Roxburgh Holdings Pty Ltd v Pierce

[1988] HCATrans 29

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A43 of 1987

B e t w e e n -

ROXBURGH HOLDINGS PTY LTD

Applicant

and

JAMES JOHN CARLEY PIERCE, REX
ERNEST EPHRAIM RYLES, GIOVANNI

LEO VINCENZI, HER.VJ.AN LANTZSCH

and THE LIQUOR LICENSING

COMMISSIONER

Respondents

Application for special leave to

appeal

Roxburgh

WILSON J

DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 19 FEBRUARY 1988, AT 10.35 AM

Copyright in the High Court of Australia

AlT6/l/AC 1 19/2/88

MR J.R. MANSFIELD± QC:  May it please the Court, I appear

with my earned friend, MR D. SMITH, for the

applicant. (instructed by Johnsons)

MR B.R.M. HAYES, ~C:  May it please the Court, I appear

with my earned friend, MR J.L. FIRTH, for all

of the respondents, other than the Liquor Licensing

Connnissioner. (instructed by Kelly & Co.)

WILSON J: Yes, Mr Hayes. The Registrar has been advised

by the Crown Solicitor for South Australia, who

acts on behalf of the fifth respondent, the

Liquor Licensing Connnissioner, that no representations

will be made on his behalf at the hearing of this

application.

Mr Mansfield.

MR MANSFIELD: If the Court pleases, this application for

special leave to appeal is proposed to be confined
to grounds 1 and 2 with respect to the grounds

which are grounds 1 and 2 in the draft notice of

appeal at pages 72 and 73 of the book. We do not

propose to seek special leave in respect of ground 3

simply because it is unnecessary, that issue not,

in fact, having been decided by the majority against

our client.

In the course of the submissions I will be

referring to the Liquor - - -

WILSON J:  So ground 3 of the draft notice of appeal comes

out?

MR :MANSFIELD:  Yes, Your Honour.

WILSON J: Yes, thank you.

MR MANSFIELD:  If the Court pleases, in the course of

submissions I will be proposing to refer to the

LIQUOR LICENSING ACT 1985.	We have clean copies of
that Act and I hand them up to the Court, if I may.

WILSON J:	Thank you.
MR MANSFIELD:	If the Court pleases, the applicant applied to the Licensing Court for a hotel licence under
section 26 of the LIQUOR LICENSING ACT in respect
of what, very briefly, could be described as a
high quality tavern, cocktail bar, international-style bar facility and with a specific intent of not providing for sales of packaged liquor off the premises.
It is apparent from the Act and it was remarked upon by the Licensing Court judge that the section 26
licence was the only suitable form of licence for
that application.
AlT6/2/AC	2
Roxburgh

The licence was granted, the Full Court on

the appeal allowed the appeal and dismissed the

application by a majority of two to one. The

important issue which arose on the appeal and

which, in our respectful submission, is an important

issue relating to the Act generally can, perhaps,

best be identified by drawing the Court's

attention to the reasons of His Honour Justice Johnston

at page 41 of the book because it was on this

point that the majority comprising Justice Jacobs

and Justice Johnston allowed the appeal and dismissed

the application. About the middle of the page - page 41 -

the Court will see it said:

The conditions to be attached to the

licence, if and when issued -

I should interpose there, it was a grant in the form

a judicial promise in respect of premises to be

constructed -

vividly shows the problems and the issues

thrown up by this important appeal. I set

them out.	The licence will be granted upon
conditions:

"(1) Prohibiting the sale of liquor for

consumption off the premises."

And at the top of page 42 His Honour said:

in my mind, the Licensing Court certainly

has no power to issue an hotel licence subject

to the first condition.

The source of power upon which it was argued

before the Court, both at first instance and on

appeal, to impose that condition is, in our respectful

submission, contained in section 50 of the Act - a
section which is significantly different from the

provisions of the earlier licensing legislation

in South Australia - and in particular section 50(4)

and in this context (c):

50(4) Notwithstanding any other provision of

this Act, a condition may be imposed under

this section -

and the Court will see (a) limits the kinds of

liquor; (b) limits the hours and (c) says:

otherwise limiting the authority conferred

by a licence.

AlT6/3/AC	3
Roxburgh

And we draw to the Court's attention, particularly,

the use of the words "the authority" because the

critical issue, and it appears from the judgments, was whether that particular power expressed in the way in which it did enabled this licence to be

granted as a hotel licence as that exists under

the Act with the condition prohibiting the supply

of off-premise sales.

The reason that we contend that this is a

matter of more general importance than this

particular application is, in our respectful submission,

that section 50(4) is a very wide - or obviously

intended to be a very wide power and, in our

respectful submission, contemplates the court

tailoring licences to fit the needs of the public

which the court - that is the Licensing Court --

finds to exist.

In the first place we put to the Court that this

is the first appeal in which our Full Court, or this

Court, has been asked to consider the extent of the

power that section 50 creates under the 1985 Act.

Secondly, the use of the word "authority" in. subsection (4)(c) is very significant because the

structure of the Act, if I may take the Court in

to create a number of licences, different categories
of licences - or different classes of licences

general terms to Part III starting at page 12, is licences the introductory words are the same and

section 26 may be used as a convenient example.

Subject to this section:

a hotel licence authorizes the licensee - and then provides a particular topic or topics of

authorization. If one goes through the other

licences which appear variously at sections 28, 30,

32, 34, 37, 38, 41, 43 and 45, each of the sections

is introduced in a way that says that "subject to"

either the section or a subsection that particular	form of licence authorizes the licensee to do
certain things.	So that when one considers the

impact of a decision on the extent of section 50(4)(c)

and what authority may be limited by the court it

does apply, in our respectful submission, generally
to all of the categories or classes of licences

which the Act creates.

DAWSON J: Is there any of those conditions in 26(l)(a) which

are not, in effect, negatived by the conditions which

are proposed?

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Roxburgh
MR MANSFIELD:	Which are not negatived - yes, Your Honour,

the significant thing is that the condition

proposed permits the sale, if I can leave out the

words "or off" the end of 26(l)(a) it effectively
leaves the rest so that the licence authority
subject to the condition would be to sell liquor
on the licensed premises for consumption on the

licensed premises.

WILSON J:  I do not think you have appreciated Justice Dawson's

quesrion. The conditions that were imposed override

(i), (ii), (iii) and (iv) of paragraph 26(1) (a) -

and (v).

DAWSON J: And I think (b) to (f) almost, or at least

potentially do.

MR MANSFIELD: Well, they would alter that - yes, that is so.

WILSON J: Because there is no suggestion that the licensee

under this licence would trade between these hours.

MR MANSFIELD:  No. There were particular hours that were

given in evidence - they were the subject of evidence

but the power to alter the hours is something which

is specifically provided for in section 50(4)(a).

WILSON J: Yes.

DAWSON J: Yes, but I had in mind - -

MR MANSFIELD: 50(4)(b), I am sorry.

DAWSON J:  I really meant not only paragraph (a) but (b), (c),

(d), (e) and (f) as well. In other words what you are left is nothing that resembles a hotel licence.

MR MANSFIELD: Well, with respect, Your Honour, the critical -

no, we would put to Your Honour that the licence,

subject to the conditions, still permits part of the

things which 26(1)(a) contemplate, that is the

consumption on premises. It still permits 26(1)(e)

and 26(1)(f) and the evidence was that in the longer

term it would contemplate the sort of things which

26(1)(b) contemplated but that is subject to an extra

application. There was certainly no component of

a lodger, so 26(1)(c) and 26(1)(d) do not exist and

it did qualify the hours in a different way to the

provisions of 26(1)(a).

WILSON J:  It was rather odd that there should be a condition

that the person who holds a hotel licence must not

be allowed to describe the premises as a hotel.

A1T6/5/AC	5
Roxburgh
MR MANSFIELD:	Yes, that was part of the proposal and it

was imposed as a condition.

WILSON J: Yes.

MR MANSFIELD: But, I suppose one does not know the vagaries

of marketing advice and the market that you are
aiming at.

WILSON J:  But it does suggest that·the court was tailoring

the conditions to create a new kind of licence

not contemplated by the Act.

MR MANSFIELD:  If Your Honour pleases, that, I suppose, pithily is

the question which the Full Court addressed and our

argument about that in the Full Court, and it was the

argument which Justice Millhouse accepted, is that

there is not a kind of licence created under the Act except to the extent that sections 26 and 27 defines

a series of rights and liabilities to do certain

things and that section 50(4)(c) on its express words, or section 50(4) generally, empowers the court to modify or to limit those rights and

liabilities - probably not the liabilities but

certainly the rights under section 50(4)(c).

WILSON J: There must be some conclusion to be drawn from the

legislature's division of licences into a number of

categories.

MR MANSFIELD:  Yes.

WILSON J: If what you say was the proper construction of

the Ac~ one would think that it was sufficient

similarly to subject the authority to sell liquor

to whatever conditions the Licensing Court thought
fit to impose. So, you are getting very close to a
general facility licence which I understand is a new
licence, in any event, indicating the broadening of

the statute.

MR MANSFIELD:  Yes, that is so, Your Honour. The difficulty

with the general facility licence in relation to

this application is section 44(2) and the applicant,

in a sense, was faced with that subsection and

satisfied the Licensing Court and at least

Justice Millhouse that the concept of the hotel licence,

under sections 26 and following,would be reasonably

adequate for the purposes of the licence provided

section 50(4)(c) empowered, as we argue that it does

and we say is the important issue, the tailoring or
the restriction of the authority; in effect, by

saying where section 26(l)(a) authorizes the sale of liquor on or off the premises, that authority, under section 50(4)(c) may be limited by confining the

authority to selling liquor on the premises, and that

is effectively what the condition was.

AlT6/6/PLC	6	19/2/88
Roxburgh

WILSON J: Is there anything that would prevent your client

from coming to the Licensing Court on an application
for a general facility licence in the light of the

decision of the Full Court? It may not be a fair question.

MR MANSFIELD:  There are some difficulties confronting it in

terms of proof that makes it harder to obtain that

licence, if the Court pleases.

WILSON J: Yes. Well, do not feel obliged to go into it.

MR MANSFIELD: But I should be frank with the Court: one

option that our client has is to say, "Well, now, the

Full Court by a majority has said that section 26

isn't appropriate. We'll now try and get a general
facility licence" but the matters that one has to prove

for that are rather harder.

WILSON J:  But at least the first condition would seem to be

satisfied; that at least he cannot be met with the

assertion that he could get a hotel licence.

MR MANSFIELD: That is so, Your Honour.

DAWSON J:  I do not want to be argumentative but I cannot see

that any of the paragraphs in section 26(a) would apply.

If you look at (f), that was one you suggested, you then
come to subsection (3) which would mean that that

was inapplicable and if you look at (e), and then you

go to section 27(l)(c), having regard to the conditions,

that would be inapplicable too.

MR MANSFIELD:  Yes. There is certainly no accommodation.

In fact, the - - -

DAWSON J:  So, what you are left with is a licence which has

none of the characteristics which are set out in the

Act as being the characteristics for a hotel licence.

MR MANSFIELD: Well, except the "consumption on the premises" which is, really - consumption on the premises without a meal, except to lodgers, can only be provided under

this form of licence.

DAWSON J: Well, the only similarity is that liquor is consumed

on the premises.

MR MANSFIELD:  On the premises, yes. We respectfully contend

that in terms of an important issue here section 50(4)(c)

has somehow been limited by the majority of the Full

Court by reference - if I might use the words of

Justice Johnston in His Honour's reasons -"to some

fundamental character in a hotel licence" which,
presumably can be applied generally, that there must be

some fundamental character in the authority that each

licence grants,that there is, in respect of each licence,
some other elements of the authority which are not fundamental

which may be limited under section 50(4)(c), but it is

AlT6/7/PLC	7	19/2/88
Roxburgh

difficult then to know how one defines it. One might

go back to thinking of the fundamental breach of

contract and the problems that that concept generated.

So that it is our submission that it is important

both for the members of the public who are applicants or for the Court itself to be able to know the extent to which the Licensing Court is empowered under

section 50(4)(c) to limit the authorities that a
particular licence purports to authorize under its
section. Implicit in that proposition, in our

respectful submission and in our argument, is that

there is no element within the Act of a fundamental

authority or a fundamental character of a licence which

is part of the authority as distinct from the other

authorities.

DAWSON J:  Come back to it: the consumption of liquor on

the premises is not a characteristic of a hotel

licence, is it? It is characteristic of all licences. It is certainly characteristic of a restaurant licence

as well.

MR MANSFIELD:  Yes, with restrictions, because one then must have

a bona fide diner.

DAWSON J:  But all of the restrictions that are listed in

section 26 are negatived or potentially negatived by

the conditions.

MR MANSFIELD:  Except the consumption on the premises of liquor

without a meal.

DAWSON J:  But that is not a characteristic of a. hotel licence.

MR MANSFIELD: Well, with respect, Your Honour, we would say

that that is - - -

DAWSON J: Or, alternatively, it is just as much a characteristic

of a restaurant licence as it is of a hotel licence.

MR MANSFIELD:  No, Your Honour, the difference is that a person

does not have to go on to a hotel and have a meal to be
able to drink.	Now, a hotel licence, I suppose, if one

wants to use it in a conventional sense, enables two

things, and a combination of two things which

restaurants cannot do in practical terms: one, you can

go on to the premise and have a drink and have nothing

else and, two, is that you can take away liquor. Now,

there are licences which permit you to take away liquor:
the retail storekeeper's licence and the wholesale
storekeeper's licence and, to a degree, other licences
under the Act, but we say the critical thing that is

preserved and the reason why the hotel licence was the

only appropriate licence was because there was a demand,

and His Honour found a significant demand at first
instance, to go on to the premises like this and to get

a drink without having a meal, and that is the critical

component, I suppose, of section 26(l)(a) which we say

AlT6/8/PLC	8	19/2/88
Roxburgh

still exists and was really the component which

His Honour granted the licence in respect of.

Now, the effect of the Full Court's decision is

to say that if you find a need like that you cannot

grant a hotel licence because you cannot limit the

authority under section 26(l)(a) to on-premise

consumption as opposed to off-premise consumption. In

our respectful submission, this Court ought to consider

as a matter of general importance and to give the guidance

which the new Act requires, particularly in the light

of the conflicting views of the majority in our Full

Court, as to whether there is some components of the

authority under section 26 or, as a matter of principle,

some components of the authorities in respect of each of the classes of licence which section 50(4)(c) does not enable to be limited.

In our respectful submission, that topic arises

very appropriately here. One can see,in a brief look

at the way in which the various judges comprising the

Full Court considered the matter, the way in which

Their Honours differently approached it. If I may take the Court to Justice Millhouse's decision first.

His Honour was the dissenting judge and His Honour

accepted the sort of argument which was accepted at
first instance. His Honour, at the bottom of page 8,

poses the rhetorical question, "What is a hotel?"

WILSON J: Sorry, what page is that in the book?

MR MANSFIELD:	At page 28 of the book, Your Honour.
WILSON J:	Thank you.
MR MANSFIELD:	His Honour, about seven lines from the bottom,

poses rhetorically the question:

What is a hotel? That is the question:

whether the activities which the proprietor

of The Abbey wants to undertake may

appropriately be allowed under a hotel licence.

DAWSON J:  But you do not have to ask the question as if

there was some platonic form of a hotel, do you? What

is a hotel, for these purposes, is answered by looking

at the Act.

MR MANSFIELD:  Indeed so, Your Honour, and - - -

DAWSON J: And by looking at the conditions which are to be

attached to a hotel licence. Admittedly, they may be
varied but at some point when you eliminate them one by

one you have something which is not a hotel within the meaning of the Act. All I am saying is you do not pose

the question in the abstract.

AlT6/9/PLC	9	19/2/88
Roxburgh

MR MANSFIELD:  I accept Your Honour's comment about that, and

His Honour Justice Millhouse then addressed the matter

in the way in which Your Honour indicates was appropriate

at page 36 because His Honour addresses the question by acknowledging the argument of the Crown Solicitor

about there being an essential characteristic of the

hotel, that it should provide liquor for consumption

off the premises. And His Honour's answer to that

argument appears in the last third of page 36 to the

top of page 37. We do not do more than refer to that

and say that, in our respectful submission, that was the
view of the Licensing Court judge and of His Honour

Justice Millhouse and is something which this Court

ought to decide is or is not ultimately the correct

view.

DAWSON J: Well, I do not think His Honour does do what I was

suggesting. He does not go to section 26 to find the

characteristics of a hotel; rather he goes to the power

to vary.

MR MANSFIELD:  Yes. Perhaps I should draw to Your Honour's

attention the passage in the middle of page 35 which -

the middle paragraph on that page where we would say

is what His Honour defined as the hotel:

is nothing more than a collection of the

rights and obligations set out in ss. 26

and 27: any premises satisfying those

sections and licensed as a hotel is a

hotel under the Act.

DAWSON J:	But he does not carry that through, does he?
MR MANSFIELD:	His Honour then says is there:

an essential characteristic of a hotel -

which makes more than one of those characteristics

necessary for there to be a hotel in the face of

section 50, because the majority view was there is

some fundamental characteristic of a hotel as the

legislature has proposed it in the Act, namely, that

there has to be off-premise sales and if there are

no off-premise sales then section 50(4) does not enable

there to be a hotel excused from that obligation.

(Continued on page 11)

AlT6/10/PLC	10	19/2/88
Roxburgh

MR MANSFIELD (continuing): So, His Honour, in our respectful

submission, does start from the correct premise

at page 35. He addresses the proposition

that there is an essential characteristic of an

hotel and His Honour, in our respectful submission,

then correctly takes the view that the use of the

word, "authority" in section 50(4)(c) must refer

to the authority which is at the introductory words

of each of the sections creating licenses, including

a hotel licence and the use of the very wide words

at the start of subsection (4) and the general

powers in placita (a) and (b) as well as (c), mean

that the legislature intended a very wide power
to limit that authority. Justice Jacobs says,

"Well, to limit the authority does not give a power

to prohibit from supply, to exempt from supply".

But the point we would make in response to that

is that what is to be limited is the authority

and if Your Honour Justice Dawson were to be faced

with a situation where that which was the subject

of conditions meant, in effect, none of the things

which could be authorized or none of the things
which were authorized by section 26 could be done,

then we would accept Your Honour's point.	But
we say that by limiting the authority under

section 26(1)(a) to on-premise consumption is,

in the plainest words of section 50(4)(c), limiting

that authority. And that, in our respectful

submission, is the way in which Justice Millhouse
approached the matter.

The alternative views of the majority and,

perhaps it is best to reflect that in the judgment
of Justice Johnston - if I may take the Court to

His Honour's reasons at page 52 - His Honour says

about four lines in:

In my view the argument is good against the

fundamental "remoulding" of any type of licence,

but is particularly strong in relation to

the hotel licence, because such a fundamental

recasting of s.26 - the authority section -

affects the operation of s.27 - the obligation

section. The obligations cast upon the hotel

licence are the justification for the pre-eminent
position which that licence occupies in the

scheme of the legislation. Any fundamental

recasting of the obligations which go with

the licence (whether achieved by a condition
directly relating to obligations or a condition

operating on obligations by way of eliminating

part of the statutory authority) must seriously

undermine the basis for the special position
of the hotel licence.

A1T7/l/MG	11	19/2/&3
Roxburgh

Now, of course, the obligations and the authority can

be fundamentally remoulded very expressly by

placita (a) and (b) as to the types of liquor and

the hours of operation of a particular premise.

And it is not uncommon in this State, as I imagine

in other States, for instance, for a new licensee,

say a liquor merchant's licence, a bottle shop

licence, to be told, "You are subiect to the condition

that you can only sell certain types of liquor"

and there is provision specifically for that.

So that the type of liquor that can be sold is

specifically contemplated as being reduced. The

hours of operation is specifically contemplated
as being altered by a condition and, in our respectful

submission, the plain words of section 50(4)(c)

mean that part of the statutory authority can be

eliminated by section 50(4)(c). And perhaps if

I can simply take the Court to one other passage

in Justice Johnston's case to illustrate that

His Honour really does use some concept of fundamental

remoulding. Page 56, the last full paragraph on

that page. His Honour says:

In my opinion, the application should be dismissed because the applicant was not in

reality an applicant for a hotel licence;

not because its proposed operation is plainly
very different from the sort of operation
carried on in hotels in general or even in

particular hotels; but because its contemplated

operation is not one which falls within the

concept of premises licensed as a hotel as

that concept is delineated by the authority

conferred by the licence and the obligations

which go along with the licence.

So that it gets back, in our respectful submission,

to the point that that fails to give the use of
the word "authority", limiting the authority

in section 50(4)(c), its full work to do.

His Honour says there are some concepts of authority

which cannot be limited under section 50(4)(c).

Now, in our respectful submission, this Court is

faced with conflicting views on that very important

topic. It is a new piece of legislation in

South Australia. The concept of authority is one

which applies across all of the categories of licence

and it is important for this Court to decide in

the face of those conflicting views whether the
views of the majority or the views of Justice Millhouse,

which our client propounds, are the correct ones.

WILSON J:  But the fact that it is a new piece of legislation

rather militates against the wisdom or the necessity

of the High Court jumping in at the first sign

of a different construction. Why should not the

AlT7/2/MG	12
Roxburgh

the supreme court be given a reasonable opportunity to
construe the Act and decide how it is intended

to operate?

MR MANSFIELD:	Well, there are particular reasons why that is so in this case, if Your Honour pleases. The
first, we would say, is that although it is a new
piece of legislation -
WILSON J:	I only picked that up actually because you have

stressed it a couple of times as a reason for granting

special leave.

MR MANSFIELD:  The first is that, as this Court will appreciate,

the licensing jurisdiction is a robust jurisdiction

and in this State, at least, fairly active and

it is important that at first instance these issues

should be resolved as quickly as possible and it is, in our respectful submission, unsatisfactory

for litigants to be faced with this and the

Licensing Court being faced with a series of appeals

which, in our submission, are likely to filter

up to this Court in any event at some stage.

And the other point we would make about this is that this is, on the face of it, a very suitable

case for the issue to be ventilated because the

issue is so clearly thrown up by the majority in

the minority decision and the facts of this particular

case. So, in our respectful submission, it is

appropriate even in the light of Your Honour's

comments. If the Court pleases.

WILSON J:  Can I ask you another question and it is prompted

by the observations that appear at the bottom of

page 52 in the reasons for judgment of

Mr Justice Johnston? The insertion in 1986

of a new paragraph (ba) into section 50(4), that

rather suggests that the legislators intention was

to regard the phrase, "to sell liquor on the licensed

premises for consumption on or off the licensed

premises" as not being open prior to that amendment

to variation by the power under section 50. In other
words, that consumption on or off the licensed

premises is such an integral feature of a hotel

licence that it is the following provisions that

serve to make particular prescription regarding

the exercise of a licence of that kind and it is

that particular prescriptions that were subject

to variation by way of condition in accordance

with section 50(4).

MR MANSFIELD:  W2ll, I cannot dispute that Your Honour could

say that that is at least one implication of that

amendment. Perhaps I should direct Your Honour's

attentionf without reading it, to the comments

of His Honour at the top of page 53 about the

AlT7/3/MG	13
Roxburgh

circumstances of that particular amendment. But

it does not, in our res~ectful submission, militate

here against the grant of special leave because

the question of whether, in relation to a hotel licence

or generally in relation to licenses, the extent

to which section 5O(4)(c) enables the limiting of authorizations under the various categories of licence still remains a very important issue

and sectiion 5O(4)(ba) introduced by amendment

after this decision, really will not solve that

question.

DAWSON J:  Would you say that a licence to sell liquor on

a licensed premises for consumption - off the licensed

premises but not on the licensed premises was

a hotel licence?

MR MANSFIELD: No, Your Honour, we would then say that that

was a wholesale - a retail storekeeper's licence

or depending upon the nature of the premise a

wholesale storekeeper's licence or there are other apt

descriptions.

DAWSON J:  But that would be limiting the

description there in the same way as it is limiting
to say that it is a hotel licence to sell liquor

on the licensed premises for consumption on but not

off the licensed premises.	How can you draw a
distinction?

MR MANSFIELD:  The distinction we would draw, Your Honour,

is simply this: if one was advising a person with

that sort of proposal, one would say this is the

sort of things which the licence contemplates.

Is there any other sort of licence which the Act

contemplates? Now, we accept that the Act contemplates,

primarily, an authority which involves on and off

premise consumption. This particular licence is

the only one which is capable of permitting on premise consumption to fulfil the demand which

His Honour found to exist here. And just because

there are other licences which, if one wanted to

tailor the conditions, might facilitate different

forms of things, does not, in our submission,

MG diminish it.

DAWSON J:  No, I do not really understand that. I

understood you to say that the essential

characteristics of a hotel are to be found in

paragraph (a) in the preliminary words but you

say that even they can be cut down?

MR MANSFIELD:  We say that the court is given power under

section 50(4)(c) to limit the-

DAWSON J:	I understand that, but you say that would extend
to eliminating the words "or off" but not eliminating the word "on".
AlT7/4/RB	14
Roxburgh
MR MANSFIELD:	We would not say that the court did not have

power to do that but we would say that it would not

do that in particular circumstances.

DAWSON J:  What I am asking you, would it have power to do

that, in your submission?

MR :MANSFIELD:  On our argument it would have the power to do

that but, in our submission, it clearly would not

because it would take the view that in relation to

that sort of proposal, a retail liquor merchant's

licence would be available - - -

DAWSON J:  Then if it could do that, it could cut out both

the words on or off and so we come back to the

essential characteristic on your argument that a

hotel licence is a licence to sell liquor on the

licensed premises.

MR MANSFIELD: 

Our argument is that there is no essential

characteristic except to the extent to which there
are a series of authorities deriving from the section

and that the Licensing Court is given by

section 50(4)(c) power to limit those authorities by
deleting the words "or off".

DAWSON J: There are no essential characteristics.

So that

a licence merely to sell liquor would be a hotel

licence, if it were thought fit to vary the

provisions of 26 to eliminate all other requirements.

MR MANSFIELD:  Provided it was within power, the authority

could be limited - I am not quite sure of the sort of

situation Your Honour is ultimately looking to - but

if one looks at a fact situation, in our respectful

submission, if there was still an authority which

section 26 enabled, subject to a condition, the

Licensing Court could grant it.

DAWSON J:  So that it could grant a licence to sell liquor

and call it a hotel licnece?

MR MANSFIELD:  I am not quite sure where one pulls up.

DAWSON J: That is what I am asking you. That is the whole

question.

MR MANSFIELD:  Yes. In our submission, as long as some of

the authorities which exist under section 26(1)

persist and conditions excluding exclude the other

things, it would be capable of being granted. That
is the logical extension of our argument, and we

accept that. But, in our submission, that is what

the legislation has contemplated. Now, Your Honour

would know with this Act, as indeed with - - -

GAUDRON J:I wonder why then the necessity for special licences.

AlT7/5/RB	15
Roxburgh
:MR MANSFIELD:	There is still a structure, as all the Judges

of this court remarked, a structure of persistence
of classes of licences and the things which they

are authorized to do are different and the

circumstances in which one can get those licences are

different, so that depending upon what a particular

applicant proposes to do or wants to do, he has to

come to the court and satisfy himself of certain

things. Now if an applicant came to the court and

said, "I want to sell off premise and I apply for a

section 26 licence", although technically we would

would say, "Well, look, there is a category of licence which, on its face, is more apt for your

accept that section 50(4) might enable the Licensing

application and it has particular onuses of proof which

you should consider and discharge, and in any event we,

the Licensing Court have a discretion, a very wide

discretion" - this Court has had occasion to look at

that discretion in other cases - "under section 59
and,in the exercise of our discretion,where what you

are really after is not something which is apt for

this category of sections, you will not get it". But

technically, that would be a possibility.

Our case is different here because, as the

Licensing Court judge remarked, there is no other licence which is capable of being tailored by limiting the authority to do what this applicant sought to do

and which the court found was a substantial demand

within the conununity.

WILSON J:  Can you state categorically that a general facility

licence could not be tailored to meet the

requirements of your client?

MR MANSFIELD:  No, Your Honour. The answer to that is that if

the applicant is correct, if the Licensing Court

judge was correct and Justice Millhouse is correct,

the answer is categorically, "It could not be given"

because the Act says it could not be given.	So it
is almost a self-defeating proposition.

WILSON J:  But if the majority in the supreme court - if that

is the decision that prevails and it is to the effect,

if I can choose different words, that the legislative

purpose in the Act of creating categories of licences

is frustrated or confused by using a licence under 26,

namely a hotel licence, to permit the sale of liquor

in circumstances which bear scarcely any resemblance

to the terms of the section, because the conditional

power has been exercised to such an extent as to

render most of the requirements of that section

inapplicable, then there is no obstacle in the way of

resorting to that dragnet form of licence.

:MR MANSFIELD: There is, Your Honour: Apart from section 44(2)

which I mentioned to the Court, in the context of

AlT7/6/RB	16
Roxburgh

the demand which was found to exist here, and it is

described in the appeal book at pages 14 to 15 - I
will not take the Court to that - but one has to look
at the circumstances in which a general facility

licence may be given and there are particular

qualifications which one has to prove under the

various pacita of subsection (1) of section 44.

Now, if one looks at the demand which was found to

exist, it does not fit into or it does not readily fit

into any of those subparagraphs of section 44(1).	So
that our answer to Your Honour would be that on the
demand which His Honour found to exist at the moment

it does not qualify us for a general facility licence,

even if the Full Court is correct. The Court will see

that the things which section 44(1) contemplate are all

very specific and the only ones which might possibly

qualify are (a) and (b) and the demand which was found

to exist and which is recited conveniently at pages 14
to 15 of the appeal book is different from those things

which (a) and (b) contemplate.

So that we say, on the facts as they presently

exist, our client would not, quite apart from

subsection (2), be able to come forward under

section 44(l)(a) or (b) or under any of those other

subparagraphs.

GUADRON J:  In a sense,though, the .fact that it may not fit so

readily into 44(1) indicates that it does not really

fit readily into the concept of a hotel licence

either, does it not?

MR MANSFIELD:	The difficulty -
GUADRON J:	What it suggests is that here you have something

that is so sui generis that nothing in the Act is

applicable. That is where that argument must really

lead to, unless -

MR MANSFIELD:	That is the argument - - -
GAUDRON J: But it does suggest the very sui generis nature of

the proposal that was under consideration, does it not?

MR MANSFIELD:  Yes, it does, Your Honour. We say that the

combination of sections that we have referred to
indicates that that sort of demand, provided it falls
within the provisions of a particular authority and
as limited by the imposition of an appropriate

condition limiting that authority, if it falls then

within a section is capable of being granted.	And
that really highlights the two points of view, I
suppose.	I cannot take it further than that, but we

do say that there is a significant argument in favour

of our client's point of view and it is important that

it be be resolved promptly.	If the Court pleases,
that is our submission.

AlT7/7/RB	17
Roxburgh

WILSON J:  Thank you, Mr Mansfield. The Court does not wish

to hear you, Mr Hayes.

The Court takes the view that there is

insufficient doubt attending the decision of the majority

of the Full Court to warrant the grant of special

leave. It would therefore be inappropriate to grant

the application.

MR HAYES:	I do apply for costs, Your Honour.
WILSON J:	I do not suppose you can repel that.

MR MANSFIELD: No, Your Honour.

WILSON J:  The application will be refused with costs.

AT 11.22 AM THE MATTER WAS ADJOURNED SINE DIE

AlT7/8/RB	18	19/2/88
Roxburgh