Saffron v Licensing Court of NSW

[2004] NSWSC 570

CITATION:	Saffron v Licensing Court of NSW & Anor [2004] NSWSC 570
HEARING DATE(S):	7 & 9 June 2004
JUDGMENT DATE:	30 June 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Sperling J at 1
DECISION:	(1) Proceedings remitted to the Licensing Court of New South Wales for determination of the question of the costs of the proceedings in that court; (2) The second defendant to pay the costs of the plaintiff in the proceedings in this court incurred after 25 March 2004.
CATCHWORDS:	Costs - appeal from Licensing Court of NSW - whether to remit the question of the costs of the proceedings in that court to that court for decision
LEGISLATION CITED:	Liquor Act 1982, s16, s146, s148 Supreme Court Act 1970, s76 Supreme Court Rules 1970, Pt52A r11
CASES CITED:	Cowley v Smith, Poulos v Smith [2003] NSWSC 1251 Emery v Binnie (NSWSC, 4 August 1995, unreported) Hindmarsh v Allogia [1977] 2 NSWLR 599 Wallace v Bourke (NSWSC, 5 June 1992, unreported)
PARTIES :	Abraham Gilbert Saffron Licensing Court of New South Wales The Commissioner of Police
FILE NUMBER(S):	SC 10208/03
COUNSEL:	Mr R Jankowski for the Plaintiff No appearance for the First Defendant Mr T Lynch for the Second Defendant
SOLICITORS:	Back Schwartz Vaughan Solicitors & Attorneys for the Plaintiff No appearance for the First Defendant Crown Solicitor for the Second Defendant

LOWER COURTJURISDICTION:	Licensing Court of NSW
LOWER COURT FILE NUMBER(S):	177730/00
LOWER COURT JUDICIAL OFFICER :	Collins Lic M / Full Bench

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Wednesday, 30 June 2004


10208/03 Abraham Gilbert Saffron v Licensing Court of New South Wales & Anor

Judgment

1 His Honour: The plaintiff, Mr A G Saffron, applied to the Licensing Court of New South Wales for the grant of a wholesale off-licence. On 12 March 2001, Collins Lic M refused the application, without making any order as to costs. On 18 December 2002, the Full Bench of the Licensing Court dismissed an appeal and reserved the question of costs.

2 Pursuant to s148 of the Liquor Act 1982, an appeal to the Full Bench of the Licensing Court is a rehearing de novo. Thus, such an appeal is an exercise of original jurisdiction of the Licensing Court and, where an appeal is allowed, constitutes a determination of the original application which replaces the determination at first instance: Hindmarsh v Allogia [1977] 2 NSWLR 599.

3 The plaintiff appealed to this court joining the Licensing Court of New South Wales and the Commissioner of Police as defendants. The Licensing Court entered the usual submitting appearance.

4 On 25 March 2004, orders were made by consent by Bell J dismissing the appeal to this court and reserving the question of costs.

5 On 9 June 2004, the proceedings came before me in relation to the question of costs. Mr Jankowski of Counsel appeared for the plaintiff and Mr Lynch of Counsel appeared for the second defendant.

6 Section 146(2) of the Liquor Act provides, so far as is material, that, on determination of an appeal to this court, this court is to remit the matter to the Licensing Court for determination or make such other order as it thinks fit. Accordingly, in relation to the present application, this court has power to determine the question of costs in relation to the proceedings in the Licensing Court or to remit the matter to the Full Bench of the Licensing Court for determination of that question with or without a determination by this court as to the way in which the Licensing Court should approach the question.

7 It is common ground that, there having been no hearing on the merits in this court, each party should pay its own costs of the appeal up to 25 March 2004.

8 Mr Jankowski sought an order that the matter be remitted to the Full Bench of the Licensing Court for determination of the question of the costs of the proceedings in the Licensing Court.

9 Mr Lynch opposed that course and sought an order by this court that the plaintiff pay the second defendant’s costs of the proceedings in the Licensing Court including the proceedings before Collins Lic M. Alternatively, Mr Lynch submitted that, if the matter was remitted to the Licensing Court, that should be done with a determination that the costs of the proceedings before Mr Collins Lic M were payable by the plaintiff.

10 Mr Jankowski submitted that, if the question of costs of the proceedings in the Licensing Court were to be determined by this court, the second defendant’s application for an order for costs in that regard should be dismissed. Mr Jankowski further submitted that, if the matter were remitted to the Licensing Court (his preferred option), that should be without any further determination by this court.

11 Section 76 of the Supreme Court Act 1970 provides that the costs of or incidental to proceedings in the Court are in the discretion of the Court, including, in the case of an appeal, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal.

12 There is an important distinction between the rules of this court relating to costs and the corresponding provision applicable to the Licensing Court. Part 52A rule 11 of the Supreme Court Rules provides that (subject to special cases not presently relevant) costs are to follow the event, unless it appears to the Court that some other order should be made. By contrast, s16 of the Liquor Act provides that (subject to the special circumstances specified) the costs of proceedings in the Licensing Court shall be paid by or apportioned between the parties in such manner as the Court in its discretion may order and that, in default of any such order, the costs follow the event.

13 Accordingly, the prima facie order in relation to the costs of proceedings in the Supreme Court is that costs follow the event. That is the order made unless there are reasons for ordering otherwise. By contrast, there is no such prima facie rule in relation to the costs of proceedings in the Licensing Court: Wallace v Bourke (Finlay J, 5 June 1992, unreported); Emery v Binnie (Grove J, 4 August 1995, unreported); Cowley v Smith, Poulos v Smith [2003] NSWSC 1251.

14 There are two contentious matters relating to the costs of proceedings in the Licensing Court. First, as to the costs of the proceedings before Collins Lic M, Mr Jankowski says that there is no power in this court or in the Full Bench of the Licensing Court to make an order in relation to those costs, no such application having been made to Collins Lic M at the time and no order having been made by him reserving such costs. Mr Lynch says, on the other hand, that, whilst the dismissal of the plaintiff’s original application by the Full Bench of the Licensing Court replaces the determination of Collins Lic M, thereby removing any entitlement to costs following the “event” at first instance, the Full Bench of the Licensing Court has power to make an order in relation to those costs as part of an order in relation to the costs of the proceedings as a whole.

15 Secondly, Mr Lynch says that the second defendant is also entitled to an order for costs of the proceedings before the Full Bench of the Licensing Court on the merits of that question. Mr Jankowski says that such an order should not be made on the merits of the question.

16 Mr Lynch submits that, having regard to the existence of these issues, this court should decide the question of the costs of the proceedings in the Licensing Court in order to avoid the prospect of additional costs being incurred in an appeal to this court from the determination of that question by the Full Bench of the Licensing Court.

17 I propose to remit the matter to the Full Bench of the Licensing Court for the following reasons:

(a) The question of whether the Full Bench of the Licensing Court has power to make an order in relation to the costs of the proceedings before Collins Lic M is one involving the procedures of the Licensing Court. From the standpoint of the Licensing Court, that court should have the opportunity of deciding such a matter so that, if there is an appeal, the Licensing Court will have had the opportunity of proffering its own opinion, for consideration by the appellate court, as to how its procedures are regulated in the relevant respect.

(b) The Full Bench of the Licensing Court is in a better position than this court to make a determination on the merits of the question of the costs of the proceedings in the Licensing Court. It is familiar with the evidence and issues in the proceedings. Furthermore, as a specialist court, it is familiar with the considerations which come to bear on an application for the costs of proceedings of this kind.

(c) As for avoiding the costs of an appeal, there may be no appeal. The loser may be content to accept the decision of the Full Bench when the reasons for decision are studied.

(d) If there is an appeal, this court should have the benefit of the reasons for decision of the Licensing Court. It is a specialist tribunal with special experience in relation to proceedings and issues of the relevant kind.

18 For these reasons, the matter should be remitted to the Licensing Court for determination of the question of costs of the proceedings, without any further determination by this court.

19 The plaintiff having succeeded in its argument on the matter left to be decided in this court, the second defendant should pay the plaintiff’s costs of the proceedings in this court incurred after 25 March 2004.

20 I make the following orders:

(1) Proceedings remitted to the Licensing Court of New South Wales for determination of the question of the costs of the proceedings in that court.

(2) The second defendant to pay the costs of the plaintiff in the proceedings in this court incurred after 25 March 2004.

-oOo-

Last Modified: 07/02/2004