Star & Garter Hotel Pty Ltd v Liquor Commission of Western Australia
[2014] WASC 193
•29 MAY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: STAR & GARTER HOTEL PTY LTD -v- LIQUOR COMMISSION OF WESTERN AUSTRALIA [2014] WASC 193
CORAM: PRITCHARD J
HEARD: 3 DECEMBER 2013
DELIVERED : 29 MAY 2014
FILE NO/S: CIV 2140 of 2013
BETWEEN: STAR & GARTER HOTEL PTY LTD
Applicant
AND
LIQUOR COMMISSION OF WESTERN AUSTRALIA
First RespondentLANGTREES BOUTIQUE HOTEL PTY LTD
Second RespondentCOMMISSIONER OF POLICE
Third Respondent
FILE NO/S :GDA 9 of 2013
BETWEEN :STAR & GARTER HOTEL PTY LTD
Appellant
LANGTREES BOUTIQUE HOTEL PTY LTD
First RespondentCOMMISSIONER OF POLICE
Second Respondent
ON APPEAL FROM:
For File No : GDA 9 of 2013
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram :MR E WATLING (ACTING CHAIR)
File Ref :L30/01/247
Catchwords:
Liquor licensing - Application for liquor licence - Preliminary issue - Whether director of applicant a fit and proper person - Objector not allowed to attend or make submissions at hearing of preliminary issue - Whether objector denied procedural fairness
Legislation:
Liquor Control Act 1988 (WA)
Liquor Licensing Amendment Act 1998 (WA)
Result:
Appeal allowed in part
Application for judicial review dismissed
Category: B
Representation:
CIV 2140 of 2013
Counsel:
Applicant: Mr D Markovich
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Amicus Curiae : Mr D Leigh
Solicitors:
Applicant: Murfett Legal
First Respondent : Not applicable
Second Respondent : Dwyer Durack
Third Respondent : State Solicitor for Western Australia
Amicus Curiae : State Solicitor for Western Australia
GDA 9 of 2013
Counsel:
Appellant: Mr D Markovich
First Respondent : No appearance
Second Respondent : No appearance
Amicus Curiae : Mr D Leigh
Solicitors:
Appellant: Murfett Legal
First Respondent : Dwyer Durack
Second Respondent : State Solicitor for Western Australia
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AB v The State of Western Australia [2011] HCA 42; (2011) 244 CLR 390
Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Police v Eaton [2013] HCA 2; (2013) ALJR 267
Commissioner of Stamps v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453
Commissioner of the Australian Federal Police v Courtenay Investments Ltd [No 2] [2014] WASC 55
Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588
Hancock v Executive Director of Public Health [2008] WASC 224
Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356
Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449
Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Patsalis v State of New South Wales [2012] NSWCA 307; (2012) 81 NSWLR 742
Plaintiff S10/2011 v Minister for Immigration & Citizenship [2012] HCA 31; (2012) 246 CLR 636
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257
R v Lavender [2005] HCA 37; (2005) 222 CLR 67
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513
Re Media Entertainment & Arts Alliance; Ex parte Arnel [1994] HCA 1; (1994) 179 CLR 84
Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432
Scott v Federal Commissioner of Taxation [1966] HCA 48; (1966) 117 CLR 514
That's Entertainment (WA) Pty Ltd v Commissioner of Police [2013] WASC 75
Thiess v Collector of Customs [2014] HCA 12; (2014) 88 ALJR 514
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591
Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446
Woolworths Ltd v The Commissioner of Police [2013] WASC 413
PRITCHARD J:
Introduction
Star & Garter Hotel Pty Ltd (SGH) seeks to set aside two decisions of the Liquor Commission of Western Australia (the Commission). Those decisions were made by the Commission in the course of dealing with an application by Langtrees Boutique Hotel Pty Ltd for a liquor licence in respect of premises in Kalgoorlie (the Application). The Application was made pursuant to the Liquor Control Act 1988 (WA) (the Act). The Commissioner of Police intervened in the proceedings concerning the Application, and a number of objectors, including SGH, opposed the Application.
The Application was dealt with by a delegate of the Director of Liquor Licensing (the delegate). Before dealing with the objections raised by the objectors, the delegate decided to deal with a preliminary issue. That preliminary issue was whether Langtrees' director was a fit and proper person to hold a position of authority in a body corporate which was the holder of a liquor licence (the fit and proper person question). The delegate decided that the director was not a fit and proper person. Langtrees then sought a review of the delegate's decision by the Commission (the review).
In the course of the review, SGH sought to make submissions to the Commission on the fit and proper person question. In decisions made on 14 and 19 June 2013, the Commission decided that it would not permit SGH to make submissions on the fit and proper person question, and that SGH would not be permitted to attend the review hearing either (the Commission's decisions).
SGH commenced judicial review and appeal proceedings in this court, seeking to have the Commission's decision of 14 June 2013 set aside. However, at the hearing, the application for judicial review, and notice of appeal, were amended by leave to apply also to the Commission's decision of 19 June 2013.
The appeal and the application for judicial review were heard together. All of the respondents gave notices of intention to abide by the decision of the Court. However, the Court was assisted by counsel for the Attorney General for Western Australia, who was granted leave to appear as an amicus curiae in the absence of a contradictor.
The primary issue at the hearing was whether the Commission erred in law in concluding that as an objector, SGH was not entitled to make submissions in relation to the fit and proper person question.
A subsidiary issue was whether the Commission erred in law in concluding that SGH was not entitled to be present at the hearing of the review (quite apart from whether it was permitted to make submissions on the review).
For the reasons set out below, the appeal should be upheld in part. In so far as the Commission determined that SGH should not be permitted to attend the hearing of the review, that part of the Commission's decision of 19 June 2013 should be quashed. The appeal should otherwise be dismissed. As the application for judicial review does not raise any issues different from those raised in the appeal, it should be dismissed.
In these reasons, I deal with the following matters:
1.The statutory framework, the factual background and the Commission's decisions;
2.The basis for, and grounds of, the appeal, and the application for judicial review;
3.The primary issue on the appeal - did the Commission err in concluding that as an objector, SGH was not entitled to make submissions in relation to the fit and proper person question?
4.The subsidiary issue on the appeal - did the Commission err in concluding that SGH should not be permitted to attend the review hearing?
The statutory framework, the factual background and the Commission's decisions
In order to provide some context for the Commission's decisions, it is convenient to commence with a brief overview of the statutory framework and the factual background to those decisions. There was no dispute about that factual background.
The application process
The licensing authority (which, in the present case, meant the Director in the first instance[1]) is empowered to grant liquor licences in accordance with the Act.[2] There are a number of pre‑requisites for the grant of a liquor licence. One of those is satisfaction of the fit and proper person question.[3] The Commissioner of Police is authorised to investigate or inquire into the background of any applicant or person who is thought likely to be interested in an application,[4] and to report to the licensing authority on matters including the background, character and reputation of that person.[5] The Commissioner is able to intervene in proceedings before the licensing authority for the purpose of introducing evidence or making representations on various matters, including whether or not any person is a fit and proper person.[6] As I have observed, in this case the Commissioner intervened in the application and addressed the fit and proper person question.
[1] See the definition of 'licensing authority' in s 3 of the Act.
[2] Liquor Control Act 1988 (WA) s 30A(1).
[3] Liquor Control Act 1988 (WA) s 37(1)(b)(i).
[4] Liquor Control Act 1988 (WA) s 69(6)(a).
[5] Liquor Control Act 1988 (WA) s 69(6)(b).
[6] Liquor Control Act 1988 (WA) s 69(6)(c).
Where an application is required to be advertised (as it was in this case), a right to object to the application is conferred on any person on any of the grounds permitted by s 74 of the Act.[7] SGH's objections relied on several grounds, including that the grant of a licence to Langtrees would not be in the public interest, and would be contrary to the Act.
[7] Liquor Control Act 1988 (WA) s 73(2).
The delegate determined that he would deal with the fit and proper person question as a preliminary issue, and if that question was decided in favour of Langtrees, he would then deal with the balance of the Application, including the objections.
SGH sought to make submissions on the hearing of the preliminary issue, on the basis that the fit and proper person question was relevant to its objections. Despite the existence of some doubts as to whether SGH was entitled to make submissions in relation to the fit and proper person question, the delegate decided to receive submissions from SGH in relation to that question. Having considered those submissions, the delegate concluded that an objection on the grounds of the fit and proper person question was not a valid basis for an objection under the Act. As I have noted, the delegate went on to conclude that Langtrees' director was not a fit and proper person to hold a position of authority in a body corporate that holds a liquor licence.[8]
The review
[8] Liquor Control Act 1988 (WA) s 25(1).
On a review, the Commission is able to affirm, vary or quash the decision of the Director,[9] and to make decisions in relation to any application or matter that should in its opinion have been made in the first instance.[10]
[9] Liquor Control Act 1988 (WA) s 25(4)(a).
[10] Liquor Control Act 1988 (WA) s 25(4)(b).
Initially, the Executive Officer of the Commission wrote to SGH's solicitors advising that as an objector, and thus a party, to the application, SGH would be able to participate in the review, and in any event, the Commission would have regard to all submissions lodged by SGH which were before the delegate. Subsequently, however, the Executive Officer wrote to SGH's solicitors, drew their attention to the grounds for objection under s 74 of the Act, and advised that the Commission had formed the view that the grounds of objection relied upon in SGH's objection before the delegate were not compliant with s 74. It appears that this was intended to express a preliminary view or concern of the Commission that in so far as SGH's grounds of objection addressed the fit and proper person question, the objections went beyond the matters about which the Act permitted an objection to be made. The Executive Officer then advised that the Commission would receive submissions from SGH on the question of whether it should be permitted to address the fit and proper person question as part of its objection.
SGH's solicitors wrote to the Commission and submitted that SGH, as an objector, was a party to the proceedings, and had a right to be heard on the review hearing. SGH's solicitors also submitted that the grounds for SGH's objections under s 74 were sufficiently wide to encompass the fit and proper person question, and that therefore SGH was entitled to be heard on the review hearing, and on any subsequent hearing in relation to the application.
The Commission's decisions
The Commission's decision of 14 June 2013 was set out in a letter from the Acting Chair of the Commission to SGH's solicitors, in which he advised that:
[T]he panel hearing this application [for a review of the decision of the delegate] has had an opportunity to deliberate on the issue of your standing in this review application and makes the following observations:
'… The Commission is of the view that whilst you are a party to the proceeding in the substantive application for a hotel restricted licence, you do not have a standing to be a party to the fit and proper review application currently before the Commission. Accordingly if the applicant is successful in this preliminary review proceeding before the Commission, the matter will be referred back to the Director for the determination of the substantive application in which you have a standing as an objector.'
By letter dated 17 June 2013, SGH's solicitors wrote to the Commission disagreeing with the views expressed in its letter of 14 June 2013, further explaining the basis on which it sought to be heard, and requesting that the Commission reconsider the observations and views set out in its letter of 14 June 2013.
The Commission's decision of 19 June 2013 was set out in a letter from the Acting Chair of the Commission to SGH's solicitors, in which the Acting Chair stated that the Commission was:
[N]ot persuaded that your clients have standing in respect to this specific application for review.
Pursuant to section 16(8) of the [Act], hearings of proceedings before the Commission are to be conducted in private unless the Commission considers that, in the circumstances of the case, the hearing should be in public.
Given that your clients do not have standing in respect to this application, the Commission is not prepared to hear submissions made on behalf of your clients in respect to the issue of the applicant's fitness to hold a liquor licence. Further, the Commission is not prepared to allow any representative of your clients, legal or otherwise, to attend the hearing of the application for review.
Characterisation of the Commission's decisions
Counsel for the amicus curiae submitted[11] that in its decision of 14 June 2013 the Commission determined that SGH did not have 'standing' in the review, while in its decision of 19 June 2013, the Commission determined that SGH ought not be permitted to make submissions on the fit and proper person question, or to be present at the review hearing.
[11] ts 43.
It is not entirely clear whether the Commission intended to convey that what was set out in its letter of 14 June 2013 constituted a final decision or merely the expression of a preliminary view which it had reached. On the one hand, the content of the letter suggested that the Commission had made a determination that SGH was not entitled to be heard in the review hearing. On the other hand, the language used in that letter was somewhat ambiguous, particularly in so far as it sought to make some 'observations' (language which suggests something short of reasons for a final decision). In addition, the Commission subsequently received, and took into consideration, further submissions made by SGH's solicitors and then made a decision, which it set out in its letter of 19 June 2013.
For the purposes of these proceedings, nothing turns on whether the Commission's decisions which are the subject of these proceedings were contained in its letter of 14 June 2013, 19 June 2013, or in both letters. In my view, it suffices to say that the Commission's decisions, as set out in its letters of 14 June 2013 and 19 June 2013, concerned three matters: SGH did not have 'standing' in respect of the fit and proper person question, SGH would not be permitted to make submissions on the fit and proper person question, and SGH would not be permitted to attend the hearing of the review.
The term 'standing' refers to the question whether a person has a right or entitlement to bring proceedings before a court, tribunal or other decision‑maker, for the determination of an issue or matter. More specifically, it has been described as 'a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies'.[12]
[12] Plaintiff S10/2011 v Minister for Immigration& Citizenship[2012] HCA 31; (2012) 246 CLR 636, 659 [68] (Gummow, Hayne, Crennan & Bell JJ); Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167, 174 [15] (Gleeson CJ, Gaudron, Gummow, Hayne & Callinan JJ); see also Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591, 624 ‑ 632 [88] ‑ [107] (Gummow J).
Although the Commission's use of the term 'standing' was somewhat ambiguous, it appears that the term was used by the Commission to refer to the scope of the objections which SGH was entitled to make - namely whether SGH's objections could encompass the contention that Langtrees' director did not satisfy the fit and proper person question. Having determined that issue against SGH, the Commission concluded that it was not necessary to permit SGH to be heard on the review (which was to be confined to the fit and proper person question). In addition, in its decision of 19 June 2013 the Commission concluded that SGH would not be permitted to attend the hearing in respect of the review.
The basis for, and grounds of, the appeal, and the application for judicial review
The sole ground of appeal was that the Commission 'erred in law in denying [SGH] its right of audience at, and the right to make submissions to, and to attend the review hearing and to otherwise participate in the review proceedings'. SGH sought that the Court quash the Commission's decisions,[13] decide that SGH has standing to appear before the Commission,[14] and send the matter back to the Commission for reconsideration.[15]
[13] Liquor Control Act 1988 (WA) s 28(5)(a).
[14] Liquor Control Act 1988 (WA) s 28(5)(b).
[15] Liquor Control Act 1988 (WA) s 28(5)(c).
A person who is dissatisfied with a 'decision' of the Commission constituted by three members may appeal to the Supreme Court on a question of law.[16] There was no dispute[17] that the Commission's decisions were made by a three member panel of the Commission.
[16] Liquor Control Act 1988 (WA) s 28(1) and s 28(2).
[17] ts 49 ‑ 50.
The definition of a 'decision' under the Act includes an order, direction or determination.[18] Counsel for SGH submitted, and counsel for the amicus curiae agreed, that the Commission's decisions of 14 and 19 June 2013 fell within the definition of 'decision' in the Act,[19] so that there was a right of appeal to this court on a question of law.[20] I accept that the Commission's decisions can be characterised as 'decisions' under the Act.
[18] Liquor Control Act 1988 (WA) s 3; see also That's Entertainment (WA) Pty Ltd v Commissioner of Police [2013] WASC 75 [10] (Pritchard J).
[19] ts 49 ‑ 50.
[20] Liquor Control Act 1988 (WA) s 28(1) and s 28(2).
Because the ground of appeal raises questions of law in relation to those decisions, a right of appeal lies to this court against the Commission's decisions. Appellate intervention in such a case requires the demonstration of an error of law.[21]
[21] Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [35] (Pullin JA, Malcolm CJ & McLure JA agreeing).
The grounds for SGH's application for judicial review were that the Commission erred in law, and made a jurisdictional error, 'in denying [SGH] its right, pursuant to ss. 25(6) and 74(1)(j) of the Act, to attend and to be heard in the review proceedings before it in respect of the … review … regarding [the fit and proper person question]'. SGH sought the issue of the writs of certiorari, mandamus and prohibition, to quash the Commission's decisions, to compel the Commission to permit SGH to attend the hearing and to make submissions on the fit and proper person question, and to prevent the Commission from proceeding to determine the review without giving SGH the opportunity to be heard on the fit and proper person question.
It is well established that the existence of other remedies, such as avenues of appeal (particularly if those remedies have not been pursued, in the absence of some good reason for not doing so) will weigh heavily against the exercise of the court's discretion to grant relief by way of judicial review.[22] As SGH exercised its right of appeal under the Act at the same time as it sought judicial review, and as its application for judicial review did not raise different issues from those which were raised by SGH's appeal, I would decline any grant of prerogative relief. In those circumstances, the application for judicial review should be dismissed.
[22] R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257, 262 (Sir John Donaldson MR, Purchas LJ agreeing); Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501, 528 ‑ 529 [133] ‑ [139] (Martin CJ, Wheeler JA agreeing).
It is appropriate to make one further observation. SGH pursued its appeal and application for judicial review before the Commission proceeded to deal with the review on the preliminary issue of the fit and proper person question. The alternative course would have been to await the Commission's decision on the review, and if SGH were dissatisfied with that decision, to consider an appeal at that stage, rather than at the interlocutory stage at which the appeal was pursued in this case. That alternative course would have been preferable so as to avoid the possibility of multiple, or unnecessary, appeals.
The primary issue on the appeal - did the Commission err in concluding that as an objector, SGH was not entitled to make submissions in relation to the fit and proper person question?
Counsel for SGH submitted that the Commission erred in concluding that as an objector, SGH was not entitled to make submissions in relation to the fit and proper person question. In summary, counsel advanced that submission on four bases, which were:
(a)SGH was a 'party' to the application and thus to the review. As a party, it was entitled to make submissions on any issue arising in the application or the review, including the fit and proper person question;
(b)The grounds of SGH's objections under s 74(1)(a) of the Act (public interest), and s 74(1)(j) of the Act (whether the grant of a liquor licence would be contrary to the Act) were sufficiently broad to encompass the fit and proper person question;
(c)The requirements of procedural fairness required that SGH be permitted to address the fit and proper person question in the course of the review;
(d)SGH was denied procedural fairness in that the Commission denied it the opportunity to be heard on the fit and proper person question without first hearing its submissions on the fit and proper person question.
I deal with these bases in turn.
(a) Whether SGH - as a 'party' to the application - was entitled to make submissions on the fit and proper person question
Counsel for SGH submitted that the Act contemplated a single process whereby all issues concerning an application for a liquor licence (including the fit and proper person question, and objections) would be dealt with. He submitted that as a result of that 'singular process ... all the parties have the right to make representations, and where appropriate to appear, at all times'.[23] Counsel for SGH also submitted that by virtue of s 25(6)(a) of the Act, SGH was a party to the proceedings on the application, whether or not its objection was heard by the delegate. Although he accepted that it was open to the delegate to determine the fit and proper person question as a preliminary issue, counsel for SGH submitted it was not open to the Commission to exclude SGH from any review of the delegate's decision on that preliminary issue, and that as a result SGH was entitled to be heard in the review.
[23] Appellant's written outline of submissions, 20 September 2013 [28].
In my view, these submissions conflate two issues. The first is the question of the identification of the parties to the review proceeding. The second is the content of any duty of procedural fairness which the Commission is required to afford to the parties on the review hearing.
The parties to a review
I turn first to the identification of the parties to a review hearing. The Act permits the grant of liquor licences by the licensing authority.[24] An applicant for a licence must make an application in accordance with the requirements of the Act.[25] Various parties, including the Commissioner of Police, are permitted to intervene in proceedings before the licensing authority in respect of an application.[26] A person who intervenes in any proceedings will usually become a party to the proceedings.[27] A person may also object to an application for a liquor licence.[28] An objector is also a 'party to proceedings' in relation to the application.[29]
[24] Liquor Control Act 1988 (WA) s 30A(1).
[25] Liquor Control Act 1988 (WA) pt 3, div 7.
[26] See Liquor Control Act 1988 (WA) s 69.
[27] Liquor Control Act 1988 (WA) s 69(13)(a).
[28] Liquor Control Act 1988 (WA) s 74.
[29] See the definition of 'party to proceedings' in Liquor Control Act 1988 (WA) s 3.
There is no doubt that as an objector, SGH was a party to the proceedings being determined by the licensing authority (that is, the proceedings before both the delegate and the Commission in respect of the Application). That position did not change simply because the delegate decided to deal with the fit and proper person question as a preliminary issue.
Subsection 25(6)(a) of the Act does not assist SGH's case that it was entitled to make submissions to the Commission on the review. That subsection provides that for the purposes of a review:
[A] person who lodged an objection to an application, and did not withdraw it, is a party to any proceedings on the application, whether or not the objection was heard[.]
In my view, s 25(6)(a) operates in two ways. First, it confirms that if an application is subject to a review by the Commission, an objector remains a party to proceedings on the application. Secondly, it confirms that an objector remains a party to those proceedings even if the objector's objection was not dealt with.
In my view, s 25(6) is directed to the situation where an application is refused by the Director without the necessity for the Director to deal with all of the objections raised by all objectors. (By way of example, an application may be declined on one ground, with the result that it may not be necessary for the Director to proceed to deal with other grounds for objection. Alternatively, the Director may determine that an objection should not be heard at all in the course of dealing with an application.[30]) However, in the course of a review of the Director's decision in relation to that application, it may become necessary for the Commission to deal with those other objections.[31] In view of that possibility, the purpose of s 25(6) is to make clear that each objector who has not withdrawn remains a party to the proceedings. Consequently, in the present case, s 25(6)(a) confirms that SGH remains a party to the proceedings in respect of the Application, which include the review.
Determining the content of the obligation of procedural fairness
[30] Liquor Control Act 1988 (WA) s 74(4).
[31] The Commission may make a decision in relation to any application or matter that should, in its opinion, have been made in the first instance: see Liquor Control Act 1988 (WA) s 25(4)(b).
The fundamental difficulty in SGH's case was that it was premised on the assumption that a party to a proceeding is entitled to be heard (that is, to make submissions) on each and every issue that may arise in the course of the proceeding. That is not necessarily so. Instead, whether a party should be afforded an opportunity to be heard on a particular issue falls to be determined by the application of the principles of procedural fairness. There is no doubt that the Commission is bound by the requirements of procedural fairness.[32] However, the content of the duty to afford procedural fairness must be discerned from the provisions of the Act,[33] properly construed.
[32] Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356 [29] (Wallwork J, Templeman J & Einfeld AJ agreeing); Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446, 463 ‑ 464 [61] (Buss JA, Martin CJ & Murphy JA agreeing); Hancock v Executive Director of Public Health [2008] WASC 224 [39] (Martin CJ); Woolworths Ltd v The Commissioner of Police [2013] WASC 413 [15] (Edelman J).
[33] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J), 619 (Brennan J).
That process of construction starts with a consideration of the ordinary meaning of the words used, within their context. That context includes matters such as the meaning of the language used within the Act when viewed as a whole, the provisions of the Act as a whole and how they work together, and the purpose to which the Act was directed.[34]
[34] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ); AB v The State of Western Australia [2011] HCA 42; (2011) 244 CLR 390, 398 [10], 402 [24] (French CJ, Gummow, Hayne, Kiefel & Bell JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 88 ALJR 514, 518 [22] (the Court).
In ascertaining the content of the Commission's duty to afford procedural fairness in conducting a review, the key provision is s 16(11) of the Act. That subsection requires the licensing authority (in this case, the Commission) to 'ensure that each party to a proceeding before it is given a reasonable opportunity to present its case'. However, while s 16(11) embodies the requirement of procedural fairness which the Commission is required to observe on a review, it does not do so in isolation, but rather is informed by other provisions of the Act, particularly those which deal with the Commission's procedures.
In this respect, it must be borne in mind that the licensing authority has considerable flexibility in the manner in which it conducts proceedings under the Act. It is required to act without undue formality,[35] it must act as speedily and with as little formality and technicality as is practicable,[36] it is not bound by the rules of evidence,[37] it may consider and dismiss or determine applications, and receive submissions and representations in relation to any application before it, as it thinks fit,[38] and it must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.[39] Further, the duty in s 16(11) is expressly subject to the Commission's power to make directions as to who may be present at a hearing,[40] and to prohibit or restrict access to documents or evidence in the proceedings.[41]
[35] Liquor Control Act 1988 (WA) s 16(1)(a).
[36] Liquor Control Act 1988 (WA) s 16(7)(c).
[37] Liquor Control Act 1988 (WA) s 16(7)(a).
[38] Liquor Control Act 1988 (WA) s 16(1)(d).
[39] Liquor Control Act 1988 (WA) s 16(7)(b).
[40] Liquor Control Act 1988 (WA) s 16(9)(a).
[41] Liquor Control Act 1988 (WA) s 16(9)(c).
Turning now to the terms of s 16(11) of the Act, what constitutes a 'reasonable opportunity' to present the case, and the manner in which a party will be permitted to present its case, may vary in accordance with the circumstances of the case. So, for example, if one objector objected to an application on the ground that the grant of the application would cause undue offence, annoyance, disturbance or inconvenience to persons who reside or work in the vicinity of the premises the subject of the application,[42] while another objector objected on the ground that the grant of the application would cause undue harm or ill‑health to people due to the use of liquor,[43] it is difficult to see any basis on which it could be said that the Commission would be obliged to permit either objector the opportunity to address the subject of the other's objection.
[42] Liquor Control Act 1988 (WA) s 74(1)(g)(i).
[43] Liquor Control Act 1988 (WA) s 74(1)(b).
In my view, nothing in s 16(11), or in the Act more generally, obliges the Commission to permit each party to a proceeding to be heard in respect of each issue arising for consideration by the Commission, irrespective of whether that issue pertains to the case the party seeks to advance before the Commission.
Accordingly, I am unable to accept the submission that simply because SGH was a party to the review, the Commission should have permitted it to be heard on the fit and proper person question, irrespective of whether that issue was encompassed by the objections SGH had raised.
I turn next to consider the parameters of SGH's objections.
(b) Whether the grounds of SGH's objections were sufficiently broad to encompass the fit and proper person question
The question whether the Commission was obliged to hear from SGH on the fit and proper person question depended upon whether that question formed part of its case. If it did, then the Commission was obliged to provide SGH with a reasonable opportunity to present that case.
As I noted at [12] SGH objected to the application on several bases, including that the grant of the application would not be in the public interest (s 74(1)(a) of the Act) and that the grant of the application would be contrary to the Act (s 74(1)(j) of the Act). SGH submitted to the delegate that its objection on public interest grounds was broad enough to encompass a consideration of the fit and proper person question. When the Commission raised the issue whether SGH's objections bore on the fit and proper person question, the solicitors for SGH submitted that the fit and proper person question also arose in respect of its objection that the grant of a licence would be contrary to the Act. The basis for that submission was that it would be contrary to the Act to grant a liquor licence to a person who was not a fit and proper person to hold a licence.
Whether the fit and proper person question formed part of SGH's case depended upon the proper construction of s 74(1) of the Act. That subsection provides:
No objection shall be made except on one or more of the following grounds -
(a)that the grant of the application would not be in the public interest; or
(b)that the grant of the application would cause undue harm or ill‑health to people, or any group of people, due to the use of liquor; or
…
(g)that if the application were granted -
(i)undue offence, annoyance, disturbance or inconvenience to persons who reside or work in the vicinity … would be likely to occur; or
(ii)the amenity, quiet or good order of the locality in which the premises or proposed premises are, or are to be, situated would in some other manner be lessened;
or
…
(j)that the grant of the application would otherwise be contrary to this Act.'
Counsel for SGH submitted that once a person makes an objection pursuant to s 74, that objector has a right to be heard on all issues in the application, including the fit and proper person question.[44] I am unable to agree for the reasons set out above at [42] ‑ [47].
[44] ts 68.
A related argument which counsel for SGH advanced was that the grounds for objection in s 74 of the Act are sufficiently broad to encompass consideration of the fit and proper person question. I accept that the words used in s 74(1)(a) and (j), considered in isolation, might be construed as sufficiently broad in meaning to encompass consideration of the fit and proper person question. There is, for example, no doubt that it would be contrary to the Act to grant a liquor licence to a body corporate whose director was not a fit and proper person.[45] Similarly, if a power to do (or not to do) something is conferred by reference to the 'public interest', that will ordinarily be understood to involve the conferral of a very broad discretion. (A discretion of that kind has been described as one which falls to be exercised 'by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any object the Parliament could have had in view'.[46]) Furthermore, although s 38(4) of the Act provides an indication of the matters to which the licensing authority may have regard in determining whether it would be in the public interest to grant a liquor licence, those factors are not the only matters to which the licensing authority may have regard in the public interest.[47]
[45] Liquor Control Act 1988 (WA) s 37(1)(a) and (b).
[46] Plaintiff S10/2011 v Minister for Immigration& Citizenship[2012] HCA 31; (2012) 246 CLR 636, 648 [30] (French CJ & Kiefel J), citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson & Gaudron JJ) and Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505; see also Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 329 ‑ 330 [13] ‑ [14] (French CJ, Gummow & Bell JJ).
[47] Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384 [33] (EM Heenan J).
However, in my view, the grounds for objection under s 74(1)(a) and (j) cannot be construed so as to permit an objector to rely upon the fit and proper person question. I have reached that view for three reasons.
First, the grounds of objection in s 74(1) make no express reference to the fit and proper person question. That is particularly significant given that elsewhere in the Act the fit and proper person question is dealt with quite separately from the grounds for refusing the grant of a liquor licence, including the public interest.[48] (I note that the licensing authority has an absolute discretion to grant or refuse an application under the Act 'on any ground, or for any reason, that the licensing authority considers in the public interest'[49] and may grant an application even if a valid ground of objection is made out.[50] In contrast, however, the requirement that the holder of a licence (or officer of a body corporate which is the holder of a licence) be a fit and proper person to hold a licence constitutes an express and discrete pre‑requisite without which a licence must not be granted.[51]) That distinction militates against the conclusion that objections on public interest grounds under s 74(1)(a) should be construed as encompassing the fit and proper person question.
[48] Compare s 37(1)(a) with s 33(1) and see also Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446 [54] (Buss JA, Martin CJ & Murphy JA agreeing).
[49] Liquor Control Act 1988 (WA) s 33(1).
[50] Liquor Control Act 1988 (WA) s 33(2)(b).
[51] Liquor Control Act 1988 (WA) s 37(1)(a) and (b).
Secondly, the opening words of s 74(1) are words of limitation: objections are not permitted, unless they are made on the grounds set out. In addition, the burden of establishing the validity of any objection lies on the objector.[52] These provisions support the view that the Parliament's intention was that objections would be permitted only on the limited grounds of objection set out in s 74(1).
[52] Liquor Control Act 1988 (WA) s 73(10).
Thirdly, and most significantly for present purposes, the legislative history of s 74(1) supports the conclusion that neither s 74(1)(a) nor s 74(1)(j) should be construed as encompassing the fit and proper person question. The genesis and history of legislation forms part of the statutory context to which regard may be had in construing a statute. In a case, such as the present, where a statute has been amended, including by a partial repeal of its provisions, the terms of the legislation prior to the amendment and repeal may shed light on the meaning of the statute in its amended form.[53]
[53] R v Lavender [2005] HCA 37; (2005) 222 CLR 67, 79 ‑ 80 [31], 81 ‑ 86 [33] ‑ [54] (Gleeson, McHugh, Gummow & Hayne JJ, Callinan & Heydon JJ agreeing), [109] (Kirby J); Patsalis v State of New South Wales [2012] NSWCA 307; (2012) 81 NSWLR 742, 751 [40] (Basten JA, Allsop P & Sackville AJA agreeing); Commissioner of the Australian Federal Police v Courtenay Investments Ltd [No 2] [2014] WASC 55 [48] (Edelman J).
In the Liquor Licensing Amendment Act 1998 (WA) (the Amending Act) significant amendments were made to the Act in so far as the fit and proper person question was concerned. Prior to the Amending Act, s 74 of the Liquor Licensing Act 1988 (WA) (as it was then called) provided:
(1)No objection shall be made except on one or more of the following grounds -
(a)that the grant of the application would be contrary to the public interest;
(b)where the application is for the grant or transfer of a licence, that -
(i)the applicant;
(ii)a person who occupies a position of authority in a body corporate that is the applicant; or
(iii)a person in respect of the appointment of whom as a manager or trustee the approval of the licensing authority is sought,
is a disqualified person, or a person of bad reputation or character, or otherwise not a fit and proper person;
(c)that a person directly or indirectly interested in the application or in the business, or the proceeds of the business, to be carried on if the application is granted is not a fit and proper person to be so interested;
(d)on an application relating to a Category A licence, that the grant of the application is not necessary in order to provide for the requirements of the public;
(e)that the premises, accommodation or services proposed to be provided if the application is granted will be inadequate to meet the requirements of the public or will be unsuitable or unsatisfactory for any other reason;
(f)that the position, nature, state of repair or standard of the premises or proposed premises renders them unsuitable to be licensed, or to be licensed under a licence of the class to which the application relates;
(g)that if the application were granted -
(i)undue offence, annoyance, disturbance or inconvenience to persons who reside or work in the vicinity, or to persons in or travelling to or from an existing or proposed place of public worship, hospital or school, would be likely to occur; or
(ii)the amenity, quiet or good order of the locality in which the premises or proposed premises are, or are to be, situated would in some other manner be lessened;
(h)on an application relating to a club licence -
(i)that the club does not, or has ceased to, exist;
(ii)that persons who are not members are habitually admitted to the club premises, merely for the purpose of obtaining liquor;
(iii)that the supply of liquor to the club is not under the control of the members or of the committee appointed by the members; or
(iv)that the rules, or some of the rules, of the club are habitually broken or are so administered as not to conform to the requirements of this Act; or
(j)that the grant of the application would otherwise be contrary to this Act.
Amongst other things, the Amending Act deleted s 74(1)(b) and (c) from s 74. However, it remained the case under the Act that the Commissioner was authorised to make inquiries into the background and antecedents of any person thought likely to be interested in an application, to provide a report to the licensing authority on those matters, and to intervene in proceedings before the licensing authority to introduce evidence and make representations on the question whether or not any person was a fit and proper person.[54]
[54] Liquor Licensing Act 1988 (WA) s 69(6), now Liquor Control Act 1988 (WA) s 69(6).
In addition, the Amending Act amended s 25 of the Act. Prior to the amendment, s 25(1) permitted any party to proceedings before the Director who was dissatisfied with the Director's decision to apply for a review of that decision, and so permitted any party to apply for a review of a decision by the Director on the question of an applicant's fitness for a licence. The terms of s 25(1) were not altered by the Amending Act, but a new s 25(3) was inserted into the Act. That new subsection (which remains in the Act) provides that a review of the Director's decision cannot reconsider any finding of fact by the Director as to the qualifications, reputation or character of a person, or the fitness or propriety of a person in relation to an application or licence, unless that review is sought by the applicant or by the person in respect of whom a finding is made.
These amendments reflect a clear shift in the approach taken in the Act to the persons who would be entitled to raise questions about the fitness of an applicant to hold a liquor licence. That change in approach was summarised by the then Deputy Premier, the Hon Hendy Cowan MLA, in the second reading speech for the Liquor Licensing Amendment Bill 1997 (WA) (which was enacted as the Amending Act).[55] The Deputy Premier observed that:
[S]ignificant changes will be made to those provisions relating to both objections and complaints under the legislation. The objection process will be modified by removing issues relating to the suitability of premises and the probity of individual applicants from public dispute. In future, the process will rely on the competency of the director of liquor licensing to assess these elements of an application.
[55] Western Australian Parliamentary Debates, Legislative Assembly, 23 October 1997, page 7369.
Having regard to the legislative history set out above, to construe either s 74(1)(a) or s 74(1)(j) as encompassing the fit and proper person question would be entirely inconsistent with the amendments made to the Act by the Amending Act, and would give those provisions a meaning which they were clearly not intended to have.
Accordingly, in my view an objector who relies upon s 74(1)(a) or s 74(1)(j) of the Act is not entitled to rely upon the fit and proper person question as the basis for why the grant of a licence would either not be in the public interest or would not be for the purposes of the Act.
A further, related argument advanced by counsel for SGH[56] was that the terms of s 25(6) of the Act indicated that the right of a party to be heard on a review was not confined to the scope of the objection made by that party. He submitted that s 25(6) conveyed the Parliament's intention to 'counter balance' the restriction it had imposed on objectors' rights (by virtue of the amendment of s 74) by extending their rights to make submissions on the fit and proper person question pursuant to s 25(3) of the Act.[57] He submitted that had the Parliament intended that an objector would not be heard on the fit and proper person question, it could have amended s 25(6) to make clear that an objector was a party to proceedings concerning an application, other than in relation to the fit and proper person question.[58] I am unable to accept these submissions, for three reasons.
[56] ts 57.
[57] ts 58, 61, 63.
[58] Appellant's written outline of submissions, 20 September 2013 [45].
First, there is nothing in the words in s 25(6) to suggest that the subsection was intended to confer on an objector the right to make submissions in relation to the fit and proper person question. Secondly, the context, including the apparent purpose of s 25(6), does not support the submission, for the reasons set out at [39] ‑ [41] above. Thirdly, the construction of s 25(6) advanced by counsel for SGH is inconsistent with the confined bases for objection set out in s 74 of the Act. Legislative provisions must be construed in the context of the statute as a whole,[59] and to the extent possible (having regard to the words used) should be construed so that the provisions of the statute will operate consistently with one another.[60] To attribute to s 25(6) the meaning suggested by counsel for SGH would be to undermine the limited scope of the objections permitted pursuant to s 74 of the Act.
[59] Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449, 455 (Isaacs & Rich JJ); Scott v Federal Commissioner of Taxation [1966] HCA 48; (1966) 117 CLR 514, 524 (Windeyer J); K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, 315 (Mason J); Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378, 389 [24] (French CJ & Hayne J); Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588, 597 [47] (the Court); and see generally CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
[60] Cf Ross v The Queen[1979] HCA 29; (1979) 141 CLR 432, 440 (Gibbs J); Commissioner of Stamps v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453, 479 (McHugh & Gummow JJ); Commissioner of Police v Eaton [2013] HCA 2; (2013) ALJR 267, 285 [90] (Crennan, Kiefel & Bell JJ).
A further argument advanced by counsel for SGH was to the effect that an objector may be able to contribute relevant material to the licensing authority's consideration of the fit and proper person question, including material which may not be identified by the Commissioner. In support of this submission, he referred to s 33(6) of the Act, which sets out various matters of relevance to the fit and proper person question. Counsel for SGH submitted that the matters referred to in s 33(6) - such as the character, reputation and creditworthiness of a person - went beyond information that would be available to the Commission. I am unable to accept that submission. The matters referred to in s 33(6) clearly overlap with the matters about which the Commissioner may investigate pursuant to s 69(6) of the Act, and s 33(6) expressly requires the licensing authority to have regard to any report submitted, or intervention made, under s 69 of the Act.
(c) Whether SGH should have been permitted to address the fit and proper person question in the course of the review, having regard to the requirements of procedural fairness
As I have already noted, there is no doubt that the Commission is required to afford procedural fairness. But for the reasons I have already set out, the requirement of procedural fairness to which the Commission was subject did not require it to permit SGH the opportunity to be heard in relation to an issue which was outside the parameters of the objection it was permitted to make pursuant to s 74 of the Act. That was because a determination of the fit and proper person question could not directly affect any right or interest[61] of SGH, having regard to the statutory parameters for its objections. In this respect, it is appropriate to emphasise that it is clear from the Commission's decisions that it understood that the review concerned the resolution of the fit and proper person question as a preliminary question. It is also clear that the Commission intended that if it determined the fit and proper person question in favour of Langtrees, then it would refer the application back to the delegate to deal with the objections.
[61] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J), 619 (Brennan J), 632 ‑ 633 (Deane J); Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane & McHugh JJ); see also Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513; Re Media Entertainment & Arts Alliance; Ex parte Arnel [1994] HCA 1; (1994) 179 CLR 84, 92 ‑ 93 (Mason CJ, Brennan, Dawson & Gaudron JJ).
For completeness, I note that in view of the parameters of the objections relied upon by SGH, it does not appear that the resolution of the fit and proper person question would require the determination of facts which could have any bearing on the resolution of SGH's objections, should it ultimately be necessary for the licensing authority to deal with those objections.[62] However, even if that situation were to change during the hearing of the review, then provided that SGH were present during the hearing (a matter with which I deal with below), an application could be made on its behalf for it to be heard in relation to that factual issue.
[62] Cf J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 462 (Brennan J, Mason & Dawson JJ agreeing), 463 (Deane J).
Two further arguments were advanced by counsel for SGH. The first was that if it were not permitted to be heard on the review in respect of the fit and proper person question, then the anomalous situation would arise where the review would be determined on the basis of information which was before the delegate (which information included the material put before the delegate by SGH) but SGH would not be permitted to address that material on the review. I do not accept that submission. The fact that the delegate received material from SGH in relation to the fit and proper person question, but ultimately decided that SGH was not entitled to be heard in relation to that question, does not give rise to any right or interest which requires the Commission to hear from SGH on the review of the fit and proper person question.
Secondly, SGH submitted that if it were not permitted to be heard on the review of the fit and proper person question, it would not be able to appeal against any decision of the Commission in respect of the review. However, the entitlement of a party to appeal from a decision of the Commission derives from s 28 of the Act, and does not depend upon whether that party makes submissions to the Commission in respect of a particular issue arising for determination in the course of a review (although ordinarily those considerations will be closely linked).
(d) Whether SGH was denied procedural fairness in that the Commission denied it the opportunity to be heard on the fit and proper person question without first hearing its submissions on the fit and proper person question.
Counsel for SGH also appeared to advance the submission that the Commission erred in that it concluded that SGH should not be heard on the fit and proper person question without first hearing SGH's submissions on that question (as the delegate had done).[63] I do not accept that submission. The Commission made a determination that SGH would not be heard on the review application. It did so having given SGH the opportunity on two occasions to make submissions as to whether it was entitled to be heard. The Commission clearly took SGH's submissions into account. The Commission's decisions were clearly based on its construction of the relevant provisions of the Act. SGH's submissions as to the fit and proper person question were not of relevance to that question.
The subsidiary issue on the appeal - did the Commission err in concluding that SGH should not be permitted to attend the review hearing?
[63] Appellant's written outline of submissions, 20 September 2013 [38] ‑ [39].
This subsidiary issue received little attention in the submissions of counsel for SGH and at the hearing, no doubt because SGH's primary objective was to ensure that it should be permitted to make submissions on the review. In any event, it is possible to deal with this subsidiary issue rather more briefly than the other issues raised in the appeal.
In my view, the Commission's decision of 19 June 2013 that it was 'not prepared to allow any representative of [SGH], legal or otherwise, to attend the hearing of the application for review' was tainted by an error of law. Counsel for the amicus curiae acknowledged as much.[64] In so far as it relied upon the fact that proceedings before the Commission are ordinarily conducted in private,[65] the Commission appears to have equated SGH with a person who is not party to proceedings before the Commission. In this respect, the Commission appears to have overlooked the effect of s 25(6) of the Act, and the effect of s 17(1) of the Act, which makes clear that a party to proceedings being determined by the licensing authority may appear personally or by counsel, or by certain other representatives. There is no doubt that the Commission has express powers to determine whether its proceedings are to be conducted in public or private,[66] and in respect of hearings conducted in private, to determine who is present at the hearing (in addition to the parties).[67] In some cases (for example, where confidential police information[68] is to be adduced in evidence) the Act permits the exclusion of parties to the proceedings.[69] However there was no suggestion in the Commission's decisions that any such circumstances applied here.
[64] ts 84 ‑ 85.
[65] See Liquor Control Act 1988 (WA) s 16(8).
[66] Liquor Control Act 1988 (WA) s 16(8).
[67] Liquor Control Act 1988 (WA) s 16(9).
[68] Liquor Control Act 1988 (WA) pt 2, div 7.
[69] Liquor Control Act 1988 (WA) s 30(6).
Consequently, I would quash that part of the Commission's decision of 19 June 2013 by which it denied SGH the opportunity to attend the review hearing. For the avoidance of any doubt, I would emphasise that while SGH should be permitted to attend the hearing of the review as a party to that proceeding, that does not mean that SGH is entitled to make written or oral submissions on the fit and proper person question. It is, of course, open to SGH to decide not to attend the review hearing, but rather to await the outcome of that hearing, having regard to the Commission's indication that if Langtrees is successful on the review, the Commission will send the Application back to the delegate for a determination of the objections.
Conclusion
The appeal should be upheld only to the limited extent set out at [75] above, and the Commission's decision of 19 June 2013 should be quashed only in so far as the Commission decided that SGH would not be permitted to attend the hearing of the review. I will hear from the parties as to the orders which should be made.
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