Richardson v Smith

[2002] NSWSC 720

CITATION:	Richardson & Anor v Smith & Anor [2002] NSWSC 720
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	SC 12083/02
HEARING DATE(S):	27/09/02
JUDGMENT DATE:	27 September 2002
PARTIES :	Michael Sinclair Richardson (First Plaintiff) Michael David Ragan (Second Plaintiff) Anthony Charles Leybourne Smith (First Defendant) Licensing Court of New South Wales (Second Defendant)
JUDGMENT OF:	Whealy J at 1

LOWER COURT JURISDICTION :	Licensing Court NSW
LOWER COURT FILE NUMBER(S) :	204995/02
LOWER COURT JUDICIAL OFFICER :	D Armati, D Collins, D Kok

COUNSEL :	J. Costigan (Plaintiffs) S. Austin QC/S. Balafoutis (First Defendant) Submitting Appearance for Second Defendant
SOLICITORS:	Angela Frost (Plaintiffs) Back Schwartz Vaughan (First Defendant) IV Knight (Second Defendant)
CATCHWORDS:	Liquor Act 1982, s 36 (6) - Moratorium legislation - refused premises - extent of moratorium
LEGISLATION CITED:	Liquor Act 1982 (as amended) (NSW)
DECISION:	Order the plaintiffs' summons be dismissed. Order the plaintiffs to pay the defendants' costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

FRIDAY 27 September 2002

12083/02 – Michael Sinclair RICHARDSON & ANOR v Anthony Charles Leybourne SMITH & ANOR

JUDGMENT

1 HIS HONOUR: Mr Anthony Leybourne Smith is the business manager, licensing, for Woolworths Limited. By an application lodged in the Licensing Court of New South Wales on 18 April 2002, Mr Smith sought an order granting removal of an off-licence retail from premises situated at the corner of Bong Bong and Smith Streets, Bowral to premises described in the application as Woolworths Supermarket in the Highland Fair complex at Bowral. The licence sought to be removed, so it seems, had been in existence for many years. In more recent times it appears it had been operated by Franklins in the Franklins Fresh supermarket located close to the Oxley Mall at Bowral. It further appears Woolworths acquired the right to remove this licence as part of a broader acquisition of Franklins supermarkets and liquor stores.

2 As indicated above, the area to which Woolworths wishes to move the licence is within the Woolworths supermarket. This itself is within the Highland Fair shopping complex. Highland Fair is a comparatively large shopping complex containing a Woolworths supermarket with seventeen checkouts and having a number of small shops facing Bong Bong Street and car parking. The material before me suggests that the supermarket commenced trading in November 1997. It has apparently been quite successful.

3 The plaintiffs are hoteliers in or near the Bowral shopping centre. In that capacity they objected to the application made by Mr Smith on behalf of Woolworths.

4 On 27 June 2002 a Full Bench of the Licensing Court assembled to hear argument in relation to the objection which had been taken to the application. The ground of objection was as follows:

“That the Court has no jurisdiction to grant the application because the applicant is applying to remove an off-licence (retail) to the premises or part of the premises to which the removal of a licence was refused within the period of two years that next succeeds the refusal. The refusal was handed down by the Licensing Court of New South Wales on 5 February 2002.”

5 It is common ground that on 5 February 2002 the Full Bench of the Licensing Court had, in an extensive earlier decision, refused a series of applications. These had included an application which had been brought by Mr Smith for the grant of a new licence and alternatively for the removal of a country licence to premises which were in each case described as shop 9, corner of Banyette and Bong Bong Streets, Bowral and to be known as Woolworths Liquor.

6 In the same series of refusals the Licensing Court had refused alternate applications which had been brought on behalf of Coles Myer for a licence in the Oxley Mall at Bowral. It seems that all the applications had been heard together and that there were common objectors to both Woolworths’ and Coles’ applications. The successful objectors to those applications, included the present plaintiffs. The applications were, in essence, refused on the ground of objection provided for in s 45(2) of the Liquor Act 1982 (as amended). This is commonly referred to as the “needs” objection. The formal finding of the Court was that each of the applicants had failed to overcome the needs test, that is that each had not met the onus placed upon him by the statute to establish that the needs of the public in the neighbourhood of the premises to which each application related “cannot be met by facilities for the supply of liquor existing in and outside, the neighbourhood.”

7 The argument heard by the Licensing Court on 27 June 2002 was however confined to the narrow ground of objection taken by the plaintiffs to the present application, which I have set out at para 2 of these reasons. The matter agitated at the hearing arose in the context of the provisions of s 36(6) of the Liquor Act 1982 (as amended). The section is in the following terms:

“36(6) Where an application for the grant or removal of an off-licence to sell liquor by retail is refused upon an objection taken on the grounds specified in s 45(2) being upheld, application may not within the period of two years that next succeeds the refusal be made for the grant of such a licence relating to or the removal of such a licence to (a) the premises or any part of the premises in relation to which the grant of a licence was refused or (b) the premises or any part of the premises to which the removal of a licence was refused.”

8 Separate decisions were given by each of the three members of the Full Bench of the Licensing Court. The Chairperson, Mr David Armati, after a detailed analysis, came to the conclusion that the application was not precluded from being made by the provisions of s 36(6). Mrs Daphne Kok came to the same view and gave her own reasons. As I read those reasons, it appears to me that she essentially agreed with the ultimate reasons expressed by the Chairperson. The third Magistrate, Mr Dennis Collins, after an examination of the history of the section and its predecessor, came to the conclusion that the application was in fact prohibited by the legislation.

9 As a consequence of the majority decisions, the application was allowed to proceed. It was then adjourned until 8 July 2002. On that day the Court records indicate that the application was granted and conditions of an interim and permanent nature were endorsed on the licence. It is my assumption that the temporary conditions were predicated upon the basis that part of the supermarket would have to be reconstructed to make it suitable for the sale of liquor. As well, it would be necessary to have the licence transferred from Mr Smith’s name to that of a suitably qualified liquor store manager.

10 The summons filed on behalf of the plaintiffs was lodged on 30 July 2002. The following relief was sought:

“1 A declaration that the determination of the second defendant made on 2 July 2002 and forming part of its adjudication made on 8 July 2002 was erroneous in law.

2. An order that the determination and the adjudication based on it be quashed.
3. A declaration that the conditions imposed by the second defendant on 8 July 2002 were imposed in error (sic) at law.
4. An order that the adjudication imposing the conditions be quashed.
5. An order that the terms of the condition imposed by the second defendant on 8 July 2002 be expunged.
6. An order that the application of the first defendant be remitted to the second defendant to be dealt with according to law.
7. Costs.

8. Any further orders as may be appropriate.”

11 The grounds upon which the relief was sought is stated in these terms:

“1. The second defendant was in error in its interpretation of s 36(6) of the Liquor Act 1982 when it held that the proposed licensed premises of the first defendant, being the Woolworths supermarket situate at Banyette and Bong Bong Streets Bowral were not the premises or any part of the premises in relation to which a new grant and a removal of a licence was refused on 5 February 2002.
2. The second defendant was in error in imposing conditions upon the licence in the terms adopted by it in furtherance of its erroneous interpretation referred to in ground 1.”

12 It is agreed between the parties that the subject appeal is an appeal on a question of law pursuant to s 146 of the Liquor Act 1982 (as amended). It is further agreed that the sole question of law to be determined is the one that I have identified, namely, the proper construction of s 36(6) of the Liquor Act. The defendants have taken no point and have not argued other than that the plaintiffs are entitled to succeed if the plaintiffs establish that the majority decision of the Licensing Court was erroneous in point of law.

13 The parties have provided me with both written and oral submissions. I should acknowledge the assistance those submissions have given me. In addition I should further acknowledge that I have been much assisted by the helpful discussion contained in the separate decisions published by each of the members of the Licensing Court of New South Wales.

14 The essential submission made on behalf of the plaintiffs is contained in the written submissions by Mr Costigan and repeated before me in the oral submissions he made today. It may be summarised as follows - the plaintiffs say that the learned magistrates fell into error in construing s 36(6) by not adopting a literal or grammatical construction of the subsection but rather by importing into the section the word “licensed” before the word “premises” in circumstances where there was no requirement or justification as a matter of statutory construction so to do.

15 In the written submissions Mr Costigan argued that the Licensing Court had in effect adopted a “purposive” test and then imported into the statute a word, namely “licensed” premises; and that in so doing the scope of the legislation was artificially limited and incorrectly amended.

16 In oral submissions today Mr Costigan took me in detail to the decision of the learned Chairperson and Mrs Kok and contrasted the dissenting decision of Mr Dennis Collins.

17 In my view, however, the majority decisions of the Licensing Court were correct in reaching the conclusion they did, namely that s 36(6) did not prohibit the making of Mr Smith’s present application. I shall state my reasons briefly.

18 First, so far as the decision of the Chairperson is concerned, while it is true his Worship devoted considerable attention to a statement of a number of principles of statutory incorporation, including those which relate to the necessity in some cases to adopt a purposive construction, I am satisfied on a fair reading of his Worship’s decision that he ultimately concluded that all that was necessary in the present case was to examine the literal and grammatical meaning of the words of the subsection. At p 6 of the decision his Worship said:

“Starting therefore with the consideration of what are the ordinary or natural meaning of the word premises as it is in s 36(6). One can look really no further than a simple meaning such as that in the Concise Oxford Dictionary of house, building with grounds and appurtenances. Be that as it may, what did or what does s 36(6) focus upon. As I have said it focuses upon premises for which the removal was refused or any part of the premises for which the removal was refused. Importantly, it does not refer to licensed premises, as I have already said, but more importantly s 36(6) focuses upon the premises or part of the premises relevant to the previous application.”

19 At p 7 his Worship said:

“In my view, that provides a clear and positive meaning to the word premises or part of premises. That is it is for the whole of the premises for the sale of liquor or part of the premises for the sale of liquor and clearly ignores parts of other premises where no sales of liquor may take place.”

…

I say that the Act as a whole once an applicant goes through the preliminary process where the word premises comes into operation and goes through the s 40 application process to the state of the Court being able to issue the s 18 type of licence, it goes from premises to the specificity of licensed premises which are premises relevant to the sale of liquor.”

20 I interpolate that in this particular passage his Worship had been examining the general process by which licences are issued and the ultimate outcome where a licence is issued so far as the word “premises” is concerned. At p 9 his Worship said:

“Therefore whilst an application starts out concerned with premises the focus of the application is to be licensed premises. That is, premises that become licensed and thereby licensed premises and I have referred to ss 18 and 40 and my reasons thereby.”

21 In an important passage on the same page his Worship said:

“I emphasise again that s 36(6) does not say licensed premises but premises or part of a premises but not just that. They are premises or part of a premises relevant to a previous application and not generally. The focus in my view therefore upon premises or parts of the premises the subject of the failed grant application is the test.
…
For the factual reasons that are before us in my view the adoption of a simple purposive test cannot arise because the three ingredients I referred to that must be satisfied are not satisfied, therefore apply a straight-forward purposive test which would require the Court that because a needs test had to be investigated in respect of this building generally, the Act says that you should not embark upon it again because that is not in the public interest and does not arise for consideration.
I have interpreted s 36(6) in its own words without the need to go beyond them but considering them in the context of the Act as a whole. What then is the application of that principle which, in essence, is a focus upon that which was the subject of the previous application to the facts that are before us.”

22 His Worship then goes on to consider the facts of the matter before the Licensing Court. He records his conclusions at p 11:

“The conclusion I reach is because of the focus that in my view is not upon buildings generally or land and Certificates of Title or leases but on the first premises proposed to be licensed that therefore as I say the Court should ignore what is covered by the Certificate of Title and the lease and ignore extraneous common areas such as carparks and the like and look to see within that narrow test whether the premises proposed are the premises that were previously proposed.”

23 As I said in argument, it might, with all due deference to the learned magistrate, be a more accurate way of expressing the proposition, that the focus is upon the premises that were previously proposed and were the subject of refusal application. I put it this way because there may have been an amendment to the boundaries of the proposed premises by the time the application has been determined. I take his Worship, however, to be merely expressing the matter in a shorthand manner. It seems to me, not only having regard to that last paragraph but to all the paragraphs to which I have made reference, that it may be fairly concluded that his Worship was in fact saying there was no need to import the word “licensed” into the phrase but that what needed to be looked at were the premises sought to be licensed and which were in fact refused in order to determine the extent of the prohibition arising under s 36(6).

24 Mrs Kok’s decision is set out between pp 14 and 16. Mrs Kok said that in relation to the introductory factual matters and analysis of principles of statutory interpretation enumerated by the chairperson, she adopted his remarks. At p 16, however, she expressed her own views in relation to the ultimate question to be determined:

“In both cases in my view one must start with the specific premises proposed to be licensed for the sale of liquor or in the case of s 36(7) the premises at which the licence in fact authorised such sale.”

25 At the bottom of p 16 she said:

“The fact that it is proposed and was previously proposed that it may have some direct access with the supermarket does not, in my view, change the limitation that it was in fact the premises which were previously sought to be licensed and that only it and areas within it are precluded now by the Act from being considered.”

26 That seems to be, as I read it, the gravamen of her Worship’s decision.

27 As I have said, in my view the majority decisions of the Licensing Court were correct in reaching the conclusion that s 36(6) did not prohibit the making of Mr Smith’s present application. In particular, neither decision is guilty of the point of view ascribed to it by Mr Costigan in his submissions. The learned magistrates in fact rejected the proposition that “premises” meant “licensed premises”.

28 In my view one notes that s 36(6) focuses, in the case of a refusal of a prior grant application, on the premises or any part of the premises to which the grant of a licence was refused. Similarly, the focus in the case of a refusal of a removal application is on the premises or any part of the premises to which the removal of a licence was refused.

29 The definition of “premises” in s 4 is inclusive but, as their Worships all note, that does not solve the present problem. The phrases of s 36(6) to which I have made reference make clear, however, that the area prohibited from further application upon the occurrence of the circumstances outlined in the subsection is confined by an identification of the premises which were the subject of the prior application for grant or removal. The effect of the various sections referred to in detail in the decision of the learned chairperson confirms that in general terms the extent and confines of premises sought to be licensed in an application for grant or removal of an off licence retail are usually quite precisely delineated (see ss 18(1) 18(2)(b), 40 and 90).

30 What then were the premises which were the subject of the relevant refusals on 5 February 2002? They were described as being shop 9 corner of Banyette and Bong Bong Streets, Bowral. Their extent is shown in full on Exhibit 1. Mr Smith’s present removal application is for premises described as Woolworths Supermarket, Banyette and Bong Bong Streets, Bowral. The majority members of the Licensing Court found as a question of fact that these latter premises were so situated that Mr Smith’s application could not be described as being made for the premises or any part of the premises to which the prior grant or removal applications had been refused. The material placed before me in Exhibits 1 and 2 shows that while Mr Smith’s current application is for premises very close to the premises which were originally refused a licence, indeed separated only by an adjoining wall, it was, nevertheless, an application for premises in a different location than were those refused premises.

31 I agree with the written submissions of senior counsel for the first defendant that there is no ambiguity in relation to the relevant phrases appearing in s 36(6) so that it is unnecessary to have regard to extraneous aids to interpretation. Moreover, the whole of the relevant phrase in s 36(6) has to be interpreted and not merely the word “premises”. That is the task I understand the learned licensing magistrates to have undertaken in the course of their decisions, and correctly so.

32 Further, I agree with the first defendant’s submission that it is not necessary to consider at length the purpose and object of the Act. This is because in the view I have formed the grammatical meaning of the sub-section is quite clear. I am, however, perfectly satisfied that the grammatical meaning gives effect to the purposes of the legislation. The plain purpose of s 36(6) is to provide a two year moratorium on the making of fresh applications when there has been a recent refusal of an application pursuant to an “adverse” finding.

33 The window of opportunity for the making of a fresh application has, however, been narrowed only slightly by the 1982 legislation. It is perfectly apparent there is no prohibition affecting an applicant personally or a company on whose behalf an application is made. Further, the prohibition does not extend to the neighbourhood or locality or, for that matter, to any area surrounding the premises the subject of the refusal. It has been precisely confined to the premises or any part of the premises in relation to which the grant or removal of the licence was refused.

34 It may well be that from the point of view of the objectors the subsection achieves a quite limited prohibition and thus provides a very limited protection. But nevertheless that is its plain intent.

35 The learned magistrates referred to the earlier moratorium legislation which existed prior to the coming into operation of the 1982 legislation, namely, the provisions of s 34(2) of the Liquor Act 1912. By way of contrast the provisions of that legislation plainly achieved a far-reaching moratorium where there had been a refusal of an off-licence on the needs ground or its statutory predecessor. The New South Wales Law Reports are crammed with decisions of the Supreme Court in relation to the interpretation of the previous moratorium legislation. It provided an obviously fertile field for complex litigation. It also created great uncertainty.

36 It is against that background, one may perhaps say, that it is relatively clear s 36(6) in the 1982 legislation reflects a new statutory approach which was intended to achieve only a very moderate prohibition in the circumstances outlined in the new legislation. But whether I be right or wrong in relation to those last comments, it is, nevertheless, clear to me that the section has a plain grammatical meaning to which effect should be given.

37 In my opinion the conclusions reached by the majority decisions of the Licensing Court were correct.

38 In those circumstances, I have come to the conclusion the plaintiffs’ summons should be dismissed and I propose to make that order.

39 I order the plaintiffs’ summons be dismissed. I order the plaintiffs to pay the defendants’ costs.

**********

Last Modified: 10/28/2002