O'Sullivan v Farrer

[1988] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S91 of 1988

B e t w e e n -

MARIE O'SULLIVAN

Applicant

and

RONALD JAMES FARRER

First Respondent

and

NEWCASTLE LICENSING 'INSPECTOR

Second Respondent

Application for special leave

to appeal

MASON CJ

o' Sullivan

BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 NOVEMBER 1988, AT 2~29 PM

Copyright in the High Court of Australia

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

MR S.B. AUSTIN, for the applicant. (instructed

by Braye Cragg Fox Maher)

MR D.A. STAFF, QC:  If Your Honours please, I appear

with my learned friend, MR J.F. KILDEA, for the

respondent. (instructed by Kalyk Hansen Deegan)

MASON CJ: Yes, Mr Gyles?

MR GYLES:  Your Honours, the main special leave point is

whether Mr Justice Mahoney was correct when he

held that under the Licensing Act as it now stands

the court in granting or refusing an application

can go beyond matters on which objection may be

taken under section 45.

I have here, Your Honours, four copies of the Act as it now stands. Your Honours will see

that section 45 appears in Division 5 of the Act,

"Objections to applications." Section 18 on

page 17 is the general granting provision.

Section 45 deals with grounds of objection and section 45(1) has three alternatives. First of

all:

(a) that the applicant is not a fit and

proper person ....

(b) that,a person directly or indirectly

interested in the application or in the

1::usiness, or the profits of the business .....

is not a fit and proper person to be so

interested.

And then (c), which assumes importance in the

present case, is:

that for reasons other than the grounds

specified in paragraphs (a) and (b) and

subsections (2) and (3), it would not be

Subsection (2) deals with the application for or in the public interest to grant the application.

the removal of a licence from one neighbourhood to
another and subsection (3), whilst not limiting

the grounds in subsection (1), sets out a series of

further grounds some of which would, on their

face, appear to relate to the grounds in

section 45(l)(a) and (b).

Section 46 deals with the taking of objections

and section 47, which is the other critical section,

in (1) says:

Notwithstanding a finding by the court

that a ground of objection to the grant

of an application specified in section 45(2)

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or (3) has been made out, the court has a

discretion to grant the application.

(2) Notwithstanding that an objection to

the grant of an application for a licence on

the ground specified in section 45(l)(a) or
(b) has not been taken or made out, the
court may refuse the application if it finds,

after subsection (3) has been complied with -

(a) that the applicant is not a fit and

proper person to be the holder of a

licence; or

(b) that the person directly or indirectly interested in the application ..... is not

a fit and proper person -

and (3) provides for, in effect, natural justice

in relation to such a finding. Your Honours, at the

moment I do not think I need to go to section 57 which

is the other relev~nt section~

Under the LIQUOR ACT before 1982 and under

cognate legislation, the received wisdom has always
been that. licensing involves the public interest;

that there is an overriding discretion in the

Licensing Court whether to grant or refuse a licence

whether or not a particular objection has been made

out, and there are a long series of decisions to that

effect in various places including New South Wales.

The question is whether the 1982 Act has abandoned

that fundamental principle of licensing law

because the effect of the decision below is that the

court, in granting or refusing an application, is,
except in the circumstances outlined in section 47,

limited to an objection taken under section 45 and

in accordance with section 46 that there is no general

residual discretion to refuse the grant of an

application. Your Honours, we submit that is

par excellence a special leave point. It applies to

all applications; it involves consideration of a

fundamental principle of licensing law. And we

have here Mr Justice Mahoney saying in a reasoned

decision, the gene_ral principle has not been set
aside by the terms of these sections and, indeed, he
puts it on two alternative bases. Mr Justice McHugh
is to the contrary view, based upon a close textual
analysis of the Act which leads His Honour to say
that the legislature really could not have intended
the result.

Now, given that Mr Justice Mahoney is in our favour in a reasoned decision, Mr Justice McHugh ends

up with the position where he says, "Well, I think I

am driven to that conclusion by the words of the

section but I don't think the legislature, surely,

intended this result and it calls for legislative

action", I would submit it is an appropriate case for

special leave.

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MASON CJ: Is there not a fundamental principle that we do

not grant special leave in licensing cases?

MR GYLES: Is that a recent principle, Your Honour?

MASON CJ: It ought to be, Mr Gyles.

BRENNAN J: It is one which has got a certain attraction,

Mr Gyles.

MR GYLES:  Yes. Well, it is a very easy - the application,

but it is an important area of statute law and

practice, Your Honours.

MASON CJ: Yes, it is. What I really had in mind was that

the Licensing Act· is somewhat like legislation

respecting town planning, its interpretation and

application is very much a matter for courts that

deal with these questions with a great deal of

frequency and regularity. What is there about a

particular case that gives it that character that

takes it out of the ruck and requires it to come

to the High Court which, of course, does not have

that familiarity with the interpretation and

application of the detailed legislation?

MR GYLES:  May I start with the proposition, in answer to

that, that there should be no a priori exclusions

of classes of case. That is wrong in principle.

The right . question is the question Your Honour

has just asked me and that is what is special about

this case in its context and the answer is that in

cases, including cases in this Court, a general

principle has been laid down that the nature of a

licensing case is of an inquiry as to a matter of public
interest; that whilst there may be procedural steps

along the way, at the end of the day the licensing

authority has a residual discretion to say yes or

no and to do so for reasons - - -

GAUDRON J:  Does that- suggest that it is a cli.fferent type of inquiry

from any other conducted under legislation? -

MR GYLES:  No, Your Honour, no, but it does suggest that

where there is an administrative inquiry which is

the nature of it, and having in mind the history of

it, that is the way these statutes have been

construed including authorities in this Court.

GAUDRON J: You have to find in the Act , do you not, a general

discretion of the type you assert?

MR GYLES:  It is a statutory jurisdiction so it must be found

there but that has always been so, Your Honour.

GAUDRON J: Where is the source of the discretion?

MR GYLES:  As disclosed by Mr Justice Mahoney. The source of

the discretion is section 18 which is the provision

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which says they can grant or refuse the licence.

The question .is how can section 18 be cut down,

and the courts have, in the past, said it cannot

be. And that, we submit, is received wisdom.

The answer in this case was that the provisions

of section 47 have that effect.

Your Honours, as to the point about the

courts below being familiar with the jurisdiction,

the Licensing Court, it will be recollected, found

in our favour, the court most used to dealing with

the problem. The Court of Appeal were divided upon

the question so that the advantage which they have

had of looking at similar cases did not assist them

in the present case to come to a unanimous view.

MASON CJ: Yes, I concede that is a strong point. The Court

of Appeal has differed from the court that ordinarily

administers this legislation and there is a divided

view there.

MR GYLES:  Yes. And, Your Honours, we have in this case

several - I mean, there are about three questions

of statutory construction which arise apart from

what I have called the general principle and I

submit I could show in each of those that there is

a very good arguable case that our argument is

correct. Now, in relation to those matters

Your Honours will say, "Well, they are just simply matters of statutory construction", but I do submit

that where they do arise in relation to a topic

such as removal of licences which is cropping up

day by day, it is not inappropriate that this

Court, provided it is satisfied that the case is

general enough, should grant leave. And I can expand

on those issues of construction if that would assist

my submission.

BRENNAN J: This may lead you to it, Mr Gyles. One of the

problems I have with it is that if there is a

question of general discretion, that arises because

MR GYLES: Section. 18, yes, Your Honour. of the provisions, I take it, of section 18 - - -?

BRENNAN J: - - - and we are concerned here with the removal

of a licence from one place to. another within the

same neighbourhood. And we find in section 57(1)

that if it is for removal outside the neighbourhood
then public interest is not to be taken into account.

So the legislature has said~if you take it _outside _

the neighbourhood the interests of the public or the

neighbourhood from which it is proposed to remove it

shall not be taken into account, yet we are going

to be involved in a general question under section 18

with removal within a neighbourhood.

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MR GYLES:  May I submit Your Honour has misread the section.

BRENNAN J: Please do, yes.

MR GYLES:  Because, on the contrary, section 57(1) makes it

mandatory - there is a mandatory pre-condition

to removal outside the neighbourhood, that there

be satisfaction that it will not detrimentally- - -

BRENNAN J: Of course, yes.

MR GYLES:  So the starting point is that there is that

mandatory pre-condition in relation to matters

transferred outside the neighbourhood. We say

that so far as matters within the neighbourhood

the general discretion lies. In other words, it

is not a mandatory pre-condition, it is merely a

consideration which they may take into account and
weigh it up for or against, and that, of course,
as Your Honour understands, is precisely what

happened in the present case. The Licensing Court

held that the public interest in serving the public

in the immediate vicinity outweighed the private

interest of the people that wished to remove the
licence to their premises. That, Your Honours,

was one point of departure between Mr Justice McHugh, on the one hand, and Mr Justice Mahoney on the other.

Mr Justice McHugh held that section 57(1) negated

the relevance of that point in relation to a

transfer inside.

Now, Your Honour will see from the way I

have endeavoured to deal with it, we draw precisely

a different conclusion from it. We say that

far from negating it, it means that it is - all it

does is leave it within the range of discretionary

considerations without elevating it to the level of

a mandatory pre-condition.

BRENNAN J: Yes, I had in mind what Mr Justice McHugh said

at page 64.

MR GYLES:  Yes, and Your Honour now sees how it was used.

BRENNAN J: Yes.

MR GYLES:  And we say that that was a fundamental point of

construction which led His Honour to the actual
decision. That was one of the matters of statutory

construction to which I would otherwise have drawn

attention. But I fear if I cannot persuade

Your Honours that the general point here is of

sufficient importance, I would be in difficulty

with some of the more detailed points. But at the

end of the day, that point that Your Honour has just

referred to, decides the case because His Honour

Mr Justice McHugh, in the end, said, "Well, maybe

there is a procedural way around all of this but I
will not take it because of my construction of

section 57." And, Your Honours, even if, contrary

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to our submission and contrary to Mr Justice Mahoney's
view, there is no overriding situation where the

Licensing Court can take into account any objection

that you raise, it is our submission that

Mr Justice McHugh and Mr Justice Yelclli.am. were wrong

in their construction of section 47, for several

reasons: the first is that section 47(2) does not

apply to an application for removal of a licence at

all and, secondly, because there are special reasons

why section 45(l)(a) and (b) are referred to but not

section 45(l)(c).

So, if Your Honours please, they are the

reasons why we submit it is an appropriate case

for special leave.

MASON CJ: Yes, Mr Staff?

MR STAFF:  Your Honours, our submission is that, primarily,

that the case is not appropriate for special leave,

firstly, because the questions involved are mere

questions of statutory construction of the Licensing

Aet. an Act which, historically, one knows, has been

amended, repeatedly, by Parliament as occasion, in
its mind, arose and the result which follows the

majority judgment here is one which if the legislature

did not like it. it could readily change. It is not,

in our submission, a matter of sufficient public

importance to warrant this Court's attention to it

rather than Parliament's if Parliament thinks the

result is not one which it desires.

The second question of statutory construction, the

section 57 question, is even a narrower question and

is one which, in our submission, could not be

imagined to be a matter which would often arise in

the course of the administration of the Act. In effect,

what the maj.ority of the Court of Appeal has said,

as Your Honours will have appreciated, is there is

no general discretion of the type contended for

because, primarily, of section 47 and its specific

provisions, but even if there were a discretion,

it is not exercisable in the circumstances of the

present case.

The first matter on which the appellant would need to succeed before the second question ~ that is the

section 47 question - arises is in persuading this
Court that the discretion, if it existed, could not

be exercised in the circumstances of this case. I think I put that negatively rather than positively but Your Honours will have followed the intent of

the submission. Nor is there anything to suggest,

in our submission, that the question of whether

there is a residual discretion or not is one which

occurs or is likely to occur with any frequency in the

Licensing Court. Indeed, having regard to the general

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structure of the Act, one might infer, as we would

ask Your Honours to do, that it would have a very,

very limitP-d scope for operation because as

Your Honours will recall there are a series of grounds

of obJection which the statute says may be taken

by particular persons. They cover a wide ranging

field of a rather diverse character and there is a

general ground of public interest which may be

taken.

So that so far as any matter of public interest

is concerned, section 47(l)(c) provides for it if

objectors wish to do it. What is said here to be a

matter of general or public interest is said to be

so on a very, very narrow and unusual basis.

In all those circumstances, we would submit the case is not one appropriate for special leave. If the Court pleases.

MASON CJ:  We need not trouble you, Mr Gyles. There will be

a grant of special leave in this case.

AT 2.49 PM THE MATTER WAS ADJOURNED SINE DIE

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