RSL v Liquor Licensing Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 6612 of 1998

THE RETURNED & SERVICES LEAGUE OF AUSTRALIA (VICTORIA BRANCH) INC (PASCOE VALE SUB BRANCH)	Appellants
v
LIQUOR LICENSING COMMISSION	Firstnamed Respondents
and
THE CARLTON CRICKET & FOOTBALL SOCIAL CLUB LIMITED (ACN 004 658 039)	Secondnamed Respondents

No. 6613 of 1998

THE RETURNED & SERVICES LEAGUE OF AUSTRALIA (VICTORIA BRANCH) INC (GLENROY SUB BRANCH)	Appellants
v
LIQUOR LICENSING COMMISSION	Firstnamed Respondents
and
THE CARLTON CRICKET & FOOTBALL SOCIAL CLUB LIMITED (ACN 004 658 039)	Secondnamed Respondents

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JUDGES:	PHILLIPS, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 and 24 February, 1999
DATE OF JUDGMENT:	15 April, 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 37

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Administrative law - Judicial Review - Certiorari - Liquor Licensing Commission -Application for permit - Representation allowed to "sub-branch" of incorporated opponent - Defects in notice of application excused - "Primary purpose" of applicant's business and "community interest" considered - Conditional licence granted by Commissioner - Confirmed on review by Full Commission - Whether attended by error of law on face of record or jurisdictional error - When error "jurisdictional" - Content of "record" - Certiorari refused - Appeal dismissed - Liquor Control Act 1987 ss.28(1)(e), 48(2)(a), (4), 72, 74, 105. Administrative Law Act 1978, s.10.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr. G.H. Garde Q.C. with Mr. M.J. Corrigan	De Marchi & Associates
For the First Respondent	No appearance.
For the Second Respondent	Mr. W.T. Houghton Q.C. with Mr. J.F. Larkins	Baker & McKenzie

PHILLIPS, J.A.:

These proceedings arise under the Liquor Control Act 1987. That Act was very recently repealed when the Liquor Control Reform Act 1998 came into force. Counsel assured us that nothing in the new Act impinged upon a determination of these proceedings in accordance with the provisions of the 1987 Act. Accordingly, in what follows, it is the Liquor Control Act 1987 to which I refer as "the Act".

On 8 September 1995, The Carlton Cricket & Football Social Club Limited ("Carlton") lodged an application with the Liquor Licensing Commission under the Act for a full club licence and associated permits and authorities in respect of premises consisting of a vacant office block at 177 Glenroy Road Glenroy. I shall refer to these as "the subject premises". Notice of the application was given in a newspaper circulating in the area, as required by s.72(1) of the Act and, for the sake of compliance with s.72(2), notice was posted on or near the front doors of the subject premises. The subject premises are diagonally opposite premises occupied by the Glenroy sub-branch of The Returned and Services League of Australia (Victoria sub-branch) Inc. ("the R.S.L."), though no notice of objection was lodged on behalf of the Glenroy sub-branch for some 12 months.

On 21 November 1995, the Pascoe Vale sub-branch of the R.S.L. gave notice under s.74(1)(a) of the Act that it considered that the granting of Carlton's application would not be in the interests of the community in the neighbourhood of the subject premises. A like notice was given under s.74(1)(a) on behalf of the Glenroy sub-branch of the R.S.L., only on 9 September 1996. On 3 October 1996, Commissioner Horsfall held a directions hearing in the course of which he admitted the Pascoe Vale sub-branch of the R.S.L. as a representor under s.74, but rejected the Glenroy sub-branch's application for like admission. Of course both notices given by the sub-branches were out of time according to s.74(1) which required such notice to be given within 14 days of Carlton's publishing notice of its application in a newspaper under s.72, but the Commission is given a discretion by s.28(1)(e) to disregard non-compliance ("a failure in giving notice"??). Commissioner Horsfall exercised that discretion in favour of the Pascoe Vale sub-branch, whose notice was not long out of time, but declined altogether to exercise that discretion in favour of the Glenroy sub-branch, a ruling that was confirmed on 14 November, the first day of the hearing.

Carlton's application was heard by Commissioner Horsfall on 14, 18, 20 and 22 November and 9, 10, 11, 24 and 30 December 1996. The Commissioner announced his decision on 12 March 1997, to grant Carlton's applications conditionally under s.80 and subject to the terms and conditions set out in the decision. On 26 March, the Commissioner delivered his reasons for that decision.

On 9 April 1997 the Pascoe Vale sub-branch of the R.S.L. applied under s.105 to the Liquor Licensing Commission for a review of the Commissioner's decision by the Full Commission. The application was made on a number of grounds, including what was said to be the wrongful exclusion of the Glenroy sub-branch from the proceeding at first instance. The Full Commission heard the application for review on 6, 7, 8 and 9 April 1998 and delivered its decision on 24 June 1998. By a majority of two to one, the Full Commission dismissed the application for review.

On 24 July 1998 a Master of the Court granted an application of the Pascoe Vale sub-branch of the R.S.L. under s.3 of the Administrative Law Act 1978. Although in terms rather more appropriate to the institution of an appeal in accordance with, say, Order 58 Part 3 of Chapter I of the Rules, the order was understood as an order nisi directed to the Liquor Licensing Commission and Carlton to show cause why the decision of the Full Commission of 24 June 1998 should not be reviewed. In essence, the Pascoe Vale sub-branch was seeking an order in the nature of certiorari to quash that decision on a number of grounds (identified indirectly in the order made by the Master as "questions of law"). That was proceeding No.6612 of 1998. On 24 July 1998, the Master made a like order in similar terms (though with an additional ground) and on the application of the Glenroy sub-branch of the R.S.L.: that was proceeding No.6613 of 1998. The standing of the Glenroy sub-branch to make an application under s.3 of the Administrative Law Act is perhaps not so plain as the standing of the Pascoe Vale sub-branch (if indeed they are properly treated as two bodies, which must be moot); for whereas the Pascoe Vale sub-branch was an applicant for review under s.105 of the Liquor Control Act, the Glenroy sub-branch was not. But see and compare the reference in s.3 to both "a person affected" and "a party". The distinction was not adverted to below and, as it does not matter in the end, I pass it by.

The two proceedings commenced by the orders of 24 July came on for hearing before a judge in the Trial Division on 22 September 1998. Senior and junior counsel appeared for the "two appellants" (that is, the applicants for the orders nisi) and senior and junior counsel appeared for Carlton. Although counsel for Carlton are described in the authenticated orders made on 25 September as appearing also for the Liquor Licensing Commission, that was not so: we were told from the Bar table that the Commission appeared briefly by its solicitor who announced that the Commission would abide the decision of the Court and then withdrew. The argument on 22 September did not last the day and on 25 September the learned judge discharged the orders nisi, giving reasons therefor. The Pascoe Vale sub-branch and the Glenroy sub-branch each then filed a notice of appeal, naming itself as "appellant", and it is those two appeals which are now before us for decision.

The parties

First, there is the problem generated by the apparent division created in these proceedings between the Pascoe Vale sub-branch and the Glenroy sub-branch of the R.S.L. The R.S.L. is a body corporate and the two sub-branches are no more than groupings of members within the umbrella of that body corporate. At all events, that was how they were depicted to us by counsel on these appeals. One of the errors asserted on behalf of the "appellants" was that having admitted the Pascoe Vale sub-branch of the R.S.L., Commissioner Horsfall had had no power to exclude the Glenroy sub-branch; for the R.S.L. was the only relevant legal person and having been admitted it could not also be excluded. That the R.S.L. was the relevant legal person was asserted, too, by counsel for Carlton, who on that basis objected to there being two appeals on foot. However, counsel for all parties (or perhaps more strictly "both parties") were content that we should hear argument on all grounds raised by either notice of appeal, and that is what we did; but the problem remains.

The difficulty stems, of course, from the orders made on 24 July 1998 which were obtained ex parte by the R.S.L. masquerading as two entities, the Pascoe Vale sub-branch and the Glenroy sub-branch. The orders nisi were not identical; for the Glenroy sub-branch took the extra ground of error in relation to its exclusion from the hearing before the Commissioner, which the Pascoe Vale sub-branch no longer asserted. On the other hand, the Pascoe Vale sub-branch had been the applicant before the Full Commission on review under s.105, not the Glenroy sub-branch. And of course, the proceedings not being consolidated, the trial judge made separate orders once judgment was delivered on 25 September. In the end, I think that this is a case for consolidation and then amendment. An order should be made in respect of the two appeals that they be consolidated and the title amended to refer only to the R.S.L. Neither party objected to that solution. There would seem no point in troubling further about the proceedings below. But the two appeals before us should now be regarded as one. The appellant is the R.S.L., although for convenience I shall continue to refer to the two sub-branches as "the appellants" and to the current proceedings as "two appeals", as they were commonly treated in argument.

Certiorari

As the appellants were claiming relief in the nature of certiorari and the argument turned very much on what was said in Craig v. South Australia (1994) 184 C.L.R. 163, it is convenient first to recall what the High Court said there about the remedy generally. In their joint judgment Brennan, Deane, Toohey, Gaudron and McHugh, JJ. said, at 175-6 (omitting footnotes):-

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing ... of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error ..., failure to observe some applicable requirement of procedural fairness ..., fraud ... and 'error of law on the face of the record' ... . Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it ... . In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record." [Emphasis added]

In Craig it was argued that the alleged error on the part of the trial judge was either "jurisdictional error" or "error of law on the face of the record", and so it was here. In the course of the argument before us, the expression "jurisdictional error" was sometimes used, I think, to encompass a denial of procedural fairness, but nothing turned on that and in what follows I make little reference to it. It is sufficient to concentrate, at least in the main, on the difference between "jurisdictional error" and "error of law on the face of the record".

The grounds in the order nisi which was granted on the application of the Glenroy sub-branch (and which therefore contained the additional ground concerning its exclusion) were as follows:-

"1.the majority of the Commission should have found that Commissioner Horsfall was wrong in law in refusing to allow Glenroy R.S.L. to be a party to the application;
2.the majority of the Commission was wrong in law in finding that the Appellant had sufficiently complied with the advertising requirements of Section 72 of the Liquor Control Act 1987;
3.the majority of the Commission was wrong in law in failing to require the Appellant to re-advertise and re-display its application in order to satisfy the requirement of Section 72 of the Liquor Control Act 1987;
4.the majority of the Commission applied wrong principles of law in determining the primary purpose of the business of the Appellant;
5.the majority of the Commission was wrong in law in determining the primary purpose of the business of the Appellant was a Club;
6.the majority of the Commission was wrong in law in that they failed to consider properly or at all or alternatively applied wrong legal principles in their consideration of any deleterious effect on the community which would result from granting the application;
7.the majority of the Commission were wrong in law in granting the Appellant an exemption from the requirements of Section 58(1) of the Liquor Control Act 1987."

All of these save ground 1 were characterised by the trial judge as alleging error of law on the face of the record, in relation to which his Honour regarded himself as confined accordingly to "the record", as emphasised by the High Court in Craig. By reason, however, of s.10 of the Administrative Law Act, the "record" could not be regarded, as it was in Craig, as excluding the reasons for decision; for those reasons were made part of the record by statute. The judge regarded s.10 as extending the "record" to include the reasons for decision of the Full Commission, but declined to have regard to the reasons for decision of Commissioner Horsfall - and in so declining his Honour fell into error, according to Mr. Garde, Q.C. who, with Mr. Corrigan, appeared for the appellants.

As for ground 1 in the order nisi, the judge said that that alleged either jurisdictional error or error of law on the face of the record. On the basis of what was said in Craig, his Honour accepted that he could, in respect of the allegation of jurisdictional error, have regard to all material that was put before him, although his Honour declined to receive (at least in the first instance) the transcript of evidence of the hearing before the Commissioner and the numerous exhibits that were put in evidence then. Although again represented by counsel for the appellants to be error, I am not myself clear that what his Honour said at the conclusion of argument amounted to a final rejection of the transcript of evidence and these exhibits; it may well have been that after consideration his Honour reached a view which did not depend upon any closer scrutiny of the transcript which had been offered.

Be that as it may, and without deciding whether his Honour fell into error or not in declining to refer to the reasons for decision of the Commissioner or the transcript of evidence and the exhibits, on these appeals we allowed counsel to range over all of the materials that were available before the trial judge, so that if the appellants were wrongly disadvantaged in argument before his Honour, that disadvantage has now been remedied.

On these appeals, however, the appellants put an even more far-reaching submission in relation to the trial judge's characterisation of the grounds taken in the orders nisi. That submission was that all of the grounds - not just possibly the first - involved jurisdictional error and therefore his Honour should not have limited himself to "the record" in relation to any of them. He was bound, according to Craig it was said, to look at all of the material put before him, including the transcript of oral evidence and all the exhibits, before ruling upon any of the grounds taken in the orders nisi, and because he did not do so the trial miscarried.

The submission was put thus in the appellants' Outline of Argument:

"Grounds such as asking wrong questions, ignoring relevant material, identifying incorrect issues, making erroneous findings, or reaching mistaken conclusions are all errors of law which constitute jurisdictional error such as may invalidate an order or decision. Craig v. South Australia."

But this does not truly reflect what the High Court said in Craig. In their joint judgment, their Honours said at 179:-
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." [Emphasis added]

The appellants' Outline omitted altogether the critical expression "and the tribunal's exercise or purported exercise of power is thereby affected" which plainly serves to qualify all the descriptions of error which precede it. Thus, to ask a wrong question, to ignore relevant material and so on, is jurisdictional error if - but only if - "the tribunal's exercise or purported exercise of power is thereby affected". One may imagine readily enough a case in which that will be so, but again, there will be many cases - and perhaps more commonly - where it is not so. Ultimately, at all events when what is in question is error in the course of decision-making (as was the case here), the task for the court from which certiorari is sought must be to distinguish between, on the one hand, those matters which the tribunal is given the jurisdiction to decide, and even to decide wrongly (so that error does not go to jurisdiction), and on the other hand those in respect of which, while it may have the power to inquire into them, it does not have the jurisdiction to decide wrongly (so that error does go to jurisdiction).

That that is the ultimate task is confirmed by what their Honours said in Craig at 179-180, in the passage immediately following what has so far been quoted. Speaking of a court of law, their Honours proceeded thus:-

"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."

Two points should be made at this stage. First, though their Honours were contrasting the position of a court of law with that of an administrative tribunal, it is becoming increasingly difficult to apply that distinction with any confidence. As counsel for Carlton said, the Liquor Control Commission is established in many ways to resemble a judicial tribunal. But in this area the concern is not so much with the trappings, or indeed the final classification (if that is possible) of the body in question, but with the jurisdiction conferred upon it by the statute, in the sense of the functions committed to it. It was to that end that their Honours were contrasting a court of law with a purely administrative tribunal, pointing out that a court of law will commonly have the jurisdiction to decide questions of law as well as fact, so that if the court of law goes wrong when deciding a question of law it will be less likely to have fallen into jurisdictional error. But that is not because the body in question is classified as court of law and not an administrative tribunal, but because being a court of law it probably has had committed to it by the Parliament the task of deciding the question of law, whether it decides it rightly or wrongly - and so in deciding, even if it goes wrong, it does not stray outside its jurisdiction. If erroneous, its decision may well be open to appeal, but it will not be subject to prerogative relief for want or excess of jurisdiction (even if amenable to such relief if error of law is disclosed on the face of the record).

Secondly, though for obvious reasons their Honours were speaking of questions of law in respect of which there might be error below, the analysis is not dissimilar in relation to questions of fact. It is just that on questions of fact it is perhaps even less likely that the body in question will have strayed outside its jurisdiction. Administrative tribunals are commonly charged with determination of the facts (as of course are courts) and error in making a decision in that regard is less likely to attract certiorari for jurisdictional error. That is not to say that error of fact may not in certain circumstances amount to jurisdictional error; it may. For example error on a question of fact will go to jurisdiction if the jurisdiction of the tribunal is conditioned upon some event's having occurred, as distinct from the tribunal's deciding, rightly or wrongly, that it has occurred. In the former case, the tribunal will have exceeded its jurisdiction if it proceeds otherwise than after the event has actually occurred: for example, Potter v. Melbourne and Metropolitan Tramways Board (1957) 98 C.L.R. 337. It is otherwise if the tribunal has had conferred upon it the jurisdiction to proceed after deciding that the event has occurred and thus irrespective of whether its decision on the fact was right or wrong. Such error may be open to correction on appeal (if an appeal lies) but it is not jurisdictional error. Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 C.L.R. 369 at 388-9 per Dixon, J., R. v. Blakeney, ex parte Association of Architects etc. of Australia (1950) 82 C.L.R. 54 at 57‑8.

Whether the question decided below has been one of fact or law, where the body in question, be it administrative tribunal or court of law, is authorised to decide the question without being guilty of jurisdictional error if it decides wrongly, the body will sometimes be described as having the power (or the jurisdiction) to decide "conclusively" or "authoritatively" (not meaning to exclude any right of appeal that may exist but meaning that the tribunal, even if it errs in deciding, still stays within its jurisdiction). Sometimes it will be described more vividly as having the power, or the jurisdiction, not only to go right but also to go wrong: R. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192 at 234 per Lord Reid (revisited by his Lordship in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 at 171), Parisienne at 374, 375, per Latham, C.J. But whatever description is given it, the duty of the supervising court will be to determine whether the power of the decision-making body is as I have just described (in which case prerogative relief will not go) or is not so extensive as to exclude such relief.

Although ordinarily that issue must be largely if not wholly one of statutory construction, the difficulty that that may pose in practice is well demonstrated by R. v. Gray, ex parte Marsh (1985) 157 C.L.R. 351 where the High Court divided evenly over the result. That was an application for prohibition not certiorari, but for present purposes the only distinction between the two is the stage at which each goes (the one during the decision-making below, and the other after it). The High Court was asked to grant prohibition directed to Gray, J. of the Federal Court, to whom the industrial registrar had referred an application for inquiry into irregularities which allegedly occurred during a union election. The right to apply for such an inquiry was given to a member of the union who "claims that there has been an irregularity" and the word "irregularity" was defined. All members of the Court agreed that in this instance what were claimed to have been "irregularities" were incapable of satisfying the definition. The question was whether therefore the Federal Court judge was exceeding his jurisdiction by proceeding to an inquiry into the allegations.

Gibbs, C.J. was of the view that he was, and so were Wilson and Brennan, JJ. After noting that jurisdiction depended upon an application alleging irregularities, Gibbs, C.J. said, at 372:-

"It is impossible to suppose that the Parliament intended that the Federal Court, acting under s.165(3) of the Act, could declare an election void if no irregularity had occurred. However, if that Court gives a wrong meaning and effect to the word 'irregularity' in Pt IX - if it applies the wrong test in deciding what is an irregularity - and so holds that something is an irregularity which is not in law capable of being so described, it is assuming to exercise the powers conferred on it by statute although the condition of their exercise is not satisfied."

At 373, his Honour said:-
"The Federal Court had, of course, to decide whether or not it had jurisdiction to proceed - it had jurisdiction to determine whether the state of things, upon whose existence its jurisdiction depended, did or did not exist, but the correctness of its decision on that question may be tested by prohibition .... Since, for the reasons given, the matters alleged ... were not in truth irregularities within the meaning of Pt IX prohibition should issue to restrain further proceedings."

Mason, J. was of opinion that Gray, J. had not strayed outside the Court's jurisdiction, all questions of irregularity or no being committed for decision to the Federal Court. His Honour first referred to the relevant principles in a way that was non-contentious, saying, at 374-5:-

"In general, the grant of jurisdiction to a superior court carries with it the power to determine conclusively, subject to any appeal, the existence or otherwise of facts upon which the jurisdiction depends, unless the legislature otherwise provides. .....
If, however, the court lacks power to decide conclusively whether it has jurisdiction because its jurisdiction is made to depend upon the actual occurrence of some fact, event or circumstance, then the court will be subject to the prerogative writs in the event that it wrongly decides it has jurisdiction ....
In general, prohibition should not issue unless and until the court or tribunal to which the writ is sought to be directed has had an opportunity to consider its jurisdiction and has erroneously decided to exercise that jurisdiction ..."

Then at 376, his Honour said:-
"The jurisdiction of the Court to hold an inquiry under s.165(1) into the election depended on the reference by the Industrial Registrar of an application for an inquiry ... claiming that there had been an 'irregularity' in or connexion with the election.
However, I do not read the provisions of [Pt IX] as conditioning the existence of the Court's jurisdiction on the actual occurrence of an 'irregularity' in the statutory sense of that expression."

And in stark contrast to what had been said by the Chief Justice, Mason, J. added:-
"It is nonsense to suppose that Parliament intended the Federal Court's jurisdiction to depend on the actual occurrence of any irregularity. The exclusion of a right of appeal to the Full Court of the Federal Court clearly indicates that Parliament's intention was that the primary judge's determination was to be conclusive on the issue he was called upon to decide, that is, whether the alleged irregularity had occurred."

In his Honour's opinion it was enough to enliven the jurisdiction of the Court to inquire that an application had been made claiming irregularity had occurred, irrespective of the correctness or not of that assertion. Whether or not irregularity (as defined) had occurred was to be determined by the inquiry.

Wilson, J. and Brennan, J. agreed with Gibbs, C.J. that Gray, J. had exceeded his jurisdiction in proceeding to inquire, in that the jurisdiction to inquire was made by Parliament to depend upon a claim alleging "irregularity" within the meaning of the definition, and that was not so of this member's claim. So far as concerned the Court's jurisdiction to make an order by way of granting relief after inquiry into a valid complaint, their Honours agreed in effect with Mason, J., that that jurisdiction was made to depend not upon "the actual occurrence of any irregularity" but upon the Court's own finding that irregularity had occurred, with the result that error in that finding, after inquiry, would not attract supervisory intervention. (Presumably such a finding would none the less have to have been reasonably open.)

Deane, J. and Dawson, J. agreed with Mason, J. that jurisdictional error was not established in the decision of Gray, J. to proceed to an inquiry. In relation to the jurisdiction to conduct such an inquiry Deane, J. said, at 390:-

"Indeed it was the plain intention of the Parliament, evidenced by the provisions excluding ordinary rights of appeal, that the determination of such questions of fact and questions of law should be peculiarly for the judge conducting the inquiry. His jurisdiction to decide those questions includes jurisdiction to decide them wrongly. That being so, the mere fact that there is an actual or threatened mistaken decision by the learned trial judge of questions of fact or law arising in the course of the inquiry neither involves an actual or threatened excess of jurisdiction nor provides any warrant for this Court to assume jurisdiction to intervene midway in the course of the proceedings before the Federal Court."

The conflict in the judgments in Gray demonstrates vividly the difficulty of being clear, at least in some cases, about the extent to which even a court of law has been given the jurisdiction to decide questions "conclusively" or "authoritatively" or has "the jurisdiction to go wrong". But, because the jurisdiction of the Federal Court was at issue, the judgments also demonstrate, I think, that in the final analysis what matters may be scarcely different in kind as between court and tribunal, though emphases may vary. Of course Lord Diplock said in In re Racal Communications Ltd. [1981] A.C. 374 that in Anisminic the House of Lords "for practical purposes abolished" the distinction between error of law and jurisdictional error in relation to administrative tribunals, on the ground, it would seem, that any error of law by an administrative tribunal must go to jurisdiction. Though that view was expressly rejected in Craig, it was a view which was anyway based only on a presumption, a presumption about the nature and extent of the task committed to an administrative tribunal by Parliament. Thus Lord Diplock said, at 383:-

"Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so. The break-through made by Anisminic [1969] 2 A.C. 147 was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity."

For present purposes the critical point lies in the first sentence: Parliament could if so minded confer upon any body the power to decide (and to decide conclusively, I would add) questions of law as well as questions of fact, and it was a presumption only that Parliament did not intend to confer such power on an administrative tribunal, as distinct from an inferior court. If that presumption were borne out by the statute in question in a particular case, then of course the conclusion might well follow that error of law went to jurisdiction - but the conclusion then depends on whether the presumption is borne out. In the case of the Liquor Licensing Commission I doubt that starting from any such presumption is helpful, but on this analysis there is nothing in Racal Communications to deny what I have sought to demonstrate, that the issues in a case like one now before us depend upon identifying the task committed by the Parliament to the body in question, be it court or tribunal.

In short, it seems to me that, though critical in some cases (as was recognised by the High Court in Craig at 179), the distinction between a court of law and a true administrative tribunal is essentially of importance only if and in so far as the nature of the one or the other sheds any light on deciding the intention of the Parliament in committing the task at stake to the body in question - and in particular whether that task includes not only the power to decide but also the power to decide wrongly (and whether on questions of fact or law) without attracting prerogative relief: compare Newcastle Wallsend Coal Co. Pty. Ltd. v. Court of Coal Mines Regulation (1997) 42 N.S.W.L.R. 351 at 386-7, contrast 390-1. In Australia legislative experience is so diverse that there must be a danger in relying too quickly upon presumption, and especially a presumption which depends upon the nature and function of the body in question, even (as Gray demonstrates) if it is unquestionably a court of law. Indeed, while Gray concerned a court, R. v. Small Claims Tribunal, ex parte Barwiner Nominees Pty. Ltd. [1975] V.R. 831 involved a tribunal and there is much in that earlier judgment of Gowans, J. to like effect.

In Barwiner Nominees the Small Claims Tribunal, in adjudicating upon a claim by a consumer for a refund of the purchase price of a television set, had made an order for payment of the amount claimed. Gowans, J. held that in determining the claim the tribunal was bound to apply the law, including the Goods Act 1958, and that Act would have confined the claimant to damages. His Honour said, at 839:-

"I have a strong impression that the claim was heard and determined without adverting to the only legal basis on which it could be allowed i.e. as damages. But this does not appear on the face of the record, and unless what was done amounted to an excess of jurisdiction, certiorari would not lie."

After then considering Anisminic and rejecting the conclusion expressed by B.C. Gould in Public Law, 1970 (at 361) that "the practical effect of Anisminic is ... that any error of law can be reckoned as jurisdictional" and (at 366) that "it is impossible for tribunals to commit errors of law within the jurisdiction", Gowans, J. proceeded, at 841:-
"Can it then be said that failure to advert to the only legal basis on which the claim could properly be allowed involved the tribunal in stepping outside its jurisdiction?
The task of the Small Claims Tribunal under the Statute [under which it was established] was to consider claims and to determine the rights of the claimant therein, and it was implicit in the Act, in my view, that those rights should be treated as established if, but only if, the Tribunal concluded that the law, including the Goods Act, authorised it.
If it appeared from the material that the Tribunal had considered that the law was not relevant at all or, if it was, that it did not authorise its order or that it had not concluded that it did, there would be a case for treating the order as made without fulfilment of the conditions, and therefore without jurisdiction. .... But there is nothing in the material to show that the Tribunal did not conclude that the law authorised the order made. All that appears is that the Tribunal was itself in error in concluding that the law authorised the order. This is not enough to show a want or excess of jurisdiction." [Emphasis added]

His Honour was clearly of the view that the Tribunal was not straying outside its jurisdiction simply because it made some error in respect of the law which it was required to apply. Presumably, had the error been disclosed by the record, the Court might have interfered, but not on the ground of a want or excess of jurisdiction.

Accordingly, in a case like the present the essential search must be for the task which is confided to the body whose decisions are under attack; for only if that body strays beyond that task will there be a want or excess of jurisdiction. See also and compare D.P.P. v. His Honour Judge Fricke [1993] 1 V.R. 369 at 376-7, Barnes v. Edwards (1993) 31 N.S.W.L.R. 714 at 719-20, State Electricity Commission v. Rabel [1998] 1 V.R. 102 at 116, Guss v. Magistrates' Court of Victoria [1998] 2 V.R. 113 at 117-122, Marksman Training Systems Pty. Ltd. v. Industrial Relations Commission of S.A. (1998) 71 S.A.S.R. 72 and (concerning a privative clause) Anderson v. Judges of the District Court of N.S.W. (1992) 27 N.S.W.L.R. 701 at 717-8. Each of the grounds raised in the orders nisi will have to be considered to the extent that it was argued on these appeals, but, as will be seen, it is difficult to characterise any of them as raising jurisdictional error in the sense I have explained, though arguably the first - that of excluding "the Glenroy sub-branch" - raises a question of procedural fairness for which certiorari might go. And if that is so, then the trial judge fell into no error in declining to look at the transcript of the evidence and all the exhibits in respect of all grounds other than the first. In respect of all grounds save the first, he properly confined himself to "the record" including, by virtue of s.10 of the Administrative Law Act, "the reasons for ... decision" (though whether that expression extends beyond the reasons for the decision of the Full Commission which was under challenge in these proceedings in the Court is another matter, and one to which I return near the end of this judgment).

The exclusion of the Glenroy sub-branch

Perhaps the major point of these appeals revolved around what was called the exclusion of the Glenroy sub-branch of the R.S.L. The appellants contended, first, that the R.S.L. was the only relevant legal person, that the R.S.L. had been admitted in the guise of the Pascoe Vale sub-branch, and that it could not thereafter be excluded in the guise of the Glenroy sub-branch. The difficulty with this argument is that it was raised for the first time on these appeals. Certainly it is not how the matter was presented to Commissioner Horsfall. By their respective office-bearers, both sub-branches sent notices of "objection" (strictly speaking notices under s.74(1) to the Commission), Pascoe Vale sub-branch on 21 November 1995 and Glenroy sub-branch on 9 September 1996. Both notices were out of time according to s.74 and so application was made by the advocate who claimed to appear for both sub-branches for an exercise of the Commission's discretion under s.28(1)(e). The application on behalf of the Pascoe Vale sub-branch was founded on its notice of 21 November 1995, and the application for the Glenroy sub-branch, on its notice of 9 September 1996. It was never put to the Commission (at either stage) or to the Court (until it was put to us) that the first application having been successful there was absolutely no need for the second. And if, as was now said, there was no need for the second, how is it that the appellants complain of "the exclusion of the Glenroy sub-branch"? On their own argument, that "exclusion" was no exclusion at all.

As the argument developed before us, it became apparent that the appellants were contending that the Commissioner's "exclusion of the Glenroy sub-branch" had had the consequence, in practical terms, of denying to the R.S.L. the opportunity of putting arguments appropriate to the Glenroy sub-branch as distinct from the Pascoe Vale sub-branch. Mr Garde submitted that the exclusion must have had "a limiting or constraining effect" not only on the Commissioner in his conduct of the hearing but also, and more importantly, on the advocate who was trying to present the case on behalf of the R.S.L. and all relevant branches, including Glenroy, which after all was just over the road from the subject premises, was next door to a garage site to be used for parking if the club licence was granted, and was the principal opponent in the then continuing saga of Carlton's application for planning permission: as to which see Returned & Services League of Australia (Victorian Branch) Inc., Glenroy sub-branch v. Moreland City Council [1998] 2 V.R. 406. To this end therefore we invited appellants' counsel to demonstrate by reference to the transcript of the hearing how, and in what respects, the advocate for the R.S.L. had been "limited or constrained" in putting the case for his client or clients. Yet counsel could not do so and essentially the argument was reduced to what "must have been". The "exclusion of the Glenroy sub-branch" was said to have been an obvious denial of procedural fairness; the consequences of that denial were not for evidence, nor, according to Stead v. S.G.I.O. (1986) 161 C.L.R. 141, could the court speculate as to what might have been; it was enough that the "Glenroy sub-branch" had been excluded when it ought to have been admitted.

To my mind, the argument is unpersuasive, particularly when it is recalled that it is advanced in support of a claim for certiorari. Stead was altogether different. There, the barrister for one party had been stopped by the judge in presenting his case on a particular aspect, only to learn when judgment was subsequently delivered that that point was resolved against him. That is not this case, for the appellants were unable to show that their advocate, Mr. De Marchi, was hindered by Commissioner Horsfall in the presentation of his case for the R.S.L. Indeed those parts of the transcript to which we were taken by one side or the other showed the contrary.

Correspondence on behalf of the Glenroy sub-branch set out its original objections to the grant of a licence to Carlton, and they were two: no need in the area and likely traffic congestion. As was pointed out by Mr. Houghton Q.C., who with Mr. J.F. Larkins appeared for Carlton on these appeals, both these points were canvassed in evidence before the Commissioner. Moreover Mr. De Marchi called, among others, Mr. Sherriff, the president, and Mr. Thomson, the secretary of the Glenroy sub-branch and led evidence from them about the effect on that sub-branch of the application by Carlton. He also called Mr. Cullen, a member of the State executive of the R.S.L. itself, who spoke in wider terms about the effect of competition on local branches, particularly in respect of fund-raising for community projects. It is difficult to discern any such constraint as is now alleged to have been operating on Mr. De Marchi's presentation of a case for his client the R.S.L., or indeed for his clients "the Glenroy sub-branch" and "the Pascoe Vale sub-branch".

One exchange that occurred during the taking of evidence is particularly instructive. After the Commissioner's rejection on 3 October 1996 of the application to admit the Glenroy sub-branch and his confirmation of that ruling on 14 November, the position of the Glenroy sub-branch in relation to the hearing arose more than once in discussion about evidence that was being led. On one such occasion this exchange occurred:-

"THE COMMISSIONER:      So your client in making that application is the Pascoe Vale R.S.L.? You are in fact standing in the shoes of the Glenroy R.S.L. and pushing their barrow as well. Now, you must remember that you are here representing the Pascoe Vale R.S.L. and not another party.
MR DE MARCHI:                That is so, sir, yes.
THE COMMISSIONER:      I realise that the argument has been brought on behalf of the Glenroy R.S.L. as well.
MR DE MARCHI:                That is so.
THE COMMISSIONER:      But in a sense you are using the cloak of the Pascoe Vale R.S.L. to put up the proximity of the Glenroy R.S.L. who is probably your major client - let us not mince words - to --
MR DE MARCHI:                Well, they are a client in the Supreme Court proceedings, sir, yes.
THE COMMISSIONER:      Yes. I will not inquire where the bill is going but ---
MR DE MARCHI:                Mr Sherriff [the president of the Glenroy sub-branch] will be able to answer that.
THE COMMISSIONER:      I am sure he could. So in a sense, your client and possibly your other client are not being adversely affected because the issues about the proximity of the Glenroy R.S.L. and of the Pascoe Vale R.S.L. are being put to me and I can obviously take into account on the question of need the proximity of the issues that you are raising in relation to the Glenroy R.S.L.
MR DE MARCHI:                That is so, sir, yes.
THE COMMISSIONER:      So your clients - both the present one and the absent one - in a sense are not being disadvantaged?
MR DE MARCHI:                Yes. ...."

Mr. De Marchi went on to express concern, not about the exclusion of the Glenroy sub-branch, but about the defects which he was seeking to establish in Carlton's advertising of its application as required by s.72 of the Act.

In fact, Mr. De Marchi's concern in that regard led, at a late stage on 10 December, to the Commissioner's allowing an amendment to the Pascoe Vale sub-branch's particulars of objection to include the question of notice. At the start of the day's hearing the Commissioner ruled on the application to amend the particulars and granted it, but only after an assurance from Mr. De Marchi that he was not seeking "any other orders in relation to the matter against the applicant", something to which the Commissioner returned later that same day when, once again in relation to the advertising by Carlton of its application, the position of the Glenroy sub-branch seemed to intrude. At that point Mr. De Marchi assured the Commissioner, expressly this time, that "there is no attempt to re-visit your ruling on 3 October", an attempt which the Commissioner made it plain he would not allow in view of the assurance given that morning. The discussion on that occasion ended up in this way:-

"MR DE MARCHI:                 That is a consequences [sic] that I was referring to, sir, and I am not attempting to bring the Glenroy R.S.L. back into these proceedings however tempting it might be to do so.
THE COMMISSIONER:      Well, they are there anyway. They are there anyway as witnesses.
MR DE MARCHI:                They are, sir, and essentially their case has been permitted to be put to you fairly by Mr Larkins, and of course by your consent, so we have no difficulty with that."

I have gone through the transcript as Mr. Garde invited us to do and, so far as I could see, after the ruling on 3 October was confirmed on 14 November, Mr. De Marchi accepted the ruling and made no further attempt to reopen it, even when the Commissioner pointed out to him that he might earlier have challenged the ruling elsewhere had he been so minded. In short, Mr De Marchi appears to me to have been content with his position as advocate for the R.S.L. "under the cloak of the Pascoe Vale sub branch" and certainly he seems to have taken full advantage of it, putting a case, without objection, for the State executive while concerning himself with the Glenroy sub-branch as well as the Pascoe Vale sub-branch. It must be borne in mind that the Glenroy sub-branch had no legal persona and presumably, had its application for admission been granted, it would have been two or three office-bearers who were admitted as representors under s.74 (as were the Rev. Gilchrist, for the nearby Uniting Church, and that church's secretary, Mrs. Woods). Yet both the president and the secretary of the Glenroy sub-branch were in fact heard in full. In the Full Commission the majority was moved to observe that-

"... there can be no doubt that the office bearers at the Glenroy RSL were given ample and at times painstaking opportunity by the Commissioner to be heard in relation to their views in this application ..." -

and, despite the efforts of appellants' counsel, I am not persuaded that the Full Commission mistook the position before the Commissioner.

In my opinion, it was simply not established before us that the ruling of Commissioner Horsfall, not to admit "the Glenroy sub-branch" as a representor under s.74, had any consequence in the conduct of the hearing thereafter. Of course we cannot speculate, as the Full Commission conceded, how the office bearers of the Glenroy sub-branch would have conducted the case had "the Glenroy sub-branch" been admitted as a representor, but none the less, if the appellants' argument is to succeed, there must be some basis for supposing that the Commissioner's ruling affected the complainant adversely - and I can see none. Moreover, as counsel for Carlton pointed out in a supplementary submission, the Glenroy sub-branch of the R.S.L. took no steps to review the Commissioner's decision of 3 October 1996, confirmed on 14 November, to exclude Glenroy as a representor. In Vakauta v. Kelly (1989) 167 C.L.R. 568, such a failure to act was taken to be a waiver: at 572-3, 577 and 578-8. Whether or not that could be said here, Glenroy's failure to react promptly or at all must reflect adversely upon the assertion now made, that because of the ruling of 3 October the hearing altogether miscarried. Mr. Garde's claim that the application to be admitted under s.74 was renewed during the hearing after 14 November, and renewed more than once, does not appear to be borne out by the transcript.

That the ruling "excluding the Glenroy sub-branch" had no consequence in the conduct of proceedings so far as the R.S.L. was concerned must be relevant when certiorari is sought for error; for it goes at least to the exercise of the discretion to refuse relief on the ground that, if error there was, it occasioned no significant prejudice to the party alleging error. But was there error in the first place?

The procedure laid down by s.74(1) is this:-

"(1)A person, including the council of the municipality in which premises to which a licence or application relates are, or are proposed to be, situated, who considers that the grant, variation, transfer or removal of a licence or extended hours permit is not in the interest of the community in the neighbourhood where the premises to which the application relates are situated -
(a)may, within 14 days after a notice of the application is published in a newspaper in accordance with section 72, give to the Chief Executive Officer notice that the person considers that the grant, variation, transfer or removal would not be in that interest; and
(b)may, within 14 days after a notice is so published, give to the Chief Executive Officer particulars of the grounds on which the person considers the grant, variation, transfer or removal would not be in that interest."

And s.28(1)(e) provides:-
"(1) For the purposes of a proceeding, the Commission may - ...
(e)disregard any omission, error, defect or insufficiency in a notice, application or other document or any failure, defect or insufficiency in giving, serving, displaying or advertising of a notice, application or other document."

By s.28(1)(e) the Commission is plainly given a discretionary power to, in effect, excuse non-compliance with the time limits laid down by s.74, and that discretion the Commissioner purported to exercise. He made no finding that Carlton, as the applicant for the licence, was prejudiced by the defaults in the giving of notice under s.74(1), but the Commissioner did find that the Glenroy sub-branch had altogether failed to explain its delay. There was evidence that there had been discussions about Carlton's application, involving representatives from the two sub-branches of the R.S.L. at which it had been said that the R.S.L. would be objecting. The Pascoe Vale sub-branch had lodged its application fairly shortly thereafter, it seems, but the Glenroy sub-branch did nothing for another ten months. No reason for that further delay was vouchsafed, save that "I may have been remiss" (according to Mr. Sherriff in cross-examination, the president of the Glenroy sub-branch). Remiss he was, and his default remained unexplained. The Commissioner declined to exercise the discretion to excuse the delay because, as he found, there was no satisfactory explanation at all for the default. Appellants' counsel contended that while it might be relevant to seek an explanation, it was certainly not relevant to require that that explanation be satisfactory before exercising the discretion to excuse: yet that cannot be so. If it is relevant to inquire at all about the delay (as plainly it is) it is surely relevant to consider whether the explanation offered is satisfactory. Here the Commission considered it was not and in so ruling it was plainly acting within jurisdiction. Nor did it act without jurisdiction in deciding, on that ground, not to excuse non-compliance under s.28(1)(e).

That leaves the question of error of law on the face of the record. Although counsel did not put the matter so plainly, it might be argued that, there having been no satisfactory explanation afforded for the delay by the Glenroy sub-branch, it was nonetheless not open to the Commissioner to refuse to exercise the discretion under s.28(1)(e) because he made no finding of prejudice to Carlton, as the applicant for the licence. It is clear enough in the reasons for decision of the Full Commission, and probably of the Commissioner also if it matters, that there was no finding of prejudice to Carlton and the question is whether that, in itself, bespeaks error of law. To my mind it does not. It cannot be denied that the reason for the applicant's delay is relevant when it is sought to have a discretion exercised to excuse default, and so too is prejudice to the party not in default: they are both important considerations. Here, there was no finding of prejudice and, indeed, the trial judge went so far as to say that "it does not seem that Carlton could show any prejudice". In that, I am not certain that the trial judge did not exceed his brief; for the question for his Honour was whether there was error below, and that depended upon the absence of any finding about prejudice.

In my opinion it cannot be said that the mere failure to make any finding about prejudice to Carlton establishes error of law. As Mr. Garde himself emphasised at one stage, statutory discretions are not properly confined or constrained by rules governing their exercise; if the discretion is untrammelled by the statute, then it must remain untrammelled save, perhaps, for guidelines of the sort described by the High Court in Norbis v. Norbis (1986) 161 C.L.R. 513. Here, counsel invites us to lay down the rule that, unless the default of the Glenroy sub-branch and the late filing of its notice under s.74(1) is found positively to have occasioned prejudice to Carlton, as the applicant for the licence, it was not open to the Commission (either at first instance or on review) to exercise the discretion under s.28 against the applicant for relief. I decline the invitation. Such a discretion is properly exercised on a consideration of all of the circumstances, including, among other things, whether there is a satisfactory explanation for the delay and whether there is prejudice to the other party not in default. The mere failure to mention prejudice does not mean that it was not considered. Plainly neither the Commissioner nor the Full Commission acted without jurisdiction and, in my view, neither is shown by the record as falling into error of law.

The argument for the appellants turned largely on the decision of the Full Court in Dix v. Crimes Compensation Commission [1993] 1 V.R. 297. There, the Court was concerned with s.31(2) of the Administrative Appeals Tribunal Act 1984 (Cth.) which empowered the tribunal to extend the time for the making of an application to it for review. The Court held that there was no pre-condition to the exercise of that discretion that the applicant should provide a satisfactory explanation for the delay. Here, the submission was that the failure of the Glenroy sub-branch to give a satisfactory explanation for its delay could not ground the refusal of an application for the exercise of discretion under s.28(1)(e), in the absence of any consideration by the Commissioner of other factors affecting the discretion, and in particular prejudice to Carlton as applicant for the licence. Obviously, that submission is not established simply by Dix; for if a failure to provide a satisfactory explanation is a relevant factor, then, in some circumstances at least, it can justify a refusal to exercise the discretion in favour of the applicant. What Dix said was that the failure to provide a satisfactory explanation must not be elevated into a "pre-condition" to the exercise of the discretion, thereby shutting out all other considerations. In this instance it is not shown that either Commissioner Horsfall or the Full Commission fell into that error. It is true that neither referred expressly to prejudice to Carlton, but if the absence of a satisfactory explanation is not determinative (as it is not), then neither is the absence of prejudice to the party not in default. The Commissioner spoke in general terms of a failure by the Glenroy sub-branch "to show cause", and I understand that to mean show cause why the discretion should be exercised in its favour. In the Full Commission, the majority saw no error in this and nor do I.

Finally, in this regard, counsel for the appellants contended that, if the transcript of evidence was examined, it was apparent that there was good reason for the lateness of the notice lodged by the Glenroy Branch under s.74(1). Mr. Garde pointed to the evidence that was led on behalf of the representors from the Uniting Church about the display of the notice on the subject premises, and the confusion about whether that notice was satisfactorily displayed so that it could be readily seen by those passing by. This evidence was not given on 3 October 1996 when the Commissioner first made his ruling excluding the Glenroy sub-branch; it became apparent only on 14 November 1996, when the representatives of the local church went into evidence in support of their own application to have their lateness under s.74(1)(a) excused under s.28(1)(e). That application succeeded, notwithstanding that the notice was filed even later than that of the Glenroy sub-branch. Mr. Garde sought to draw comfort from the evidence given on 14 November, arguing that the irregularities in Carlton's displaying the notice were such as to excuse also the Glenroy sub-branch's default.

The simple answer to this line of argument is that the transcript of this evidence is not, I think, available to counsel for this purpose. In ruling upon the application of the Glenroy sub-branch under s.28(1)(e), the Commissioner, and in his place the Full Commission, were both acting within jurisdiction, whatever the result of the application, and so only the record may be referred to in order to establish error. But if, contrary to that view, regard be had to the transcript of evidence, the argument still fails because the situation of the Uniting Church and that of the Glenroy sub-branch were relevantly different. In the one case, the deficiencies in Carlton's advertising of its application for a licence were taken to explain the late notice, and in the other they were not. The Commissioner was satisfied that the Glenroy sub-branch was late even after it was told of Carlton's application, contrasting the position of the Glenroy sub-branch with that of the Pascoe Vale sub-branch which gave its notice under s.74 some ten months earlier.

For these reasons, I see nothing in the ground taken about the exclusion of the Glenroy sub-branch. In my view, the appellants did not establish that on that basis certiorari should have gone.

Notice

That brings me to the next ground of complaint by the appellants: that there were irregularities in the notice displayed on the subject premises which could not be excused under s.28(1)(e) of the Act. There were two irregularities upon which the appellants focussed: first that the notice, when displayed, omitted altogether the terms and conditions to be attached to the licence sought by Carlton, if and when the licence was granted - being non-compliance with the requirements of s.72(6)(d). The second was an irregularity in the manner in which the notice was displayed on the subject premises, amounting to non-compliance, it was said, with the requirements of s.72(2) and (3): compare s.72(5). In neither respect was it open to the Commission, it was contended, to excuse non-compliance under s.28(1)(e).

This was first put on the basis that all of the requirements of s.72(1) were mandatory so that non-compliance could not be excused, no matter how minor the non-compliance might be. For this submission, reliance was placed upon Scurr v. Brisbane City Council (1973) 133 C.L.R. 242 to demonstrate the significance of notice in such a scheme as is found in the Liquor Control Act. That the giving of notice has such significance, cannot, I think, be gainsaid; but what distinguishes this case from Scurr is the presence of s.28. It may be that the requirements of s.72 are otherwise mandatory, but that must be read and understood as subject to the power of the Commission to excuse non-compliance which is found in s.28. When the two sections are taken together, it is only in a very limited and conditional sense that the requirements of s.72 can be called mandatory; non-compliance does not necessarily render null and void all that follows. Plainly, notwithstanding non-compliance the Commission may go on to consider whether to excuse non-compliance under s.28 and the validity of what follows thereafter will depend rather upon the exercise or not of that discretion than directly upon the terms of s.72. It is therefore, I think, misleading to regard s.72 as imposing requirements that are mandatory, or at least misleading if that term is understood (as commonly it is) to mean that all that follows must be null and void unless all the requirements of s.72 are met.

The second submission in this regard was that s.28 has no application unless there be first substantial compliance with the requirements of s.72, for without substantial compliance there is no "notice" in respect of which the power conferred upon the Commission by s.28 can be exercised. Section 28(1)(e), so far as relevant, refers to a "notice" and that means a notice which substantially complies with s.72. Here, there was no substantial compliance, it was said, and therefore there was nothing in respect of which the Commission might exercise the power conferred by s.28(1)(e).

In my opinion this submission, too, should be rejected; for I see no reason to limit s.28(1)(e) in the way suggested. Essentially the question of licensing has now been committed to an expert tribunal established under the Liquor Control Act: questions of notice and the like are pre-eminently matters for that Commission and, in conferring the power contained within s.28, the Legislature has confirmed that approach. It is true that the absence of terms and conditions, if considered alone, appears to be a serious departure from s.72(6) and, as at present advised, I agree with the Full Commission that that omission is not to be excused because of some "practice" that developed at the time within the Commission itself. The Act is specific enough: the notice must refer to the terms and conditions which are sought by the applicant for the licence and it is not enough for the notice simply to refer the reader to the application itself which can be inspected upon inquiry elsewhere. But it was for the Commission to decide whether that non-compliance could be excused or not; that is the jurisdiction conferred upon the Commission by s.28(1) and, in my opinion, the Commission cannot be held to have been acting without jurisdiction, however that matter was decided. Perhaps I would not myself have excused the non-compliance as the Commission did, although we were told by Mr. Houghton that the terms and conditions in question were in fact set out close by in notice of another, associated application. Be that as it may, when certiorari is sought the question is not how this Court would have decided the matter, but whether the Commission was acting without jurisdiction in excusing non-compliance or fell into error of law on the face of the record. In my view it cannot be said that the Commission in resolving the issue of non-compliance on application under s.28(1)(e) was acting outside its jurisdiction; that is one of tasks which is plainly committed to it by the Act. Nor, in my view, was there error of law on the face of the record because the Commission decided to excuse the non-compliance. It was a matter of discretion; neither the Commissioner nor the majority in the Full Commission acted upon the "practice" which had grown up and I see no error otherwise.

As for the irregularities in the manner of displaying the notice, the situation is simply a fortiori. As I have said, the question of notice was a matter for the Commission and whether or not the notice was properly displayed was essentially for the Commission, and not for the Court on review. Moreover, the evidence was "confusing and conflicting" (to use the phrase of the majority in the Full Commission) and, as appellants' counsel conceded, the Commissioner came to the view in the end that there had been no irregularity in the displaying of the notice by Carlton and the Full Commission agreed. That is simply a finding of fact: it bespeaks no error of law and, for reasons already given, there is no jurisdictional error involved. The Commission's decision on the matter was essentially one of those things committed by the Parliament for decision to the Commission.

Primary purpose

Section 48(2) of the Act provides that the Commission must not grant a club licence (the licence which was being sought by Carlton) unless the Commission is satisfied -

"(a)that the primary purpose of the business to be carried on on the licensed premises is the business of a club".

The appellants contended that the primary purpose of the business to be carried on on the subject premises, if Carlton was granted a licence, would not be "the business of a club", which exists primarily for members, but the business of a gaming venue for all the locals. Carlton put evidence before the Commission of other activities to be pursued on the subject premises and of the physical separation that would exist in the premises between those other activities and the gaming (the one upstairs and the other downstairs). The opponents argued that the pursuit of other activities would be far outweighed by the pursuit of gaming, and they relied upon projections of revenue to show that there would be a high reliance on gaming machine revenue. This argument was accepted by Commissioner Urquhart, in her dissenting reasons.

No doubt anticipating the submission on behalf of Carlton that the question of "primary purpose" under s.48(2)(a) was essentially a question of fact for the Commission and not the courts, the appellants focussed on s.48(4) which provides as follows:-

"(4)For the purposes of sub-section(2) the Commission must not have regard to the fact that authorised gaming visitors are or may be admitted to the licensed premises of a club in determining the primary purpose of the business to be carried on on the licensed premises."

In his reasons for decision, Commissioner Horsfall followed an earlier decision of his own in Mordialloc, holding that s.48(4) obliged him to disregard, not merely the likely presence of visitors on the subject premises, but also all revenue to be earned from such visitors, and whether that revenue was from gaming or from the sale of food and liquor. This, said the appellants, was error of law in that s.48(4), when properly construed, imposed no such requirement on the Commission. And as the Commissioner himself erred in that respect, so did the Full Commission, because (according to the appellants' Outline of Argument) the majority of the Full Commission had "agreed with the findings of Commissioner Horsfall".

In my opinion the argument fails at a number of points. Let it be assumed (and I do not decide) that Commissioner Horsfall was wrong in the construction he placed on s.48(4). Mr. Garde was quite unable to demonstrate the impact of that on the Commissioner's reasons for decision: for, despite what the Commissioner said about s.48(4), it is difficult to see how it had any effect on his actual decision. What fell to be excluded, according to the Commissioner, was revenue of all types from visitors. The Commissioner set out the revenue projections, expressed as percentages: 48 per cent from gaming and 51.3 per cent from bars and food. These figures can be derived from the table of revenue put in evidence by Carlton (and set out at AB 1100), that table showing estimated revenue for the first 12 months from all sources. Mr. Garde could not point to any evidence which would have enabled the Commissioner to subtract from those figures the estimated revenue from visitors: he could only suggest that revenue from visitors would be a "large percentage" of total revenue. But nor could he say what effect such a subtraction, when made in respect of all sources of income, would or might have had on the percentages relied upon by the Commissioner. In particular, he could not establish that gaming, as a percentage of total revenue, would then be more or less than 48 per cent.

It seems to me therefore that the appellants did not establish that the Commissioner, even if wrong in his construction of s.48(4), was misled on that account into a wrong decision. More importantly, even if the Commissioner fell into error in respect of s.48(4), there is no evidence to suggest that the Full Commission did too. The assertion that the majority of the Full Commission "agreed with the findings of Commissioner Horsfall" depended, it appeared, simply upon the reference in the reasons for decision to the same percentage figure for gaming, 48 per cent. But the majority made no reference to the construction placed by the Commission on s.48(4); they made no reference, for instance, to the Commissioner's own decision in Mordialloc. The figures relied upon by the Commission can be derived directly, as I have said, from the document put in evidence by Carlton (at AB 1100) and so far as I can tell the Full Commission was proceeding upon its own review of that evidence, unaffected by Commissioner Horsfall's particular view of the requirements of s.48(4). Furthermore, while revenue from gaming as a percentage of total revenue was regarded as relevant to the question of "primary purpose" raised by s.48(2)(a), it was, after all, only one of the relevant considerations. In the Full Commission the majority held that on all of the evidence the "primary purpose" was the business of a club. As Carlton submitted, this was a question of fact and in my opinion the appellants failed altogether to demonstrate any error of law on the part of the Full Commission.

If it matters, I should have thought that the appellants were here confined to demonstrating error of law on the face of the record; for I find it difficult to see how the Commission, when proceeding to determine a fact made relevant by s.48(2)(a) to its function in granting or refusing a club licence, could be said to be acting outside its jurisdiction. It is arguable, too, that as in the course of determining "primary purpose" s.48(2)(a) it must apply s.48(4) (whatever that subsection means) the Commission is also given by Parliament the task of interpreting s.48(4) (at least in the first instance) for the purpose of applying it in much the same fashion as a court of law. If so, it would not be jurisdictional error for the Commission to err in the construction of s.48(4), at least if the view it took was one that was reasonably open. The appellants would have to demonstrate error of law on the face of the record, or fail. I say that not because I think that that would necessarily be very difficult for a party genuinely prejudiced by a wrong construction placed by the Commission upon s.48(4) (although error was not established on this occasion), but because of the great width of the submission put to us, that all errors alleged here went to jurisdiction.

Community interest

The next ground argued by the appellants focussed on "community interest". Here, said the appellants, Commissioner Horsfall had put aside as irrelevant what had been put to him, by those opposing the grant of licence, about the adverse effects of gambling on the community. The Commissioner said in his reasons for decision that such considerations went rather to the wisdom of the Legislature in providing for gambling venues and, as such, were not relevant to his consideration of an application for a liquor licence, albeit that the liquor licence was a prelude to an application for a gambling licence. This, said the appellants, was altogether wrong, but again the Full Commission did not take the view of the Commissioner. Thus the majority said, for instance:-

"We would not have been quite so dogmatic in asserting that such matters are not for the Commission to consider ....".

So once again, if it be the fact that Commissioner Horsfall fell into error in regarding "such matters" as irrelevant, it cannot be said that the Full Commission fell into that error too.

The view of the Full Commission was made quite plain in the reasons of the majority. They said:-

"Accordingly an argument as to any possible adverse effects of gaming if it is raised must be supported by evidence which is specific to the area around the premises in question. It is simply pointless to come before the Commission and in effect to argue that the Government obviously got it wrong when it permitted poker machines in Victoria and that the Commission ought to do all that it can to ensure that gaming machines are not allowed to proliferate or at the very least are confined to premises that are currently licensed."

They went on to say that the evidence which the Commissioner heard "does not in our view come close" to what is needed if the case of the opponents was to be established and that "the evidence called was not sufficient to show that there was any adverse effect flowing directly from gaming". As Mr. Houghton said, the question of adverse effect was fully canvassed both before the Commissioner and again, on the evidence before the Commissioner, before the Full Commission. It was not that the matter was not canvassed; the point failed for want of adequate evidence.

Obviously, the question of community interest was a matter of fact to be determined by the Commission and thus far there can be no ground for relief in the nature of certiorari. But the appellants contended that the Full Commission fell into error in two respects, which were linked: first that the Act required the Full Commission, before granting a licence, to make a finding that granting the licence was in the community interest, and this it did not do: it held only that the opposite was not established. Secondly, the Commission had placed an onus on the opponents to demonstrate that granting the licence was not in the community interest, and that was contrary to law; for the onus at all times lay on the applicant for the licence to establish everything that was needful for its granting.

The difficulty with these arguments lies in the Act itself. The Act does not in terms empower the Commission to grant the licence sought in this case by Carlton only if satisfied (inter alia) that the granting of the licence would be in the community interest: contrast s.48(2)(a). Quite the contrary. Section 74 is the section which allows for representations as to community interest, and it was under this provision that application was made on behalf of both the Pascoe Vale sub-branch and the Glenroy sub-branch of the R.S.L. to be admitted as representors on the hearing of Carlton's application. Section 74(7) then provides:

"(7)If, under this section, the Commission determines that the grant, variation, transfer or removal of a licence or extended hours permit would not be in the interest of the community, the Commission must refuse the application."

It cannot be said that this provision was not observed by the Commission, both at first instance and on review under s.105. It requires only that the Commission refuse the application if it determines that to grant the application would not be in the interest of the community, and the Commission made plain its opinion that the evidence put before the Commissioner did not establish that fact. In my opinion, nothing required the Commission to go further and withhold the grant of the licence unless positively satisfied that to grant the licence would be in the interests of the community.

Appellants' counsel sought to rest the argument on the very general provisions made by ss.27 and 33(3), but in my opinion s.74(7) is more to the point. The appellants submitted that s.74(7) related only to a discrete application for a determination made under s.74(3) (as to which see also s.74(4) and (5)), but I see no reason to limit the operation of s.74(7) in that way. The argument that there was error of law in respect of "community interest" therefore fails. Again I see no basis for supposing jurisdictional error.

Conclusion

On these appeals, the appellants abandoned that ground in the orders for review which referred to the Full Commission's granting exemptions under s.58(1)(a) (a ground that was apparently directed, at least in part, to the granting of an exemption in relation to the articles of association bearing upon the election of the committee of Carlton). With that ground abandoned, it follows that for the reasons I have given the appellants failed to establish any of the grounds relied upon in support of the application for relief under the Administrative Law Act. In short, they failed to establish any jurisdictional error, any want of procedural fairness, or any error of law on the face of the record, or alternatively any such defect or error sufficient to sustain the grant of relief in the nature of certiorari.

In conclusion I say again that I am not satisfied that any of the errors described in the orders nisi for review amounted to jurisdictional error; the first, the exclusion of the Glenroy sub-branch, may have involved an alleged want of procedural fairness but, for the rest, the grounds taken asserted errors of law on the face of the record. In the course of their submissions counsel for the appellants referred frequently to the reasons for decision of Commissioner Horsfall, contending that the trial judge fell into error by not examining those reasons. But in the light of Craig, any reference to the reasons for decision for the purpose of establishing error of law on the face of the record must depend upon s.10 of the Administrative Law Act and s.10, in referring to the "reasons for a decision" means, I think, the reasons for the decision under challenge - that is under challenge by means of the order for review obtained under the Administrative Law Act. In arguing the contrary Mr. Garde submitted that the decision of Commissioner Horsfall was itself within the definition of "decision" in s.2 of that Act, but that is not to the point when construing s.10. In this instance, the application for review under the Administrative Law Act was directed to the reasons for decision of the Full Commission. In my view s.10 refers

then to the reasons for decision of the Full Commission.

Of course where the decision under review by virtue of the order for review is itself the decision of a reviewing body, it might be necessary on occasion to refer to the reasons of the "subordinate" body, but that will be for the purpose only of explaining or understanding the reasons for decision which are themselves referred to in s.10. Here the reference to Commissioner Horsfall's reasons went well beyond that: for example, in relation to s.48(4) the reasons for decision of the Commissioner were referred to for the purpose of constructing some supposed error by the Full Commission. In the course of what I have written I have dealt with the argument as it was put to us in order to demonstrate that the attempt to establish error fails in any event, but I must not be taken thereby to have accepted that the reference to the Commissioner's reasons for decision was correct in that regard. As at present advised, it seems to me that it was not, but as all the grounds taken by the appellants fail, in my opinion, even on the arguments advanced, I need say no more about it.

In my view, subject to an order for the consolidation of the two appeals and amendment of the title to the consolidated proceeding, these appeals should be dismissed.

CHARLES, J.A.:

I agree with Phillips, J.A.

BUCHANAN, J.A.:

I agree that the appeals once consolidated should be dismissed for the reasons stated by Phillips, J.A.

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[1999] VSCA 37

15 April 1999