objector and, thereby,

to participate in the proceedings in the court. Section 45, then, follows by expressing

the grounds on which objections may be taken

and I would not propose to take Your Honours

through the particulars of those grounds.

Your Honours have seen in substance what they

are. Section 46 then follows, providing the

manner in which an objection must be taken and,

again, it is of some importance, we submit, to

see the particularity with which the legislation

has addressed that question because the notice

of objection must be in writing and then, in

46(1)(b):

Where a ground for the objection is a ground

specified in section 45(1) -

the notice of objection must specify -

the reasons why the objector considers .....

the applicant is not a fit and proper person -

or that he is so closely associated with a specified

person as not to be a fit and proper person; and

then, a person associated with the business in the

new premises is not a fit and proper person.

That particular provision, 46(1)(b)(ii), denies the submission with which my learned friend almost

commenced his submissions this afternoon because he

says that 47(2) is not concerned with and the provisions

of 45(1)(a), (l)(al) and (l)(a)(b) are not relevant

to a removal application but the fact that a person

is associated with the business proposed to be carried

on in the new premises can only be relevant to an
application for removal. It cannot be of relevance

to an application for a new licence though, of course,

it is of relevance in relation to an application for

a new licence if the person is proposed to be

associated with the business to be carried on at

the proposed licensed address.

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O'Sullivan(2)

MASON CJ:  What provisions is this you are referring to,

Mr Staff?

MR STAFF: Section 45(a), (al) and (b), more particularly,

45(1)(b). Section 45(1)(b) is expressed in these

terms, Your Honours:

(Continued on page 25)

C2T55/2/SH	24	1/6/89
O'Sullivan(2)

MR STAFF (continuing):

that a person directly or indirectly interested

in the application or in the business, or

the profits of the business, to be carried on
pursuant to the licence if the application

is granted is not a fit and proper person to be

so interested;

Clearly, that would apply to an application for a new grant in respect of particular premises but, similarly,

as is made clear by 46(l)(b)(ii) it applies to an

application for removal.	Because	46(l)(b)(ii)
speaks of:

in the case of an objection on the -ground

specified in section 45(l)(b) -

and then spells out that objection -

that the person to whom the objection relates is not a fit and proper person to be directly or indirectly interested in the application

or in the business, or theprofits of the
business, to be carried on pursuant to the

licence if the application is granted.

So that what we submit is that section 46 makes

it plain that the grounds of objection specified in section 45(l)(a), (al) and (b), at least that

is specified in (b), is applicable to a removal

application as well as to an original .application.

DAWSON J:	I am not sure that I follow tha4 Mr Staff.
MR STAFF:	Your Honour, 45 speaks of a ground of objection - and I am looking at (b):

that a person directly or indirectly interested

in the application -

and, for the moment, assuming that "application" means

application- for an original licence or application

for removal -

or in the business, or the profits of the
business, to be carried on pursuant to the
licence if the application is granted is
not a fit and proper person to be so interested.

The language there is general enough, in our

submission, to apply both to an application for a
new licence in respect of specified premises and to

an application in respect of the removal of a

licence from one set of premises to another. That

it is intended to encompass the latter type of

application is made clear, in our submission, by

C2T56/l/DR	25	1/6/89
O'Sullivan(2)

section 46(1)(b)(ii) which, true, is speaking of

what the objection as an objection is which requires

reasons. But (2) is in these terms, in the case

of an objection specified in section 45(1)(b) that

the person to whom the objection relates 'is not a

fit and proper person" to be -

directly or indirectly interested in the
application or in the business, or the

profits of the business, to be carried on

pursuant to the licence if the application

is granted.

Now, a new owner or lessee of the premises to

which the licence is sought to be removed will be

a person associated with the business and a person

interested in the application, no doubt. Certainly,

if, as is most common in many liquor cases, a

lessor of the premises to a proposed licensee is

remunerated in part by a turnover provision.

(Continued on page 27)

C2T56/2/DR	26	1/6/89
O'Sullivan(2)

MR STAFF (continuing):. But it is our submission that when

one reads 45(1)(b) together with 46(l)(b)(ii)

there is no possible basis for confining
45(1)(a), (b) and (c) to the case of original

applications for new licences and as

being excluded from operation in the case of

applications for removal. And that, of course, makes my learned friend's submission in respect

of the structure of 47(1) difficult, indeed,

if not impossible to accept because my learned

friend says that the absence of any reference

to 45(1)(a), (al) or (b) in section 47 is

explicable because the presence of the facts

which those paragraphs describe is inimical to

a licence; that is, that	a licensee is not
a fit and proper person.

So you would not, in that case, so his

submission goe~ expect to find a discretion to

grant a licence to such a person; nor would you,

so the submission goes, expect to find a discretion

to grant a licence to a licensee in the case

of an objection made out under 45(~) or

45(l)(b). But if 45(1)(b) applies just as readily

to an application for removal as to an application

for a new grant the basis for that submission

dissolves.

So one has to find an intention, in our

submission, a legislative intention in

section 47(1) to define exhaustively the extent
of the discretion to grant applications

notwithstanding that a ground of objection has

been made out and though exclude the application

of any discretion to those grounds of objection

which are not mentioned in 47(1).

That, as His Honour Mr Justice McHugh in

the Court of Appeal thought, was a persuasive

if not a compelling ground for regarding 47(2)

as being directed similarly to stating exhaustively

the extent of the discretion to refuse an application

and His Honour correctly, as we would submit,

found that the fact that 47(1) and 47(2) addressed

itself to all the available grounds of objection

described in 45 added weight to what he had found

as the persuasive reason, at least, for treating 47(2)
as exhausting the discretion or the situations

in which a discretion exists.

To that, in our submission, may be added

section 57 which provides a discretion to refuse,

in subsection (2), an application for removal

of a hotelier's licence if the court:

C2T5 7 /1 /ND-	27	1/6/89
0' Sullivan ( 2)

considers that the removal would adversely

affect the interests of the owner or a

lessee or mortgagee -

my print says "mortgage" but I take it that means

"mortgagee" -

of the premises from which it is proposed
to remove the licence, or a sublessee from

the lessee or sublessee of those premises.

Your Honours will remember that I drew attention

to section 44(1)(g) when addressing the qualification

of objectors and 44(1)(g) includes in the qualified

objection, "lessee or mortgagee", et cetera,

of premises:

in the case of an application for removal

of a hotelier's licence~

That seems clearly to be included simply to enable such an objector to raise the discretionary ground

for refusal of an application for removal but

in the case only of a hotelier's licence.

It would seem difficul~ if that be correct,

to find a discretion to refuse the removal of

an off-licence on similaF grounds, a matter to

which His Honour Mr Justice Mahoney addressed

his attention and concluded that such a discretion

existed because of the public interest in saving

people from bankruptcy or serious financial injury

or some such consideration.

(Continued on page 29)

C2T57/2/NU	28	1/6/89
O'Sullivan(2)

MR STAFF (continuing): If that were so, and a ground for finding

a general discretion, there would be no need for

the provision in 57(2), nor that in 44(l)(g), and

it would certainly be odd to find the legislature

spelling out the 57(2) discretion in express terms,

but leaving identical circumstances in the case of

an off-licence, as providing a discretion for the

refusal of a licence.

So that, to find that discretion in those

express terms, conferred by 57(2), in our submission,

adds to the persuasiveness of the conclusion that

47(2) is an exhaustive definition of the extent of

discretion conferred upon the licensing court, at

least in the case of removals. Of course, as well,

we have the circumstance that the structure of the

1912 LIQUOR ACT of New South Wal	was quite
different from the structure of	1982 Act. One,
perhaps, may ask why the change	tructure, if a

change in legislative intention was not intended

to be expressed.

The decisions over the years had made it clear in New South Wales, under the 1912 Act, that a general

discretion to refuse or grant a licence existed.

That conclusion was reached because the jurisdiction

to grant or refuse to grant applications for new
licences - for removals, and the like, was conferred

in general terms by the words, "The Court may grant

an application for a new licence or a removal", and

grounds of objection were set out as permissible,
but no direction as to the consequence of a finding
of those grounds having been made out, were included

in the Act. Indeed, no provision was made in ,e

1912 legislation in relation to discretions in ~xpress

words, at all.

The conclusion that a discretion existed

notwithstanding that no objection was made out still

to refuse an application, or to grant, notwithstanding

that objections had been made out, was reached on a

consideration simply of the subject-matter of the

legislation, and from the general words in which

the grant of jurisdiction to deal with application8
of whatever character	was expressed ..... .

came to enact the new legislation it has adopted a

very different structure. Whether section 18 provides
the jurisdiction in respect of removals, or only in
respect of original grants and jurisdiction has to be
implied in respect of removals, does not seem to
matter very much, in our submission, because the
implication in respect of the removal of jurisdiction

would surely be an implication in similar terms to

that of the grant in respect of original application.

But, one then finds in the structure of this

legislation, not only the detail and provisions as

to the qualification of particular people to be

C2T58/l/FK	29	1/6/89
O'Sullivan(2)

objectors, but the specification of what notices

of objection need to say, and in certain cases, the

requirement that they need to spell out the reasons

for taking the particular ground of objection, and

then, having gone to that trouble, the legislature

includes section 47, dealing specifically with

discretions, both to grant and refuse, and indeed

adds to section 47(3) which is directed towards

insuring that an applicant is made aware of some

complaint to be taken against his application

at least before it is refused.

(Continued on page 31)

C2T58/2/FK	30	1/6/89
O'Sullivan(2)

MR STAFF (continuing):  If there is a general discretion

one would have expected the legislature, in spelling
out subsection (3), to extend it to cases in which

the court, similarly to those to which subsection (3)

relates, intended to raise a discretionary matter

against the applicant, but is it, I might ask
rhetorically, to be thought that the legislature has omitted to thinl:
about the apparent possibility of denial of natural

justice implicit in limiting section 47(3) to the

matters to which it is specifically directed and in

not extending it expressly to any other matters or

considerations which it may be thought by the court

might ~ead to the exercise of discretion against

the application, notwithstanding that all objections

have failed, all objections of which the legislature

has said that the applicant must be made aware by

notice, notwithstanding that they have failed, or

notwithstanding that none have been made again

this general discretion area, if it exists, is an

area to which the legislature has given no attention.

In the light of the particularity of section 47

and of the objected grounds, we submit that is a

conclusion which ought not to be reached. It is

perhaps interesting also to note and, we submit,

persuasive towards the conclusion for which we contend,

that nowhere in the Act is there anything said about
the qualification of a person who may raise a
discretionary matter not being one of the grounds
of objection, but being a matter of discretion

suggested to lead towards a refusal of an

application.

Nothing is said about the qualification of a

person who wishes to raise some such matter, nothing

is said about notice of such a matter being given by

such a person, and one is left to speculate as to

whether an objector who has a qualification to appear

who fails to make out his notified objection is

still entitled to take some discretionay matter

as a bar or as a reason for refusal of the

application to which he has unsuccessfully objected.

The alternative view, I suppose, is that if there

is a general discretion perhaps it is only the Court

which is intended to take the point against the

grant of an application, but the absence of any

direction legislatively in the light of the structure,

we submit, is a powerful factor but not, of course,

conclusive, but a powerful factor leading to the

conclusion for which we contend.

His Honour Mr Justice McHugh below expressed

some puzzlement as to why section 47(2) was framed

so as to operate or to cover the case where an

objection has been taken and not made out. What we

suggest in paragraph 6 of the outline is that the
case which the legislature is intending to encompass

by extending section 47(2) to the case described

C2T59/1/HS	31	1/6/89
O'Sullivan(2)

1s one where an objection has been lodged, reasons

having been given for it in accordance with

section 46, the reasons to make good the objection

have failed to be made out.

(Continued on page 33)

C2T59/2/HS	32	1/6/89
O'Sullivan(2)

MR STAFF (continuing):  But in the course of the hearing,

facts have emerged which suggest to the Court

that some other factors are present, which

may make it undesirable to grant the

application, and theymaybe factors, or in

the terms of the legislation, reasons, if

I could use that word in that sense, reasons

different from those proffered by the

objector, but reasons leading to the making

out of the same ground of objection, as the

objector had taken.

For instance, it nay be that an objector

had taken a ground that a person was not a

fit and proper person for the reasons that

he had been convicted of offence a,b,c and d

and it may turn out that he was not convicted

for any of those offences so that the

objection is not made good. But it may, at

the same time, turn out that he was convicted

of offences x,y and z, which the tribunal,

at least provisionally, might form the view

made him unfit and so they then resort to

the procedure set out by -subsection (3) of

section 47 and conclude that the applicant

is, for those reasons, not a fit and proper

person.

It is that class of case, or type_ of case, to which the provisions of section 45(2), in

so far as they refer to a ground having not been

made out, is concerned and one would think that

nothing extraordinary in that, with respect to

His Honour Mr Justice McHugh, who seemed

puzzled by it.

Your Honours, we add to what we have put

the submission that section 47 addresses itself

to, in one subsection or the other, to all

the grounds of objection which section 45
describes.	Subsection 1 directs itself to

the grounds set out in 45(2) and 45(3);

subsection. (2.) directs itself to all but the

public interest ground, that is, 45 (l)(a),

(al) and (b) and omits (c). That omission,

we submit, could not have been accidental.

It must have been a deliberate omission and

because of the public interest ground is

deliberately omitted. The only conclusion, in

our submission, is that the legislature, having

intended to do so, intended to remove objections

on grounds of public interest from the

discretion. I am sorry, perhaps I should not

use "objections" as the description there

because plainly, of course, the making out of

an objection may lead to a refusal, without the

exercise of any discretion, but the omission

C2T60/1/CM	33	1/6/89
O'Sullivan(2)

of (c) from any part of 47 (1) or (2),

we would submit, leads to the conclusion

that, unless an objection is made out in

respect of a public interest complaint or

ground, no discretion was intended in

respect of it. There is simply no other

explanation, in our submission, of the

omission.

So far as the section 57 point taken

by my friend is concerned, it would be

our submission that section 57(1)

makes it plain that the interest of people,

being members of the public of a neighbourhood,

in the location of the sight -that is the

existing location of the sight of a licence

which it is desired to remove, is not to be

the subject of investigation where the

removal is within the same neighbourhood.

(Continued on page 35)

C2T60/2/CM 34 1/6/89

O'Sullivan(2)
MR STAFF (continuing): That is consi tent with the law as

settled probably 20 years c 5o, or nearly so, in
STROUD, a case to which my learned friend referred.

It is, of course, an implication which one draws

from section 57(1) because section57(1) directs that

a::firmative l v to what has to be made good or made out

in the case where you are dealing with a removal

from one neighbourhood to another neighbourhood.

But the fact that it leaves unsaid anything

in respect of a removal within the same neighbourhood,

we would submit, leads to the conclusion that the clear

legislative intention was to remove that sort of issue

from consideration where the licence was to remain

within the same neighbourhood. Subsection 4

reinforces that view because it removes also ~rom

consideration in that same case, that is wher the licence remains within the same neighbourhood the satisfaction of what I might describe in shorthand

as the "needs test", one which used to be known as

the "requirements test" but came to be known as

the "needs test" because it was expressed in terms

of need by amendment in about 1980. But that is

the ground of objection described in section 45(2),

that the needs of the neighbourhood can be satisfied

by existing facilities within or without the

neighbourhood.

Taken with sect ion 5 7 ( 1), the removal of that needs

ground as a prerequisite for satisfaction in a

case of an application for removal within the same

neighbourhood indicates clearly a legislative

intention that the Court is not to be-concerned
with the impact, detrimental or otherwise, upon the

convenience of a section of the public within the

neighbourhood within which a licence is, and is

proposed to be, removed.

It is that very factor that the learned

magistrates, of course, in the present case, took

account of and by reference to which exercised

their discretion against the grant of the removal

application in the present case. If, of course,

those propositions be right, namely that if a

discretion existed in general terms to refuse an

application the magistrates refused it in the present

case on a wrong criterion, by reference to an

irrelevant consideration and that would, if

Your Honours came to that conclusion, dispose of this case without need for consideration of whether or not

a discretion existed.

GAUDRON J:  Mr Staff, could I ask you this about section 45(2).

In that subsection the reference to the needs of the public in the neighbourhood of the premises to which the application relates, does that refer to the place

to which the licence is to be removed?

C2T61/l/DR	35	1/6/89
O' Sullivan(2)
MR STAFF:	Yes, Your Honour.	Because of the definition in
section 43 - - -

GAUDRON J: And exclusively to that, so it does not refer to the

place where the licence exists?

MR STAFF:	That would seem to be so, particularly in the light
of sect ion l:-3 (b) - ... -

GAUDRON J: Yes.

MR STAFF:	- - - because section .:'.~3 says in section.:'.~~ the re:erence
to the premises to which tne application relates means
the old and the new premises.  In any other case it
means it relates to the premises to which, if the
application we·re granted, the licence would be removed.

GAUDRON J: If you take that neighbourhood in the general

licensing sense, there does not seem to be much room
for that subsection to work in the case of transfer

within the neighbourhood anyway.

(Continued on page 37)

C2T61/2/DR	36	1/6/89
O' Sullivan(2)

MR STAFF:  That is so·and that was the conclusion which

the Court ~f Appeal in New South Wales reached in EX PARTE STROUD in relation to the 1912 Act

which used similar language. Because it was

said there was no room for the application of

that sort of criterion - I think STROUD was

concerned more with the provision in terms of

section 57(1) than the needs then or .

requirement ground but the principle was the

same, namely that where .you are looking at the

same neighbourhood then the needs of the public

or the requirements of the public or whether

the public will be detrimentally affected by

the removal is something that - - -

GAUDRON J:  But that is not what I read 45(2) to be talking

about at all. You go to the neighbourhood of

intended removal and you ask in respect of that

neighbourhood whether its needs can be met by

existing facilities either in or outside the

neighbourhood.

MR STAFF:  Yes, and that is the very provision which is

excluded by section 57(2).

GAUDRON J:  Yes, but that is not what is in issue in this

case at all, is it?

MR STAFF: Yes, it was, Your Honour. This is a removal

within the same neighbourhood.

GAUDRON J:  Yes, but there is not a second neighbourhood

whose needs are to be independently considered,

as it were.

MR STAFF:  No, that is so. The present case is a case

of a proposed removal from one place to another
within the one neighbourhood, the same identical
neighbourhood, so that, in the case of each
premises you would be lpoking at the needs of

the same public of the same neighbourhood and

"Well, that's an irrelevant consideration in	that presumably is why the legislature says,
the case of a removal within the same neighbourhood" presumably on the footing that the needs of the
public in the neighbourhood are the same wherever
in the neighbourhood the premises intended to serve the neighbourhood are situated.

That may be a contemplation that as a matter

of hard practical fact one might speculate upon

but that seems to be the legislative assumption.

GAUDRON J:  But there are, are there not, two quite distinct

considerations, the needs of the neighbourhood

to which the licence is sought to be removed

C2T62 /1 /ND	37	1/6/89
O'Sullivan(2)

and the interests of the neighbourhood from which

it is going. The former is dealt with by 45(2),

the latter by 57(1).

MR STAFF:	That is so, Your Honour.
GAUDRON J:	And subsection (4) does not say anything, as

I understand it, or does not exclude, if you

take that view, any consideration of the public

interest of the neighbourhood, where it was and

where it was going to remain.

MR STAFF:  That is the very subject-matter, Your Honour,

to which 57(1) addresses itself.

GAUDRON J:	In respect of an hotel, is it?
MR STAFF:	No.
GAUDRON J:	Or an off-licence?
MR STAFF:	Or an off-licence, and it says that is something

which you consider or the applicant has to satisfy

the court about that there is no detrimental

effect - - -

TOOHEY J: Perhaps only if you are moving outside the

neighbourhood.

MR·STAFF: Yes, Your Honour. If you are within the

neighbourhood then the legislation says nothing

about it. By inference it says it is.not a relevant

consideration.

TOOHEY J:  So that if the proposal is to move the licence

within the neighbourhood but adjacent to a

school - - -

MR STAFF:	That would be a ground under 45(3) (d). Ye~ (d) and
(e) are directed to, perhaps in a general broad

sense, similar subjects-matter. It is perhaps

interesting that there used to be a much broader

range of express prdhibitions.or grounds for

objection related to proximity to schools, places

of worship ancl - I have forgotten what other

things. But the grounds for objection are more

limited under 45(3) but they do exclude:

a place of public worship, a hospital and

a public school

Private schools, apparently, .are left to look

after themselves.

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MR STAFF (continuing):  So that what we say in answer to the matter

are co take into account the detrimental effect put by Justice Gaudron is that 57(1) recognizes that you

on people in the immediate vicinity or the vicinity
of the present premises of a removal but, by
inference, says that is not a factor where the

removal is within the same neighbourhood.

BRENNAN J: 

Mr Staff, is there any reason why one should

not construe this complex of sections in the
following way: that there is an implied general

power to grant removals but there are some provisions

which expressly limit that power, for example,

57(1); that there are some provisions which govern

who may make an objection and the grounds on

which those objections may be made but, irrespective

of objections or no, generally speaking, the

discretion is at large?

MR STAFF: 

Your Honour, we would submit that whilst that

was the approach to the New South Wales and some

other legislation adopted generally in the past

in relation to other legislation the express

and detailed provisions of this particular legislation

seen against the historical structure of the

old legislation and the particular provisions

of section 47, deny that conclusion. It is,

in the end, I suppose, very much a question of

a value judgment as so often questions of construction

are. We have endeavoured to put what we see

as the arguments in favour of the construction

for which we contend and I do not know that I

can - indeed, I feel certain, I cannot assist
any further. So, I had, with that answer to

Your Honour, intended to submit finally that the appeal should be dismissed with the usual consequence, if the Court pleases.

MASON CJ:  Yes, thank you, Mr Staff. Yes, Mr Gyles.

MR GYLES:  Your Honours, my learned friend has submitted

that the removal of a licence amounted to the

grant of a fresh licence. I would submit that

is wrong. Some pointers to that conclusion:

section 43, when it refers to the removal of
a licence, describes it in this fashion:

In relation to removal of a licence, a reference ..... to the premises to which an

application relates is a reference -

(a)in section 44 - to both the premises

from which, and the premises to which, if

the application were granted, the licence

would be removed.

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Section 57(3) contains the procedural regime:

The grant of an application for removal

of a licence to premises other than those

specified in the licence takes effect when

the registrar endorses the licence to the
effect that those other premises are the

premises to which the licence relates.

So, the legislation proceeds upon the footing

that it is the licence which is so endorsed.

Sections 18(9) and 18(10), which deal with a

particular situation, admittedly, granting a

new hotelier's licence:

Do not authorise the court to grant -

such a licence -

unless it is satisfied that an existing

hotelier's licence is not available at a

reasonable market price for removal to the

premises -

So that the assumption is that you remove the

licence to the premises; you do not have a surrender

and fresh grant and, indeed, there is no mechanism

whereby that can be done.

(Continued on page 41)

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MASON CJ:	If it is not the grant of a licence, where does one actually find the source of the power?
MR GYLES:	That is the question, I think, that His Honour

Justice Brennan asked me at the conunencement and it is an implied power.

MASON CJ:	Well, where does it come from?
MR GYLES:	Principally, Your Honour, sections 43, 45 to 57 and the other provisions which refer to removals.'
MASON CJ:	So, it does not come from section 18?
MR GYLES:	No, it does not, Your Honour.
MASON CJ:	I had thought that the basis of your argument was that the power came from section 18 and that,
therefore, the Court had a wide power to refuse or grant, which generally embraced notions of public interest.
MR GYLES:	Your Honour, my starting point was that

section 18, which deals with grants of licences

and lays down the basic function of the court,

is clearly expressed in discretionary terms; and

it supports the view,that, within this field of
liquor licensing, the public interest is the major

topic and that the discretion is wide. Now, below,

Mr Justice Mahoney saw itas an implied power.	i;<e
with respect, agree with that.	Both of the judges

below saw section 18 as throwing light upon the

statutory scheme.

Your Honours, the passages in EX PARTE JOYCE

RE STROUD, which indicate the then debate, if I could

put it that way, page 5 - it is an indistinct

numbering at the top right-hand corner, point 5

of the page, the full paragraph which starts:

If this Court accepts that decision of

fact, as it must, it was for the licensing

Court then to consider under s .39 ( 4B) ,

assuming the section to have an

application.

The question being, whether or not it applied

where there was a transfer within the same

neighbourhood.	The following page, the first full
paragraph:

It is clear that the section will have

a greater sphere of operation in

circumstances where there are two distinct

or separate neighbourhoods. The section

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then requires the Licensing Court to

satisfy itself that it is in the

interests of the public in the neighbourhood

to which the licence is to be removed that

it should be removed. It requires as well

that an opposite conclusion be formed,

namely that the removal will not

detrimentally affect the public in the

neighbourhood of the existing premises.

When i-~ have a situation, as we have here ,

where the sub-section is applied to one

neighbourhood, it is for the court to

consider and satisfy itself that removal

is in the interests of the public of that

one neighbourhood. In such circumstances

the reference to detrimental affectation

is but another description of the same

concept.

In my opinion the Licensing Court

took the view that the present case, with

some qualifications, was an extension of

the case where it is proposed that a

licence should be removed to premises

immediately adjacent.

And so on. And then, on the following page, the

first full paragraph:

Nor do I accept the submission that the learned Magistrates erred in law by placing too narrow a meaning on the expression "interests of the public" by confining those interests to the actual

demand for and supply of liquor. The

expression "interests of the public" even

in its application to the interests of the

public in a limited geographic area is an

expression of wide and general import.

There is in the judgment nothing which

demonstrates that the learned

Magistrates thought that the expression did not extend to matters of public interest

connected with the demand for or. supply of

liquor.

And so on. Your Honours, my learned friend referred

to section 44 and as I understood it he was doing

that to indicate a limited class of persons who can

object.

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MR GYLES (continuing): Amongst those persons,

I remind Your Honours, are:

(b) a person authorised in writing by

3 or more residents of the neighbourhood

within which those premises are, or will be

situated.

So any three residents is all one needs to have

an objector. Then there is:

the licensing inspector or a person authorised

by the superintendent of licences;

the member of the police force ..... a person

who satisfies the court that his interests

..... are ..... affected .....

the Principal Registrar; or
any other person with the leave of the court.

I would submit that the class of persons is extremely wide.

Your Honour, my learned friend, Mr Staff,

put a proposition that because of the possible

interest of, for example, a lessor in the business -

a new lessor of a business - section 45(l)(b) might

be relevant to removal. Your Honours, in my

submission, that situation is dealt with :i.n section 101 of the Act, particularly 101(4)

where there is an obligation to, as you would expect,

inform the registrar of the court of any person

other than the licensee becoming interested in

the business or the conduct of the business.

So that in the event there was a removal to a

new premises and a lessee by some means, a

turnover provision, becomes interested, an

affidavit within 14 days is filed with the court

and if there is anything flowing from that then

proceedings would be taken pursuant to Division 8,

commecing with section 66 of the Act where there

are provisions for complaints based upon, inter alia,

fitness and propriety and one of the consequences

may be suspension or cancellation. So that would

be not a reason in support of my learned friend's

construction of the Act, in our respectful submission.

TOOHEY J:  Mr Gyles, do the regulations contemplate that

in the case of an application for the removal of

a licence within the neighbourhood the orthodox

procedures of advertisement, lodging of objection

and the like would be followed? I only ask you

that because, looking at the regulation-making

power in section 156, it seems to draw a distinction

between applications and the endorsement of licences -

perhaps it is not right to say it draws a

distinction - but at any rate, there is reference

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specifically to the endorsement of licences

and that is something that apparently applies
in the case of death or disability as well as

removal of a licence within the neighbourhood.

MR GYLES:  Yes, Your Honour. My learned friend says

regulation 12 deals with advertisements and

regulation 12(1)(b) does not distinguish between

the two situations, Your Honour. So the answer

to Your Honour's question is no, there is no

distinction apparently between the two situations.

My learned junior reminds me that section 43 -

yes, well, it is a different point.I think they

are all the matters that I wish to put before

Your Honours.

MASON CJ:  Thank you, Mr Gyles. The Court will consider its

decision in this matter.

AT 3.51 PM THE MATTER WAS ADJOURNED SINE DIE

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