The Palace Gallery Pty Ltd v The Liquor and Gambling Commissioner

The Supreme Court of South Australia considered a dispute between The Palace Gallery Pty Ltd, a licensee of a special circumstances licence for premises in Hindley Street, Adelaide, and the Liquor and Gambling Commissioner. The core of the disagreement concerned the validity of a Code of Practice published by the Commissioner under section 11A of the Liquor Licensing Act 1997 (SA) (the Act), and its application to the plaintiff's licence, particularly in relation to designated Area 5 on the footpath.

The legal issues before the Court included whether certain clauses of the Code exceeded the limitations and restrictions imposed by section 11A(2) of the Act, whether the Code was invalid due to inconsistency with the authority conferred by a Special Circumstances Licence, and whether the Code varied or departed from provisions of the Act concerning the opening and closing of licensed premises or the exclusion of persons. The Court was also asked to determine if the Code was invalid as a whole, or if specific clauses were invalid and could not be severed. A preliminary question regarding the validity of clause 3 of Schedule 1 to the Liquor Licensing (Miscellaneous) Amendment Act 2013 (SA) was to be answered first.

The Court, comprising Kourakis CJ, Blue and Stanley JJ, first addressed the validity of clause 3 of Schedule 1 to the Amending Act, finding it to be valid. The Court then considered the application of clause 12 of the Code to the plaintiff, determining that it was not invalid by reason of exceeding the authority of section 11A(2) of the Act, nor was it inconsistent with the plaintiff's licence conditions or the Act's provisions regarding trading hours or exclusion of persons. Consequently, the Court found clause 12 of the Code to be valid in its application to the plaintiff.

The Court concluded that clause 12 of the Code was not invalid in its application to the plaintiff. As a result, questions concerning the invalidity of other clauses of the Code and the Code as a whole, which were contingent on the invalidity of clause 12 or other specific clauses, were either answered as not arising or unnecessary and inappropriate to answer. The plaintiff's contention regarding inconsistency with the Act, drawing from section 109 of the Constitution, was not ultimately determinative of the outcome.