R v Licensing Board of Tasmania; Es parte Woolworths (Victoria) Pty Ltd and Anor
[2001] TASSC 150
•21 December 2001
[2001] TASSC 150
CITATION:R v Licensing Board of Tasmania; Es parte Woolworths (Victoria) Pty Ltd & Anor [2001] TASSC 150
PARTIES: R
v
LICENSING BOARD OF TASMANIA
WOOLWORTHS (VICTORIA) PTY LTD
(ACN 004 177 155)
KENT, Michael
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M144/2000
DELIVERED ON: 21 December 2001
DELIVERED AT: Hobart
HEARING DATE: 7 August, 29 October 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicants/Prosecutors: M E O'Farrell
Respondent: P Turner
Objector AHA: A I Gaggin
Solicitors:
Applicants/Prosecutors: Dobson Mitchell & Allport
Respondent: Director of Public Prosecutions
Objector AHA: Murdoch Clarke
Judgment Number: [2001] TASSC 150
Number of paragraphs: 12
Serial No 150/2001
File No M144/2000
THE QUEEN v LICENSING BOARD OF TASMANIA;
Ex parte WOOLWORTHS (VICTORIA) PTY LTD
(ACN 004 177 155) and MICHAEL JOHN KENT
REASONS FOR JUDGMENT COX CJ
21 December2001
The prosecutors seek an order of certiorari to quash the decision of the Licensing Board of Tasmania ("the Board") whereby it refused three applications to substitute a general liquor licence for an off-licence in respect of outlets at Rosny, Claremont and Campbell Street, Hobart owned by the first named prosecutor and of which the second named prosecutor was the licensee. The prosecutors filed with the Commissioner for Licensing an application in respect of each outlet in December 1998 on the basis that they wished to enhance their retail operations thereat by having for sale a range of 20 still wines, thereby enabling their customers to sample and purchase different wines whilst at the premises. For this purpose they required a general licence which, if granted, would also have enabled them to sell single bottles as opposed to being restricted to sales of a minimum of nine litres set by the off-licence already held, and would have enabled them to trade for longer periods of time, including Sundays.
On 28 January 1999, the Australian Hotels Association Tasmanian Branch ("AHA") by its State Director, Ms Denita Harris, lodged an objection with the Board to each application in virtually identical terms, stating as its reasons:
"1A new licence is unnecessary as the hotels in the vicinity of the site to which the application relates satisfies the need intended to be satisfied by the applicant.
2A new hotel would not aid and promote the economic and social growth of Tasmania in assisting with the orderly development of the hospitality industry in the State.
3That the facilities intended to be provided by the applicant do not meet the standard requirements of a general liquor licence.
4The AHA strongly objects to this application and will expand upon the reasons for objection during the hearing."
The prosecutors had notice of the contents of these objections well before the hearing by the Board on 19 and 20 October 1999. Objections were also lodged by a hotelier, Mr Jim Bleasel, and a Claremont resident, Mr Nigel Amos. At the hearing, the AHA was represented by Ms Harris and claimed to speak for the licensees of several hotels within the areas of the three outlets in question. The prosecutors were represented by their State merchandise manager, Mr Glenn Travers, who was assisted by Miss Christine Cox, a recently admitted legal practitioner, and Mr Christopher Watson, another employee whose task was primarily to marshal the witnesses intended to be called by the prosecutors. Mr Bleasel appeared and represented himself, as did Mr Amos.
The orders are sought on the following grounds:
"(i)there was procedural unfairness and a breach of natural justice in that the Board failed to afford the prosecutors a reasonable opportunity to ascertain before the hearing the nature of the evidence and material advanced against them by objectors to the applications; and
(ii)there was procedural unfairness and a breach of natural justice in that the Board failed to afford the prosecutors an opportunity at the hearing to cross-examine people who advanced evidence against them;
(iii)there was procedural unfairness and a breach of natural justice in that the Board failed to afford the prosecutors an opportunity to call approximately 15 witnesses at the hearing to give evidence in support of the applications;
(iv)there was procedural unfairness and a breach of natural justice in that the Board failed to afford the prosecutors a reasonable opportunity to challenge or contradict material advanced against them at the hearing."
The Liquor and Accommodation Act 1990 ("the Act"), s213, provides:
"213 (1) If the Board is required to hold a hearing under this Act it shall fix a date, time and place for the hearing and shall inform the Commissioner and other interested parties to the hearing accordingly.
(2) At a hearing the Board –
(a)shall decide the procedure to be followed; and
(b)shall give the applicant or appellant, as the case may be, the opportunity to be heard; and
(c)may receive evidence orally or in writing; and
(d)may take evidence on oath or affirmation; and
(e)is not bound by rules of evidence but may inform itself in such manner as it thinks most appropriate; and
(f)shall observe the rules of natural justice in so far as they are applicable.
(3) For the purpose of subsection (2)(d) the person presiding at the hearing may administer an oath or affirmation.
(4) A hearing may, at the Board's discretion, be conducted in public or in private.
(5) The Board may, by notice signed by the presiding member, require a person –
(a) to attend a hearing to give evidence; and
(b)to produce at a hearing a document or anything else specified in the notice.
(6) A person is not entitled to be represented at a hearing unless the Board is satisfied that injustice could otherwise result."
The hearing commenced on 19 October 1999 with Mr Travers introducing the prosecutors' case. The proposition that he advanced to the Board was contained in a series of dot points upon which he expanded. They were as follows:
"• Newly developed bar concept made of modern materials, in line with the new age wine consumer.
· The concept is for 20 still wines to be available for purchase by the wine consumer at any given time, these 20 wines will be changed each fortnight to give consumers the greatest opportunity to sample and purchase a great range of wines.
· 4 ‑ 6 sparkling wines will also be available along with 20 premium and imported beer and spirits.
· We will not be serving bulk beer in any of these bars.
· The products being selected for consumption on a fortnightly basis will be chosen from our extensive range, special attention will be paid to medal and trophy winners along with new products.
· A minimum of 2 Tasmanian wines will be available each fortnight, this will assist the Tasmanian wine industry with the increased exposure of these products
· Increased knowledge and confidence will be gained from this opportunity to consume a glass of wine, in the company of experianced [sic] staff, this will result in higher priced items being purchased, not only at our stores but a competitors outlets and Resturuants [sic]."
He followed up the proposition with a series of submissions as to why a general licence was needed in each case, advancing the claim that bottled wine and premium beer consumption was increasing, and that customers were looking for the opportunity to sample and consume wines at the prosecutors' premises as they had a much better range. He referred to a consumer research project in which he claimed that 81 per cent of those interviewed had agreed with the prospect of being able to purchase wine by the glass. He also asserted a series of facts about the availability of liquor in the three areas under consideration. In respect of Glenorchy, he pointed out that in 1980 there were 11 general licences and this had not increased by 1999. The population of the Glenorchy area had increased by 5 per cent over the previous census. He claimed a survey undertaken on 5 September 1999 had revealed that:
- the Club Hotel had Stanley casks and bottled wine was only available by the full bottle;
-the Granada Tavern had Queen Adelaide wine, Rosemount Chardonnay and Stanley cask wine;
-the Claremont Hotel had Queen Adelaide red and Chardonnay, Butterfly Ridge Spatlese, Di Bortoli Colombard Chardonnay, Coolabah and Stanley cask wine;
- the Hilltop Tavern had Stanley red Lambrussco only; and
- the York Hotel had San Bernadino cask wine only and no red.
In summary, he claimed 2 out of 5 offered bottled wine, but of poor quality; 18 wines were available, but that would be less than the prosecutors would have; 33 per cent of the above was bottled and all driven by volume, with no variety available; one outlet did not offer any red wine; and no outlet had sparkling wine. Similar observations were made about various named hotels in the Clarence and Hobart areas. He outlined a scheme for offering wine samples by the glass with a variety of cheeses and antipasto. He claimed the prosecutors' survey of opposition outlets showed that the need their customers had was nowhere near being fulfilled at present. He submitted a number of plans of proposed modifications to the outlets in question and evidence of market survey material, and accompanied his presentation with a series of slides, some of which contained factual material. At the conclusion of his submissions and evidence, both Ms Harris and Mr Bleasel were permitted by the Commission to question him. It appears that none of the evidence taken by the Board was taken on oath or affirmation. According to his affidavit in support of the application for a general order, Mr Travers claimed that the prosecutors intended to call some 30 members of the general public to give evidence to the effect that they desired to use the applicant's proposed facility for purchasing and consuming wine at the three outlets. Apparently the manager of each outlet had been asked to produce some 10 customers who would support the application being made by the prosecutors. Mr Travers had not taken a proof of evidence as to what each of these persons would say and Mr Watson had been given the responsibility of marshalling those people who in fact attended at the request of the three managers. In the afternoon of 19 October, he began to call some of these witnesses and by late in the afternoon had called some 15 of them. According to Mr Travers, the chairman, Mr Kimber, said words to the effect "I suppose they are all going to say the same thing". When he replied, "I imagine so. We have not worded them up", the chairman then said words to the effect "Well, there is no need to hear from them then". The matter was then adjourned until the following day and Mr Travers decided that he would not call the balance of the witnesses during the hearing as he believed it was unnecessary to do so having regard to the chairman's comments. The following day, the prosecutors continued to present their case which was concluded at about 11am. The chairman then asked Mr Bleasel to present his case. Mr Bleasel did not put anything to the Board in writing, but addressed the Board. According to Mr Travers' affidavit, at the conclusion of his submissions, Mr Bleasel was asked questions. Mr Travers said he could not recall by whom, but acknowledged that he may have asked some of them. According to Mr Travers' affidavit, the AHA then presented its case, but prior to its doing so, he claimed that the chairman informed him that he would not be entitled to ask any questions of the AHA as they were objectors and not direct parties to the application. The AHA then presented a documentary submission to which it appears that Ms Harris spoke. Mr Travers claimed that at the conclusion of the AHA case, the chairman asked him whether he wished to make a final submission. He asked for some time to prepare it, having regard to the fact that he had only recently been given a copy of the AHA's submissions. The Board granted him only a five minute adjournment, after which he made a brief submission and then asked for an opportunity to put in a further written submission once the AHA had provided the full results of survey material to which it had referred in its submission. The chairman indicated that the Board would allow him to put in a written submission, but that he would also need to send a copy to the AHA and to Mr Bleasel and that they would have an opportunity to respond. He received the survey material from the AHA in early November 1999 and on 4 November 1999 he sent in a further written submission. In it he observed that the AHA had submitted that existing premises provided higher standards of service than what the prosecutors were proposing and that the services were available in most of the existing general licensed premises. However, he claimed that no evidence was provided to back up this statement and that he had been unable to question anyone as to the actual services provided.
The prosecutors' first complaint is that they were not given a reasonable opportunity to ascertain before the hearing the nature of the case to be advanced against them by the objectors. In substance, this complaint was confined to the material advanced by the AHA. That material was a 100 page document, the first 30 pages of which outlined the AHA's submissions. The next 50 pages consisted of copies of a series of rulings of the Board in respect of other applications and the last 20 pages contained factual assertions concerning what was offered at 13 hotels in the three areas, a letter from the Deputy Commissioner of Police concerning alcohol-related incidents on the AFL grand final day 1999 and a map of each area with existing licensed premises highlighted. The material relating to the Black Buffalo Hotel in North Hobart is typical of the information provided. It is as follows:
"Black Buffalo Hotel
14 Federal Street North Hobart
Licensee: Graeme Sice.The Black Buffalo Hotel is situated in the outer city suburb of North Hobart consisting of heavy residential and light industry establishments
The hotel provides a wide range of facilities seven days a week consisting of:
Public Bar (including TAB Sky Channel and Keno Facilities)
Lounge Bar/casual dining
Cocktail bar/casual dining
Function room
Self contained accommodationDrive in Bottleshop.
The hotel has a very busy bar and food trade including weekly functions such as wedding held in Leticia's function room.
The hotel accommodation does well and is full on most weekends and runs at an 80% occupancy.
The bottleshop in particular, is very busy, very well marketed and provides the public with very competitive prices for beers wine and spirits.It can be categorised as a medium to large outer city hotel with ample on site parking for the patrons"
The Deputy Police Commissioner's letter was attached to support a contention in the AHA's submission to the effect that alcohol consumption, other than on licensed premises, was causing increased concern to the community. The contention was:
"Indicative of these concerns are the figures from the AFL/NRL Grand Final Weekend problem experienced by the Tasmanian Police. It was well highlighted in the media that there were significant problems, much higher than expected, with alcohol singled out as a major culprit in exacerbating those problems. At the request of the AHA, the Tasmanian Police has provided figures of the alcohol related figures from the weekend in question which highlights the growing problems relating directly to alcohol consumed off premise. From 12.00 midday 25 September 1999 and 4.00am on 26 September 1999, 528 incidents were recorded for the State. Of those incidents, a total of 108 were alcohol related and not associated with licensed premises. A total of 21 incidents were associated with licensed premises. Correspondence from Deputy Commissioner Jack Johnston is attached."
The AHA submission was in four parts. It purported to deal with the history of liquor licensing legislation in Tasmania, precedents set by the Board, whether or not the perceived need was already met and miscellaneous matters going to the issue of orderly development, taking into account community objections and social issues. Apart from its reference to some reports to government in the last 25 years concerning the removal of nine litre limits which had never been implemented, the prosecutors could advance no reason why the presentation of the historical survey without prior warning to them in any way denied them procedural fairness or prejudiced them. The same can be said for the reference to the Board's previous decisions, 14 of the first 30 pages being devoted to summaries or submissions as to the effect of those decisions. In the third part of the submission, the AHA made reference to the material about the 13 hotels set out at the end of the submission and the claim was made that the services to be provided by the prosecutor could not be compared to the range of services provided by existing licensed premises. Some facts in support of the contention were advanced, eg:
"… most of the existing general licenses may not have the same extensive range of premium wines as the applicant, it should not infer that the existing licenses do not provide premium wine. Good examples include the Eaglehawk, Brooker Inn, Gasworks, Elwick Hotel, Beltana Hotel and Foreshore Tavern.
…
The applicant has only indicated that they would have up to 20 wines for consumption on premise. Interestingly, at the tasting section at the Claremont Cheaper Liquor there were only four wines available on a Saturday, and in the 10 minutes spent at the store, not one customer tried the wine nor did the staff offer the customer the opportunity to taste the wine on offer."
Finally, a general claim was made that sales for consumption other than at hotels led to socially undesirable consequences such as the incidents referred to by the Deputy Commissioner of Police. As I have already said, the prosecutors were given the opportunity to make submissions in answer to the AHA's documentary submission which, although consisting of a large number of pages, contained very little (if any) factual material likely to take the prosecutors by surprise. I shall return to this ground when I deal with ground 4 as, it seems to me, they raise similar considerations.
The second ground of complaint is that the Board did not permit the prosecutors by their representative Mr Travers to cross-examine the objectors who gave evidence against them. Although Mr Travers' affidavit of 14 April 2000 acknowledged that he may have asked Mr Bleasel some questions after the latter concluded his submissions, he claimed when cross-examined on his affidavit at the hearing before me that he had been denied the opportunity to cross-examine Mr Bleasel. I found his evidence on this point quite unconvincing, as the following excerpt from his cross-examination shows:
"Now the hearing progressed ‑ this is on the second day now ‑ and Mr Bleasel gave very detailed evidence? … Yes, he did.
And you were able to ask him questions? … I don't believe I was able to ask him questions the next day. The only time that I asked him questions, in my recollection, was on the previous day when he was cross examining my witnesses.
Sorry. What you're saying is that ‑ are you alleging that the Board precluded you from asking Mr Bleasel questions after he'd given evidence? … To the best of my recollection, yes.
That's not part of your affidavit? … I'm not sure.
You simply don't recall asking Mr Bleasel any questions? … Not on the second day when he gave evidence.
But that's as far as it goes. You weren't precluded from asking him questions? … That I can't answer. I'm sorry, I can't remember.
HIS HONOUR: I didn't hear your answer.
WITNESS: I can't remember that.
HIS HONOUR: Well you just asserted a few moments ago that you were precluded from asking him questions. What's your position?
WITNESS: From the best of my recollection, I was precluded from asking Mr Bleasel questions.
HIS HONOUR: You were actually stopped, were you, told you couldn't ask any questions?
WITNESS: To the best of my recollection, yes.
HIS HONOUR: Who stopped you?
WITNESS: The Board.
HIS HONOUR: Well, Mr Kimber as the chairman of the Board.
WITNESS: Yes.
HIS HONOUR: Well what did he say to you?
WITNESS: I ‑ it was a long time ago ‑ to the best of my recollection, it was along the lines of 'you are not able to ask the objectors questions'.
HIS HONOUR: Had any of the people who had given evidence the previous day, been asked questions by Mr Bleasel or any other objector?
WITNESS: Yes, they had been.
HIS HONOUR: Well when you were stopped, the next day, didn't you protest about that and say 'this is unfair'?
WITNESS: I can't recall exactly what went on, but I know that we weren't very happy about it.
HIS HONOUR: Yes.
MR GAGGIN: (Resuming) It's the case though, isn't it, I would suggest to you, Mr Travers, that you did indeed ask Mr Bleasel substantial questions after he'd given his submission? … I can only recall asking Mr Bleasel questions on the previous day
But your memory of all of this is fairly vague ‑ isn't it? … Yes, it is.
And indeed, it may well be the case that you simply can't recall exactly what happened? … I can't recall exactly what happened. I am a hundred per cent positive that I asked him questions the day before when he was cross examining my witnesses. But I cannot recall asking him any questions on the actual day he gave evidence.
You can't recall, but it's possible that you might have? … Possible."
Mr Phillip Kimber, the Chairman of the Board, filed an affidavit in these proceedings in which he deposed that he recalled Mr Travers cross-examining Mr Bleasel. In cross-examination before me, Mr Kimber acknowledged that he had no note of the fact or effect of the cross-examination of Mr Bleasel by Mr Travers, but the notes are a far from complete record of the proceedings. He also acknowledged that his recollection was partly aided by Mr Travers' own concession in his affidavit that he thought he had questioned Mr Bleasel. I find that Mr Travers did do so and was not precluded by the chairman from doing so as ground 2 claims.
The main complaint under this ground, however, was that Mr Travers was not permitted to cross-examine Ms Harris for the AHA. Mr Kimber, in his affidavit, deposed as follows:
"20(a) When Ms Harris finished her verbal submission, I asked Mr Travers whether he wished to cross-examine or ask questions of Ms Harris.
(b) He started to speak, seemingly to reiterate the case of the Applicant.
(c) As he was not asking Ms Harris a question I interrupted and asked him whether he wanted to ask Ms Harris any questions. I said 'This is the time to ask her questions to test her evidence'.
(d) I said that if he did not want to ask her any questions then he could make a final submission.
(e) He then asked for time to prepare a final submission.
(f) I suggested a 5 minute adjournment, which he accepted without comment.
(g) Mr Travers did not ask for any longer time. Had he done so I would have given it.
(h) Mr Travers then resumed and made his submission. He did not ask Ms Harris any questions."
He was cross-examined at some length about these assertions but maintained his position and I accept the substance of them. Possibly Mr Travers misunderstood the difference between submissions on the one hand which were not to be the subject of cross-examination and the few factual assertions articulated by Ms Harris. This ground is not made out.
By the third ground, the prosecutors claim that they were not given the opportunity to call about half the witnesses they wished to call and who they understood generally supported the proposal which Mr Travers had outlined in opening his case. I have already referred to the exchange between Mr Travers and the chairman on the late afternoon of the first day of the hearing. Mr Kimber, in his affidavit after referring to the calling of nine such witnesses, the last of them having been heard at about 5pm, deposed:
"10 (a) At that time I asked Mr Travers whether he wished to call any more witnesses. He said that he had others to call.
(b) I asked Mr Travers as to what those additional witnesses would be directing their evidence.
(c) He said that they would be providing evidence similar to that of previous witnesses.
(d) the matter was then adjourned.
11(a) I have no recollection of saying the words set out in Mr Travers's affidavit para 10: 'Well, there is no need to hear from them then'.
(b) I may have said words to the effect: 'Do you anticipate they will add anything to the evidence already given?'
(c) I recall Mr Travers saying something to the effect that he had not 'worded them up', but I left it entirely to him as to whether he called them the next day. I made no direction to him not to call the additional witnesses.
(d) I recall expecting to hear these witnesses at the start of the second day.
12(a) Each of the witnesses called by Mr Travers gave evidence directed to their personal desire to have the benefit of the licensed premises, in respect of which the licence was sought.
(b) By asking Mr Travers whether the further witnesses were to add anything, I sought to find out whether the witnesses would be giving evidence different in kind to that which had been given or would simply be reiterating or supporting that evidence."
Ms Harris, in her affidavit, said:
"5The Applicant called a number of witnesses at the hearing. The AHA was not provided with a list of the names of the witnesses nor witness statements prior to the hearing or at all. The evidence of the witnesses was repetitive and my recollection of the matter is that the Chairman of the Board sought clarification from the Applicant as to whether the additional witnesses added anything to the evidence which had already been given or simply repeated the same matters. The Applicant advised the chairman that they would repeat substantially the same evidence. The Chairman, to the best of my recollection, indicated either that there was no need to call the remaining witnesses or that there may not be any point in simply restating the same evidence. I do not recall a direction being given that the witnesses were not to be called."
Mr Watson supported Mr Travers' version of the exchange. I am quite satisfied that the chairman did not deny the prosecutors the opportunity to call the witnesses in question. The prosecutors had arranged for all these supporters to be in attendance that afternoon and were faced with the difficulty by late afternoon of having to arrange for those not already called to return the next day. Mr Watson, in his affidavit, acknowledged that Mr Travers had explained to the chairman that it would be difficult for the witnesses to return the following day, and continued:
"It was about that time that Mr Kimber asked whether the remaining witnesses would add anything. I can not recall Mr Kimber saying anything like words to the effect 'its up to you' or 'its entirely for you'. I understood from the exchange that Mr Kimber did not want to hear further witnesses for the applicant, unless they were likely to add something new."
Even if the version deposed to by Mr Travers is accepted, there was no procedural unfairness in an indication from the chairman that having regard to the difficulties in marshalling them the following day calling further witnesses to give repetitious evidence generally supporting the prosecutors' claim was not likely to advance their case. In any event, the prosecutors had no proofs of evidence and did not know precisely what the witnesses would say. Nothing has been put before me which would suggest that the calling of further such witnesses could have materially affected the result (cf Kuczynski (1994) 72 A Crim R 568 at 575). The decision handed down by the Board had only this to say of this body of evidence:
"The applicant called a number of witnesses who stated, in varying ways and manner, that if they were able to buy wine by the glass on the premises, they would find that a convenience, and useful. Their evidence supported the applicant's case.
…
The applicant brought evidence from people local to the area of the premises in each application. No doubt these witnesses honestly and accurately indicated that they would enjoy the ability to buy and taste a full glass of wine (not simply a free taste as one might otherwise be able to obtain) from the premises. However, the Board can not be satisfied, from these witnesses and other evidence of support in the same vein, that there is sufficient level of unsatisfied need in each vicinity which would be satisfied by the applicant's proposal - such as to make the grant of the applications appropriate."
There is no substance in this ground.
The last ground complains of a failure by the Board to give the prosecutors a reasonable opportunity to challenge or contradict material advanced against them at the hearing. Both it and ground 1 raise the issue of whether, as the Act, s213(2)(f), requires, the rules of natural justice were observed by the Board insofar as they are applicable to a hearing of this type. It is trite law that where there is an obligation to observe these rules, there is no immutable set of rules which govern the form of procedure to be adopted by authorities in all cases. In Russell v Duke of Norfolk & Ors [1949] 1 All ER 109 at 118, Tucker LJ said:
"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."
So, too, in Kioa v West (1985) 159 CLR 550 at 584 - 585, Mason J said:
"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting."
The present case was one in which the prosecutors were seeking a general licence in respect of three outlets already the subject of off-licences so as to permit an increase in the business they might transact. Their representative at the hearing tendered material in support, much of which had not previously been disclosed to other parties who might be affected by the grant of the licences sought and who had accordingly lodged objections. The AHA, which lodged an objection on behalf not only of itself but also of other licence holders in the areas in which the prosecutors' off-licences were already held, indicated in the letter of 28 January 1999 already cited the substance of the reasons for the objections and, like the prosecutors, advanced factual material in written submissions as to the availability of existing facilities to satisfy the need said by the prosecutors to be unfulfilled. At the conclusion of the hearing, the Board granted the prosecutors' request to be permitted to file supplementary material in answer to the AHA's submission, which, though lengthy in appearance because of the inclusion of copies of several previous decisions of the Board, was relatively concise in terms of formulating its reasons for opposing the applications. In all these circumstances, I am satisfied that the Board accorded the prosecutors procedural fairness in the presentation of their case and in refuting the objections raised. In my opinion, there is no basis for concluding that they were denied natural justice nor any reason why the Board's decision should be quashed. The order nisi is discharged.
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