Roosters Club Inc v Northern Tavern Pty Ltd

[2003] HCATrans 312

[2003] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A199 of 2003

B e t w e e n -

ROOSTERS CLUB INC

Applicant

and

THE NORTHERN TAVERN PTY LTD

First Respondent

THE LIQUOR AND GAMBLING COMMISSION

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 3.55 PM

Copyright in the High Court of Australia

MR A.J. SULLIVAN, QC:   May it please the Court, I appear with my learned friends, MR B.F. BEAZLEY, QC and MR G.M. GRIFFIN, for the applicant.  (instructed by Griffins)

MR B.R.M. HAYES, QC:   If it please the Court, I appear with my learned friend, MR J.F. COSTELLO, for the first respondent.  (instructed by Wallmans)

MR K.W. SOETRATMA:   If it please the Court, I appear for the second respondent.  (instructed by Crown Solicitor’s Office (SA))

GUMMOW J:   We had been told that there was to be no appearance for the second respondent, but that has obviously changed.

MR SOETRATMA:  Your Honours, I was hoping very much not to appear today.  However, as a result of correspondence received this morning from the applicant, I thought it necessary to be present at the hearing of the matter in case it was necessary to assure the Court of the Commissioner’s position in respect of one aspect of the matter.

GUMMOW J:   Thank you.  Yes, Mr Sullivan.

MR SULLIVAN:   Your Honours, the central issue in this application is whether the Full Court of the Supreme Court of South Australia misapplied the Wednesbury reasonableness test in the determination of what your Honour Justice Gummow described in Eshetu as a particular type of jurisdictional fact, namely where a jurisdiction depends upon the ‑ ‑ ‑

GUMMOW J:   Why is that a special leave point?

MR SULLIVAN:   It is a special leave point for two reasons, your Honour.

GUMMOW J:   Assuming you are correct.

MR SULLIVAN:   Assuming I am correct, your Honour, yes.  First, the content and nature and rigour of the Wednesbury test has not, in our respectful submission, been determined in Australia, even by this Court.  Many statements have been made as to the principle in terms emanating from the Master of the Rolls’ judgment in Wednesbury, but as noted first of all by Sir Anthony Mason in Peko-Wallsend, there still remains a considerable diversity of approach in the actual application of the principle in Australian courts.

GUMMOW J:   You know it when you see it; it is one of those principles.

MR SULLIVAN:   Well, your Honour ‑ ‑ ‑

KIRBY J:   And not many people ever see it.

GUMMOW J:   And it is not often seen.

MR SULLIVAN:   Eshetu, your Honour, is a classic example where that was not the case.  Your Honours will recall in Eshetu Justice Whitlam went one way on that particular point and Justice Hill and others went another way.  In Eshetu also, Justice Callinan again referred to the fact of what the possible scope and application of the Wednesbury principle was and, likewise, in academic articles there has been considerable debate as to whether, for instance, it is an objective test or a subjective test.  In other words, if the decision-maker gives reasons which are themselves logically erroneous, whether the test is satisfied, even though objectively, there were grounds upon which a reasonable person could have arrived at the decision.

GUMMOW J:   It can hardly be subjective, could it?

MR SULLIVAN:   There has been some suggestions in cases ‑ ‑ ‑

GUMMOW J:   You would be finding the credit of the decision-maker in administrative review where there was not an allegation of fraud.

MR SULLIVAN:   Yes.  Your Honour, what, I think, the subjective approach is supposed to articulate is whether one is confined to looking at the reasons which the particular decision-maker had and say, are they logical, are they rational or not, or whether one can disregard that and say, even if they are wrong, nevertheless, objectively a reasonable person could come to that decision.  That is the objective point.

GUMMOW J:   What you are saying really has to be then brought down to ground by looking at this particular legislation, which is at pages 49 and 50.

MR SULLIVAN:   Absolutely, yes, your Honour.  When one brings that down to ground, in our respectful submission, the critical determination is when looks at subsection (4)(b), which appears at page 50 of the application book at lines 11 and following.  What, in our respectful submission, subsection (4) does is to bring within subsection (1) potentially matters which would otherwise fall outside it, but only does so if an opinion of the Commissioner is formed, and that is the opinion which is set out at line 13 on page 50, namely that the:

licensed premises are . . . so linked to or so integrated with the complex that they may properly be regarded as forming part of the complex.

What the Full Court of the Supreme Court did, first of all, was to say the word “so” there was not used as a matter of emphasis, but rather was to be interpreted in an expression in such a way.  We respectfully submit that was an error but, leaving that aside, what is plain, in our respectful submission, whatever be the precise content of Wednesbury unreasonableness, is that one has to, not as your Honour has just reminded my learned friend Mr Tilmouth, trespass into the forbidden field, as it has been colourfully put, of review on the merits, but rather satisfy oneself that the very high threshold or, as Justice Brennan said in Quinn’s Case, the extremely confined ambit of Wednesbury, is satisfied.  Your Honour Justice Kirby in Eshetu expressly referred to Wednesbury unreasonableness in terms of being extreme unreasonableness or something being seriously unreasonable.

KIRBY J:   Yes.  I just have a very old-fashioned and rather peculiar view that we should grow up and stop calling things Mareva injunctions and Wednesbury unreasonableness and try to find the formula that is more generic.  However, I think I am on my own on those things.

MR SULLIVAN:   Your Honour is not on your own, with great respect, in this regard, because the courts have tried to use verbal formulae in substitution for the case names ‑ ‑ ‑

KIRBY J:   It is hard to do, is it not, though; very, very unreasonable or manifestly unreasonable or horribly unreasonable, shockingly unreasonable.

MR SULLIVAN:   It has been said – some of the instances which I can remind your Honours of is that it is to act on an absurdity, consciously or unconsciously be acting perversely, so abhorrent that it cannot be classified as rational, one, your Honour ‑ ‑ ‑

KIRBY J:   Well, Sir Anthony Mason, who is a great expert in this field of law, says that that pushes it too far and that seems to be the trend of authority in the United Kingdom and it certainly was the view which was favoured by Sir Robin Cooke in New Zealand and therefore to the extent that we add elements such as absurdity or irrationality, we are really pushing ourselves off onto a bit of a side twig in Australia.

MR SULLIVAN:   Well, with great respect, your Honour, that is perhaps one of the reasons this needs to be examined, because in Eshetu the Chief Justice and Justice McHugh, with whom Justice Hayne specifically agreed, specifically referred to with approval the quote on absurdity in acting perversely in the House of Lords decision in Puhlhofer and, indeed, then went on to comment – and this is at paragraph 44 on page 627 – on the need to discern something more than just being unreasonable but, their Honours said, “something overwhelming”, taking the language of Lord Greene in Wednesbury itself.

Now, what we respectfully submit is when – and might we say right at the outset, as one would expect from such a noted public lawyer as the Chief Justice of South Australia, the correct principles are stated but, in our respectful submission, they are not applied ‑ ‑ ‑

KIRBY J:   That was the problem I had about your application.  I can really understand your client’s complaint, but when I look at the way in which both Justice Perry and the Full Court analysed it, they do appear to have expressed all the correct principles and they have just come to their own different conclusions.  Now, I might have a different view about it, but if they have applied the correct principles, then why would this Court become involved, if you concede that they applied the correct principles?

MR SULLIVAN:   Your Honour, in our respectful submission ‑ ‑ ‑

GUMMOW J:   If I can add to that, Mr Sullivan.  They were not applying Wednesbury unreasonableness, were they?  They were applying decisions of this Court going back to Hetton Bellbird, which predates Wednesbury unreasonableness.  What is said there is, you ask whether the repository of the power could have formed the opinion reasonably, with no epithets.

MR SULLIVAN:   Yes, your Honour.  That is exactly, with great respect, what Sir John Latham said in Re Connell; Hetton Bellbird.  It was picked up, of course, and applied and elaborated upon by Sir Harry Gibbs in Buck v Bavone in the Wednesbury terms, which this Court has consistently endorsed, including in Eshetu, and, indeed, in a recent case which your Honour was part of the joint judgment with the Chief Justice, in the case of Minister for Immigration and Multicultural Affairs v Jia Legeng 205 CLR.  Your Honour referred to:

The question then on judicial review is whether the decision‑maker could have attained that satisfactionally reasonably, in the sense explained in numerous authorities –

and, of course, Buck v Bavone is one of the authorities referred to, which recites it in terms of the Wednesbury principle.

GUMMOW J:   And Foley v Padley.

MR SULLIVAN:   And Foley v Padley, which also cites it in terms of the Wednesbury principle, your Honours.

GUMMOW J:   I do not think it does, but anyhow.  The point is that Chief Justice Doyle fixed himself upon Justice Brennan in Foley v Padley.

MR SULLIVAN:   He did, your Honour.

GUMMOW J:   Which does not express it in Wednesbury terms.

MR SULLIVAN:   No, but, in our respectful submission, that is the matter which needs to be, as a matter of public importance, resolved, because, of course, this question does not only have application in cases of this sort; it has applications as your Honour has noted and potentially in section 75(v) cases and, of course, under the Administrative Decisions (Judicial Review) Act.  It is a question, in our respectful submission, of importance.  To answer Justice Kirby ‑ ‑ ‑

GUMMOW J:   But on the facts of this case, did not the Full Court agree with Justice Perry ‑ ‑ ‑

MR SULLIVAN:   Yes, your Honour, they did.

GUMMOW J:   ‑ ‑ ‑ on what, on any view of it, are some factual matters, with some evidentiary component and some evaluative factors?  Why would we come to a different view?

MR SULLIVAN:   Because, your Honour, that is the very point we make.  We respectfully submit that what the court did was to evaluate things as matters of impression or value judgment and to trespass into the field, unconsciously, of the merits.  Having acknowledged, as they did, that this was a case upon which minds may easily differ, having acknowledged the case there was a difficult question, one would have thought almost, on a question of opinion, the court would be driven to a conclusion that Wednesbury unreasonableness/unreasonableness threshold tests have not been satisfied, because if the very fact that reasonable minds can differ, as stated by this Court – and your Honour, indeed, made mention of this yourself in your judgment in Eshetu – if it is a situation where reasonable minds can differ, then the very high threshold of Wednesbury or unreasonableness, as interpreted here, cannot be satisfied. 

The whole purpose is, as Sir Gerard Brennan said in Quin’s Case, not to permit the courts to trespass upon the administrative decision‑maker’s field of reviewing the merits and that ‑ ‑ ‑

GUMMOW J:   No, this was a jurisdictional fact.

MR SULLIVAN:   Indeed, your Honour, but it is a jurisdictional fact ‑ ‑ ‑

GUMMOW J:   It is not a discretion.  It is a jurisdictional fact.

MR SULLIVAN:   No, but it is a jurisdictional fact in the nature of opinion and it can only be reviewed as a jurisdictional fact in this form of an opinion if it is unreasonable in the sense we have explained, otherwise ‑ ‑ ‑

GUMMOW J:   That is right.  The Wednesbury Case is talking about discretions within jurisdiction, and the two get conflated.

MR SULLIVAN:   Yes, your Honour.  They can be conflated and that is because the language which is used for two tests is identical, with respect, the Wednesbury test – as Buck v Bavone indicates and, as the Full Court recognised that the concept of reasonableness and Wednesbury unreasonableness are used interchangeably in this area.  In our respectful submission, once you had a situation ‑ ‑ ‑

GUMMOW J:   Well, I hear what you say, but I do not agree with it.  Go on.

MR SULLIVAN:   Your Honour, once you have, in our respectful submission, acknowledgments as appeared here in the judgment of the court – if I might just take you very briefly to what their Honours said at page 57 of the application book.  At line 13, his Honour the Chief Justice said:

That being so, to my mind there can be no doubt that it raises an issue going to power and validity, even though it is an issue which involves the formation of an opinion on a matter on which minds and opinions might easily differ.

Then at page 61 at line 3 his Honour acknowledges that this decision involved “an element of impression”.  Then at page 61 at lines 42 to 44 his Honour opines that the issue was not one which was easy to decide.

All of those matters, in our respectful submission, point, and point very clearly, to the fact that the high threshold, as we say, which is required for unreasonableness, could not have been met.  What their Honours have done, in our respectful submission, is to unconsciously perhaps, because not having expressed in their judgment the rigour of the test, have substituted their own view as to the merits of the various matters, because there were considerable factors in favour of the view which the Commissioner took and which Justice Kelly, on appeal in the Licensing Court upheld.  Justice Kelly went so far as to say he could not see how any reasonable person could take a contrary view.

KIRBY J:   Yes, we understand that.  You have made some, I think, good points in your criticism of the shift that happened when it got to the Supreme Court – I understand that – but when it comes down, looked at from the point of view of this Court, it is simply a matter of different judicial minds applying well-worn principles and, therefore, to lift it into this Court, it has to be either some very serious injustice or a case involving an application that would permit us to re‑express the principles in some way, and I am just having difficulty with that suggestion.

MR SULLIVAN:   Well, in response to your Honour, first of all, there is a serious injustice here.

GUMMOW J:   Do you accept that the Full Court is aware of the correct principles and expressed them?

MR SULLIVAN:   Yes, your Honour.

GUMMOW J:   You do, I think.

MR SULLIVAN:   We do, your Honour, but what we say is that they did not apply it with the appropriate rigour – the very point, if I might say, that Sir Anthony Mason made in Peko.  If your Honours have a copy of the papers of Peko ‑ ‑ ‑

KIRBY J:   But you would be aware, Mr Sullivan, if anybody in the room is, of Sir Anthony’s recent writings on this matter.

MR SULLIVAN:   I am, your Honour.

KIRBY J:   I mean, he is really of very great assistance in matters of administrative law and he has written that we have been a bit too rigid in our application of so-called Wednesbury unreasonableness, or its Australian analogues, and that we have really put ourselves out on a bit of a branch.  Now, here we have a case where all the correct rules have been stated and the Full Court and Justice Perry have considered that this is a case of extreme unreasonableness.  Why would we get into it and reconsider it when you concede that the correct principles have been expressed?

MR SULLIVAN:   For two reasons, your Honour.  Having stated and expressed the correct principles, what both Justice Perry’s judgment and the Full Court’s judgment is devoid of is any reasoning process, setting out why these matters were unsound, why the matters of the Commission to impel were unsound or of no weight or no substance.

KIRBY J:   In the end, is it not a leap of judgment?  I mean, you can say, “We must not get into the merits, but there is an exception for extreme unreasonableness.  We think this is a case of extreme unreasonableness.”

MR SULLIVAN:   With great respect, they can say that, but one would expect, at the very least, if that was to happen, for a reasoned process to take place so that they may themselves not be accused of having given an argument or a judgment which lacks a logical base.  But the point, answering your Honour’s first point, what Sir Anthony said is not inconsistent with his more recent writings, because what he says at page 41:

In its application –

of the Wednesbury principle –

there has been considerable diversity in the readiness with which courts have found the test to be satisfied. 

That still remains the case, in our respectful submission, as this is an exemplar.

KIRBY J:  It may be inescapable in the very open-ended nature of the formula.  It is, as it were, what the common law often does.  It has an answer to the extreme case, it does not like extreme cases, and judges have devised ways to deal with extreme cases.

MR SULLIVAN:   But, in our respectful submission, your Honour, although it may be a difficult objective to achieve, it is an important and desirable objective here for the Court to give content to, or to clarify, what is required in order to reduce, or hopefully completely erode, that diversity which Sir Anthony talked about and which was touched upon again, as we say, in Eshetu by a number of members of the Court.  If it please your Honours, they are our submissions.

GUMMOW J:   We do not need to call upon counsel for any of the respondents.

In its written and oral argument the applicant has made some effective points of criticism of the approaches taken by the judges of the Supreme Court of South Australia to the application of the principles of the so‑called Wednesbury unreasonableness to the legislation and to the facts of the case:  see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The Wednesbury principle, as it has been accepted in Australian law and adapted and explained, for example, in the judgment of Justice Brennan in Foley v Padley (1984) 154 CLR 349, to which the Full Court referred, is undoubtedly an important one deserving consideration in an appropriate case.

The last word on the subject certainly was not written in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. However, here it is properly accepted by the applicant that the Full Court expressed the correct principles. The Full Court agreed with the decision of Justice Perry at first instance. It is here that a real difficulty arises. We do not see reasonable prospects of success were special leave to be granted to the applicant, nor is that course necessary here to elucidate the applicable principles.

In the end the case was one of the application of established principle to the particular South Australian legislation and the circumstances of the case.  Accordingly, special leave is refused and refused with costs.

AT 4.17 PM THE MATTER WAS CONCLUDED