RSL (Vic Branch) v Liquor Licensing Com

[1999] HCATrans 467

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M49 of 1999

B e t w e e n -

THE RETURNED & SERVICES LEAGUE OF AUSTRALIA (VICTORIA BRANCH) INC.

Applicant

and

LIQUOR LICENSING COMMISSION

First Respondent

THE CARLTON CRICKET AND FOOTBALL SOCIAL CLUB LIMITED

Second Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 2.36 PM

Copyright in the High Court of Australia

MR D. De MARCHI:   If the Court pleases, I appear for the applicant.  (instructed by De Marchi & Associates)

MR W.T. HOUGHTON, QC:   If the Court pleases, I appear with my learned friend, MR J.F.M. LARKINS, for the respondent.  (instructed by Baker & McKenzie)

GLEESON CJ:   I have a certificate from the Deputy Registrar to the effect that she has been informed by the solicitor to the Liquor Licensing Commission that the Liquor Licensing Commission does not wish to be represented at the hearing of this application and will abide by any decision of the Court.  Yes, Mr De Marchi.

MR De MARCHI:   Thank you, your Honour.  The special leave points that this application raises are what constitutes jurisdictional error and does it differ between courts and administrative tribunals.

The ancillary point to that is what constitutes the record as far as administrative tribunals and judicial review, and the other points are contained on page 189 of the application book at paragraphs 5 and 6.  I propose to concentrate on the jurisdictional error point.

It is submitted that there is need for this Court to clarify whether there is indeed a distinction to be applied between courts of law in administrative tribunals when a court is reviewing jurisdictional error.

While in England the distinction between courts and administrative tribunals has been removed and both are subject to rectification of jurisdictional error, including error of law within jurisdiction.  In Australia there remains a distinction.  This distinction was emphasised in Craig and Craig accepted, we say, at least in the absence of clear, contrary intention in the legislation the position of the administrative tribunals as outlined in the English cases from Anisminic onwards.

However, the current position has been made uncertain, we say, by the decision of the Court of Appeal of the Supreme Court of Victoria in the RSL Case earlier this year.  If I could first of all take the Court to page 179 of Craig.  The Court, at point 2 of the page said:

At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law.

The Court also endorsed with authority the point made by Lord Diplock in In re Racial Communications Ltd at point 3 on the same page. 

Moreover, the English position prevailed with respect to administrative tribunals, with greater force and effect in Australia, said the Court in Craig, because of the constitutional doctrine of the separation of judicial and executive power which may, indeed, preclude legislative confidence to confer judicial power on administrative tribunals.  At point 6 the Court said:

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.

GLEESON CJ:   Where in the reasoning of the Court of Appeal do we find them saying something contrary to that?

MR De MARCHI:   We find at page 145 of the application book that the Court of Appeal clearly says at paragraph 17:

that in the final analysis what matters may be scarcely different in kind as between court and tribunal, though emphases may vary.

Then the Court goes on to discuss the dicta of Lord Diplock in In re Racal and says at paragraph 23 of the page:

Though that view was expressly rejected in Craig –

we say that is quite wrong.  That view was in fact accepted 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.

GLEESON CJ:   The passage you have just read us from Craig does not support the proposition that any error of law made by an administrative tribunal must go to jurisdiction.  It says the contrary.  It says that Parliament may by clear words in legislation reveal an intendment to the contrary of that.

MR De MARCHI:   Yes, but there has to be a clear and unequivocal legislative provision in order for that position to apply, with respect, your Honour.

What the Full Court of the Court of Appeal is saying is that there is a gloss on the wording in Craig, and that in fact the wording of the Court where it says:

and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.

Is a qualification on what the Court had intended.  We say that that cannot be correct.  It does not sit with what the Court was discussing.  It does not sit with what the Court was discussing, it does not sit with the discussion in Anisminic that the Court was making prior to making that dicta, and of course it does not sit with the Court a clear qualification that the situation in Australia a fortiori was different because of the division between administrative tribunals and courts of law.

In essence, what the Court of Appeal has done has removed the law in as far as jurisdictional error is concerned back to the time it was prior to Anisminic.

CALLINAN J:   What precisely do you say are the errors of law anyway?

MR De MARCHI:   Beg your pardon, your Honour?

CALLINAN J:   What precisely do you say are the errors that were made anyway?

MR De MARCHI:   The errors that were made by whom, your Honour?

CALLINAN J:   By the tribunal.

MR De MARCHI:   The errors that were made by the tribunal was it failed to accept a late representor, the Glenroy RSL, and yet accepted a later representor that appeared before the tribunal following the earlier one.

CALLINAN J:   They were both out of time, were they not?

MR De MARCHI:   They were both out of time, and the second person appeared at the hearing.

CALLINAN J:   So the tribunal was not obliged to accept either of them.

MR De MARCHI:   The tribunal had a discretion ‑ ‑ ‑

CALLINAN J:   But it was not obliged to accept either of them.

MR De MARCHI: We say that it was if it had applied its discretion according to the requirement of section 28 of the Liquor Control Act.

CALLINAN J:   In what respect did it not act in accordance with ‑ ‑ ‑

MR De MARCHI:   It did not act according to its clear unfettered discretion by requiring that the representor provide a reason for its absence.

CALLINAN J:   Does the section say that?

MR De MARCHI: Section 28 of the Act, as I understand it, confers that ‑ ‑ ‑

CALLINAN J:   What does it say?  Where do I find that material, the section?  Is it in the statutory material?

MR De MARCHI: In the material, it is contained in section 28 of the Liquor Control Act.

GLEESON CJ:   The section headed “Powers of Commission”, is that right?

MR De MARCHI: Section 28, your Honour?

GLEESON CJ:   Yes, it is the section headed “Powers of Commission”, is that right?

MR De MARCHI:   Yes.  There are pretty broad and extensive powers to allow ‑ ‑ ‑

GLEESON CJ:   Yes, but which is the provision that was contravened?  Where can we read the statutory provision that was contravened?

MR De MARCHI:   Your Honour, there was not a contravention as such.  What we are saying is that there was a failure to exercise a discretion correctly at common law.  Where the party was late, there was a discretion to accept the party ‑ ‑ ‑

GLEESON CJ:   And a discretion to reject the party.

MR De MARCHI:   Presumably, yes; there is that broad discretion to do both, but there was no requirement at common law for that party to provide a reason.  Of course, what the Court of Appeal did, not only was the party required to provide a reason, but it had to be a good reason in order for the party to be admitted.

CALLINAN J:   There is no statutory provision which in terms requires anything of the kind that you have just said.  Because, if there is, I want to be referred to it.

MR De MARCHI:   No, there is not, your Honour.  It is a common law interpretation, we say, of the case instead.

CALLINAN J:   Let me ask you this question also:  in the Court of Appeal the matter proceeded with only one prosecutor, or one party, is that right?  It was The Returned & Services League of Australia (Victoria Branch) Inc, is that correct?

MR De MARCHI:   It appeared with two sub‑branches, but essentially under the umbrella of the Victorian branch.

CALLINAN J:   Were the sub‑branches legal personalities, and what is the section that enables people to make submissions, or objections, or representations?  Under what section?

MR De MARCHI:   That is section 74(1) of the Act.

CALLINAN J:   Section 74.

MR De MARCHI:   I do not believe that is among the material you have unless my friend has provided that material.

GLEESON CJ:   Yes, we have that.  It is headed “Representations as to community interest”.

MR De MARCHI:   Yes, that is so. 

CALLINAN J:   I just wondered, perhaps the point was not taken, but whether the Glenroy branch was a legal personality anyway, capable of making a representation under the Act.

MR De MARCHI:   That is the point that the Court of Appeal to some extent based its decision on leave rejection.

CALLINAN J:   That is right, is it not?

MR De MARCHI:   We say that it is not right, your Honour, because we had an immediate sub‑branch that was opposite the proposed development.

CALLINAN J:   ……personality, was it?  It was not incorporated, it is not a legal personality under any statute.  Is that right?

MR De MARCHI:   There could be some debate on that, your Honour, in that the Club, of course, has its own separate personality, and although it comes within the umbrella there is a trust deed that governs the provision of a sub‑branch; this particular sub‑branch at any rate.

We say that the Court of Appeal introduced criteria that was not imposed on the tribunal by the legislation.  First, that there was no explanation and there had to be an explanation.  That was not contained in the legislation.  There is no requirement for an explanation.  Secondly, that the explanation had to be satisfied before the discretion to excuse the….could be granted.

However, we say that the major and basic error that was committed by the Court of Appeal was to disregard the distinction that has now clearly been made by this Court in Craig’s Case; that, in fact, when dealing with administrative tribunals’ jurisdictional error, relief in regard to whether there is error within jurisdiction as well as conferring jurisdiction.  That, we say, is now well established in England and we say should be the case here.

The decision of the Court of Appeal has been followed in a case of Hartley v O’Loughlin.  His Honour Mr Justice Teague applied the narrow jurisdiction test of the Court of Appeal in dealing with an application for certiorari.  This was an application to quash an administrative decision, the dismissal of a member of the police force for conduct unbecoming.  At page 13 of that particular decision the court was influenced by the dicta of the Court of Appeal.  It said that the court in the RSL Case had pointed out:

that it is not all errors of the type listed that amount to jurisdictional error.

The same gloss that it had applied on the decision in Craig and in fact:

noted that the extent of the jurisdiction to be examined did not depend on classifying the body either as a court or a tribunal, but on examining the statute that created the body, of whatever nature it may be.

So the Full Court of Appeal’s decision is now being followed by the Supreme Court of Victoria, and we say ‑ ‑ ‑

GLEESON CJ:   Mr De Marchi, you are erecting a very elaborate forensic edifice concerning the significance of errors of law by administrative tribunals, but I am still unable to see the foundation.  What was the error of law made by the tribunal?  You say that they wrongly required somebody who was out of time, is that right?

MR De MARCHI:   That was one error of law.

GLEESON CJ:   To explain to them why they were out of time before they would exercise the discretion to relieve them from the consequences of being out of time.  Is that right?

MR De MARCHI:   Yes, that was one error of law.

GLEESON CJ:   Why is that an error of law?  It sounds like common sense to me.

CALLINAN J:   And a fairly familiar requirement imposed by courts when people seek indulgences of them.

MR De MARCHI:   We can accept that point, your Honour, but that was one point and that was a point that the Court of Appeal said went to jurisdictional error.  But, there were other points that the court said could only be rectified if they were on the record of the court, and in fact discharged the order nisi, or dismissed the appeal, which had discharged the order nisi by Mr Justice O’Bryan.

CALLINAN J:   Was there any other error of a kind which you say is an error of law?  We have identified one that you say was an error of law.  What were the other errors of law?  Do not worry about how the Court of Appeal ‑ ‑ ‑

MR De MARCHI:   Yes, they were contained on the appeal application book at page 91, your Honour, the grounds of the order nisi, which was granted by Master Kings, that

the Commission was wrong in law in failing to require the Applicant to readvertise…..Section 72 of the Liquor Control Act 1987.

CALLINAN J:   You do not say anything about that in your summary of argument to this Court here.

MR De MARCHI:   We do, your Honour, it is contained in ‑ ‑ ‑

CALLINAN J:   Where do you say that then in your summary of argument?

MR De MARCHI:   It is contained in the summary at page 196 paragraph 20 of the application book.  We say:

The Court of Appeal rejected the Applicant’s submission that the notice requirements of section 72(6)(d) of the Act were mandatory -

in nature -

and held that non‑compliance could be excused under section 28(1)(e). The Court distinguished Scurr v Brisbane City Council –

We say that was a clear error within jurisdiction that was committed by the full Liquor Licensing Commission, and which was not corrected by the court in the first instance, and of course was not corrected because of the approach that the Court of Appeal took on the question of jurisdictional error.

The other items on page 91 are also relevant.  The community aspects were not taken into account but the greater arm that was carried out by failure to take those considerations into account was the fact that they were not regarded as being jurisdictional error pursuant to the current list established dicta of the court.  We say the Court of Appeal’s decision has tremendous potential for altering and, in fact, has already altered the way that the jurisdictional error is being viewed in the courts in Victoria, and obviously will be viewed in other courts as well, and one that requires, we submit, the intervention of this Court in relation to that particular error.

The case of Page of course was heard after Craig, so that the law in England is continuing to advance along those particular lines, and we submit that it may even be opportune for the Court to examine whether, in fact, a similar approach should not be taken in relation to jurisdictional error on parts of courts, as well as administrative tribunals.  It is certainly a point that we say ought to be examined by the Court and ruled upon by this Court.

GLEESON CJ:   Thank you, Mr De Marchi.  We do not need to hear you, Mr Houghton.

The Court is of the view that there are insufficient prospects of disturbing the orders made by the Court of Appeal to warrant a grant of special leave to appeal in this case, and the application is dismissed with costs.

MR HOUGHTON:   If the Court pleases.

AT 2.59 PM THE MATTER WAS CONCLUDED