Smith v Director of Liquor and Gaming

[2009] NSWSC 837

CITATION:	Smith v Director of Liquor and Gaming [2009] NSWSC 837
HEARING DATE(S):	30 June 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
EX TEMPORE JUDGMENT DATE:	30 June 2009
DECISION:	(1) The Director of Liquor and Gaming by himself, his servants and his agents not finalise the conference presently scheduled for 2 July 2009 under s 80 of the Liquor Act 2007 New South Wales until a date after the later of: (a) 12 August 2009; and (b) four weeks after the production of the material, being source material for summaries relied upon in the proceedings, to the extent such material is referred to in the letters from Harris Wheeler to the defendant dated 17 June 2009 and 25 June 2009. (2) The defendant pay the plaintiffs’ costs of and incidental to the proceedings as agreed or assessed.
CATCHWORDS:	ADMINISTRATIVE LAW – Liquor licence complaints – Liquor Act 2007 – procedural fairness – failure to give adequate opportunity to prepare case – failure to provide documents sought in order to test case of complainant – insufficient time to prepare case – limited orders made - LIQUOR AND GAMING – complaint about disturbances – Director General's Conference – legislation considered – failure to provide procedural fairness by providing insufficient time to prepare and failing to provide documents upon a summary of which the complainants rely – limited orders made
LEGISLATION CITED:	Liquor Act 2007
CATEGORY:	Principal judgment
CASES CITED:	Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14 Sullivan v The Department of Transport (1978) 20 ALR 323
PARTIES:	Stewart John Smith (First Plaintiff) Gilingarra Pty Ltd (Second Plaintiff) Buster William Merick Trueman-Browne (Third Plaintiff) Davisea Pty Ltd (Fourth Plaintiff) Director of Liquor and Gaming (Defendant)
FILE NUMBER(S):	SC 30044/2009
COUNSEL:	M Leeming SC / J Taylor (Plaintiffs) P Singleton / M Nagy (Defendant)
SOLICITORS:	Harris Wheeler Lawyers (Plaintiffs) Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ROTHMAN J

30 June 2009

30044/2009 Stewart John Smith & Ors v Director of Liquor and Gaming

EX TEMPORE JUDGMENT

1 HIS HONOUR: The Court must deal with an application commenced by summons for orders in effect staying a conference ordered by the Director of Liquor and Gaming in relation to complaints received as to disturbances in the neighbourhood in and around Newcastle and the result of which conference, if it were to proceed, may be to impose conditions on the plaintiff’s liquor licence. Those complaints relate to or are sought to be resolved by conditions imposed upon seven hotels, two of whom bring the proceedings currently before the Court.

2 The making of complaints and the directions that can be made are dealt with by the Liquor Act 2007 (hereinafter referred to as “the Act”), as amended. Section 79 of the Act deals with the capacity to make a complaint. Section 80 provides the Director with the power or jurisdiction to convene a conference to hear submissions relating to the complaint. I set out the terms of s 79 and s 80 of the Act:

“79 Making of complaint
(1) A person may complain to the Director that the quiet and good order of the neighbourhood of licensed premises are being unduly disturbed because of:
(a) the manner in which the business of the licensed premises is conducted, or
(b) the behaviour of persons after they leave the licensed premises (including, but not limited to, the incidence of anti-social behaviour or alcohol-related violence).
(2) Such a complaint must be in writing and be made or verified by statutory declaration.
(3) A complaint under this section may only be made by any of the following persons (referred to in this Division as the complainant):
(a) a person authorised in writing by 3 or more persons residing in the neighbourhood of the licensed premises or a person who is such a resident and is authorised in writing by 2 or more other such residents,
(b) the Commissioner of Police,
(c) a person authorised by the local consent authority in relation to the licensed premises,
(d) a person who satisfies the Director that his or her interests, financial or other, are adversely affected by the undue disturbance to which the person’s complaint relates.
(4) A complaint may relate to more than one licensed premises.
(5) In the application of this Division to an on-premises licence that relates to a catering service:
(a) a reference to licensed premises does not include private domestic premises, and
(b) a reference to the business of the licensed premises is a reference to the business of providing catering services on licensed premises (other than private domestic premises) under the licence.”


“80 Director may convene conference
(1) If the Director receives a complaint under this Division, the Director may convene a conference to hear submissions relating to the complaint.
(2) A conference may relate to more than one complaint.
(3) A conference convened in relation to licensed premises the subject of a complaint may be extended to include any other licensed premises if the Director is satisfied:
(a) that the evidence given in support of the complaint would support a complaint against the other licensed premises, or
(b) that, assuming that the complaint is shown to be justified, action taken in relation to the licensed premises the subject of the complaint will be ineffective unless similar action is taken in relation to the other licensed premises.
(4) Any licensed premises to which a conference is extended as referred to in subsection (3) is, for the purposes of this Division, taken to be the subject of a complaint under this Division.
(5) Notice of the time and place of the conference is to be given to all complainants and the licensee or licensees as specified by the Director.
(6) The conference is to be presided over by the Director and the procedure at the conference is to be determined by the Director.”

3 The conference in question relates to more than one complaint, as is permissible under s 80(2) of the Act, and s 81 sets out the steps that may be taken by the Director, if the Director were to consider that the complaint has some merit or warrants steps to be taken. Section 81(1) of the Act requires the Director to give each complainant and the licensee, if present, a reasonable opportunity to be heard in relation to a complaint under the Division. I set out the terms of s 81(1) of the Act:

“81 Decision by Director in relation to complaint
(1) The Director may, after giving each complainant present and the licensee (if present) a reasonable opportunity to be heard in relation to a complaint under this Division:
(a) impose a condition on the licence concerned, or
(b) adjourn the conference subject to implementation and continuation of undertakings given by the licensee, or
(c) issue a warning to the licensee, or
(d) take no action.”

4 The current matter was first the subject of a complaint by a person described in s 79(3)(a) on or about 26 February 2009 and the Police, being the Commissioner of Police described in paragraph (b) of that subsection, complained on 13 May 2009. On 2 June 2009, the plaintiffs in these proceedings and the other hotel proprietors or licensees were given notice of the conference to be held on 2 July 2009, i.e. the plaintiff was given, one month’s notice. At the time, on 2 June 2009, the plaintiffs were provided with significant material relating to the disturbances that were said to have occurred or been the subject of complaint in or around the area in the vicinity of the seven hotels.

5 On 17 June 2009, solicitors representing the plaintiffs in these proceedings wrote to the Director seeking an adjournment and alleging amongst other things that they had insufficient time in which to prepare the proceedings. That letter, which is Annexure E to the Affidavit of Ian Robert Brown and also Annexure D to the Affidavit of Micah Jenkins of 26 June 2009, sets out essentially the issues that are raised in these proceedings.

6 Those complaints fall into two categories. Firstly, the plaintiff alleges an entitlement to see all of the material upon which the New South Wales Police will rely at the 2 July conference; and secondly, the plaintiff seeks an adjournment for the purpose of preparing its answer to that material, including the provision of expert evidence as to the nature of the disturbance and steps that may be taken to alleviate the noise, or ameliorate any such disturbance, if it were to occur.

7 Mr Jenkins gave evidence in the proceedings and was cross-examined. He gave evidence as to the time taken to prepare the material and the inability to prepare the material in time for this Thursday. While there was some cross-examination in relation to the time spent by Mr Jenkins, there was no serious challenge to the proposition that there had been insufficient time to prepare all of the material.

8 There is little doubt that the terms of s 81(1) require the Director to give procedural fairness to the plaintiffs and even if s 81(1) were in different terms, the rules of natural justice in circumstances where a party’s or a person’s interests may be punished or prejudiced or adversely affected would be implied in the provisions, subject to express words or words of necessary intendment to the contrary: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596.

9 Notwithstanding that the requirements for natural justice or procedural fairness (as it is more often termed in these days) apply, those rules are not fixed. The procedure before the Director is informal. It does not allow for evidence on oath and it seems the Director does not usually allow for the cross-examination of witnesses. Notwithstanding such informality, natural justice requires that a party be permitted to contest material that is before the Director or tribunal and the “complaint” that is agitated in these proceedings is that the insufficiency of time does not allow the defendants to contest properly or adequately the material upon which the police seek to rely.

10 The Director seeks to answer that in two ways. Firstly, and essentially, the Director submits that the application is premature. It is premature, the Director submits, because it is not known yet whether on 2 July 2009, that is a day and a half from now, the matter will proceed to conclusion. Nor is the material upon which the Director will rely known. The difficulty with that course is the response letter of 30 June 2009, issued by the Director in answer to the plaintiff’s application for an adjournment sought in the letter of 17 June 2009, to which I have referred. That letter, in part, says:

“In relation to the material provided to the Director by the Commissioner and mentioned in numbered paragraphs 2 and 3 above I am presently inclined to receive and rely on at the conference, for the purposes of any decision under section 81 of the Liquor Act , the information in summaries of COPS information but not the COPS extracts themselves unless I am persuaded to the contrary at the conference. Participants in the conference will have an opportunity at the conference to put their views to me on this issue.”

11 The letter expressly or impliedly rejects the application for adjournment made on 17 June.

12 The difficulty with that approach is manifest. The plaintiffs have been supplied with information, which includes the following: a summary of the COPS material and of the source documentation that related to incidents recorded in relation to each of their hotels. Further, they have been supplied with COPS summaries in relation to the other hotels. On the face of the documentation, the disturbances caused by all of the hotels will be used in the complaint against each of the hotels. The COPS summaries that have been supplied in relation to the plaintiffs’ hotels are, it is submitted, not an accurate summary of the source documents from which they emanate. As a consequence, it is plain that, to the extent that COPS summaries are relied upon in relation to the other hotels against these plaintiffs, because the plaintiffs have been denied the source material, they have been denied the opportunity to check the summaries, and as a consequence, they have been denied the opportunity to contest the material upon which the police would rely and upon which the Director is presently inclined to rely in the proceedings against them.

13 Secondly, whatever the material is that is ultimately accepted by the Director there has been, on the evidence before this Court, insufficient time in which to prepare material and, in particular, to prepare expert reports for the conference of 2 July 2009.

14 The issues of natural justice and procedural fairness were summarised by his Honour Deane J in Sullivan v The Department of Transport (1978) 20 ALR 323 at 343, as a member of the Full Court of the Federal Court of Australia. At 343 his Honour said this (omitting references):

“A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans’ attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.”

15 The above passage was cited with approval by the High Court on a number of occasions. The opportunity to present properly a case on behalf of a party must include an adequate opportunity to prepare the case. On the material that is before the Court there has not been and will not be, by 2 July 2009, an adequate opportunity to answer the case that the plaintiffs have to meet or to prepare the plaintiffs’ own cases.

16 The Director, in submitting that the application is premature and that the Court cannot be convinced that there will be a denial of natural justice, submits that the Court ought to stay its hand or dismiss the summons on the basis that any denial of natural justice would be remediable by subsequent application to the Court and/or by review. There is much force in the submission that, as a matter of discretion, the Court ought not now make orders, because it is unaware of what the Director will do or will rely upon. What the Director will rely upon is, of course, not the test. The test is whether the plaintiffs have been denied the capacity to present their case properly, including the opportunity to prepare their case.

17 Similar argument was put to his Honour McClelland CJ of the Land and Environment Court of New South Wales in Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14. His Honour took the view that, once it is established that the principles of natural justice have been breached, it is appropriate for the Court to intervene and not stay its hand. Ultimately, it must be a matter left to the discretion of the Court, depending upon the circumstances of the proceedings:

“Mr Gleeson QC conceded that if, on the evidence, a breach of s 120(2) of the Environmental Planning and Assessment Act was established, that was the end of the matter as regards the first order sought. However, what had to be established was that there had not been reasonable notice of the date of commencement of the inquiry and he contended that this had not been established by the evidence. Mr Bryson supported this submission. If, Mr Gleeson submitted, the Court was satisfied that reasonable notice of commencement had been given, it should not substitute its supervisory function for the discretion conferred on the Commissioners to arrange their own procedures. It would be inappropriate, before the inquiry commenced, for the Court to assume that the inquiry would be conducted in such a way as to constitute a breach of the principles of natural justice. The applicants in the proceedings before the Court were, on the evidence, only a minority of parties who had indicated their desire to take part in the inquiry and it was inappropriate for the Court to grant an adjournment in the absence of the majority of the parties. That should be left to the discretion of the Commissioners. There would be an opportunity, after the inquiry began, for the applicants or others, including the company for which he appeared, to approach the Court in its supervisory role for relief if they were aggrieved by the conduct of the inquiry by the Commissioners.

I am satisfied by the evidence that there has been a clear breach of s 120(2) of the Environmental Planning and Assessment Act . I agree with Mr Wilcox’s catalogue of the matters which must have been known to and should have been taken into consideration by the Commissioners in fixing a date for the commencement of the inquiry. I have reached the conclusion that if proper consideration had been given to those matters it should have been abundantly clear to the Commissioners that by announcing on 13th April that the inquiry would commence on 11th May they were not giving reasonable notice of commencement. The submissions of Mr Gleeson that I should regard the commencement date as being somewhat akin to the first day of a Royal Commission at which it is usual for appearances to be taken and procedures to be laid down and then for the substantive hearing to be adjourned to a later date finds no support in the exchange of correspondence between the objectors and the Commissioners. The only inference I can draw from that correspondence is to the contrary. In addition, if that were the Commissioners’ intention it would have been easy for Mr Bryson to say so. On the contrary, his final instructions, which I had suggested he should obtain after Mr Wilcox had indicated that his clients would not press for the relief sought in the summons if certain undertakings were forthcoming, were that the Commissioners ‘contemplate that it may be fair to embark on business other than procedural business on 11th May, 1981, and the following days, including opening addresses and submissions by parties who wish to present them’.”

18 Lastly, I deal with the proposition that the matter may adjourn on Thursday and the issues of public interest. I am not unmindful of the public interest aspects associated with this Act; equally the informality that is required by the Act in the proceedings before the Director. It seems that the terms of the orders sought in the summons are too wide. There is no reason why the Director could not hold or commence a conference on 2 July 2009, but clearly it would seem, on the material before this Court, that the Director could not conclude that conference or rely on material, in that conference, which the plaintiffs were denied an opportunity to contest.

19 On the question of costs, having heard the parties separately on that question, I am minded that costs ordinarily follow the event. Orders have been made on the application of the plaintiffs. An appropriate response to the letter of 17 June 2009 may have avoided the necessity to take the proceedings and, while the orders granted are not in the terms sought by the plaintiffs, they effect the remedies sought, albeit in terms not dissimilar to that which the Director submits may have been the result of the conference on 2 July. In all of the circumstances, I will order that the defendant pay the plaintiffs’ costs of and incidental to the proceedings as agreed or assessed.

20 In those circumstances and for the foregoing reasons the Court will make the following orders:

(1) The Director of Liquor and Gaming by himself, his servants and his agents not finalise the conference presently scheduled for 2 July 2009 under s 80 of the Liquor Act 2007 New South Wales until a date after the later of:
(a) 12 August 2009; and
(b) four weeks after the production of the material, being source material for summaries relied upon in the proceedings, to the extent such material is referred to in the letters from Harris Wheeler to the defendant dated 17 June 2009 and 25 June 2009.
(2) The defendant pay the plaintiffs’ costs of and incidental to the proceedings as agreed or assessed.

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