Whitehouse v Hoodbury Pty Limited

[1988] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B27 of 1988

B e t w e e n -

CHARLES MACDONALD WHITEHOUSE

Applicant

and

HOODBURY PTY LIMITED,

CHARLES ROBERT MACKENZIE and

INTERCHASE CORPORATION LIMITED

First-named Respondents

and

THE LICENSING COMMISSION

Second-named Respondents

Application for special leave

to appeal

Whitehouse

MASON CJ

WILSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 1 JULY 1988, AT 3.02 PM

Copyright in the High Court of Australia

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MR R.R. DOUGLAS, QC:  I appear with my learned friend,

MR P. McMURDO, for the applicant, if the Court

pleases. (instructed by Lees Marshall & Warnick)

MR R. COOPER, QC: If the Court pleases, I appear with my

learned friend, MR A.K. HERBERT, for the first

respondent. (instructed by Stephens & Tozer)

MASON CJ:  The Registrar advises that he has been advised

wish to make any submissions on the hearing

by the ·solicitors for the second respondent, the not

of the application. Yes, Mr Douglas.

MR DOUGLAS:	Your Honours, may we hand up three copies of the relevant section of the LIQUOR ACT, section 49A,
and also a bundle of the cases on which we intend
to rely.  Your Honours, the history of this matter
concerns an application to remove an hotel licence from one place in the city of Brisbane to another,
pursuant to section 49A.  The matter was first
heard by the Licensing Court which decided to grant
the application for removal.  Those whom we represent
appealed to the Full Court.  The Appeal was allowed
in the sense that the order of the court below
was set aside but on grounds which were neither
argued nor raised before the Full Court and upon
which neither party had the opportunity of
addressing the Court.  ·
The effect of the Full Court's decision is that those in the place of the people we represent
as objectors to the removal of the licence have
had taken from them a right which was presumed
to exist to object to the removal from point A to point Band have been left with a right to object only as to whether point B, that is the place to· which the licence is to go, is a suitable place for the licence to go.

The Full Court adopted an interpretation of

section 49A entirely different to the practice

of the Licensing Court which had existed for 1~
years, the practice which was adopted by the parties
to this appeal at the Full Court and before the

Licensing Court and did so without giving any

forewarning of their intention so to do. I can,

briefly, Your Honours, outline what was the previous

position.

Under section 49A, the Licensing Court took

the view that it first held a preliminary hearing

where it decided or decided not to grant permission

to remove the licence subject to cogent objections.

There would then be a second hearing at which the

objectors would present their objections to the

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proposed removal, that is to remove it from the

place, and, indeed, if necessary, to the spot

to which it was to be removed.

At the hearing, the applicant here took the

view that no evidence had been called by the

applicant for removal, that is, the repondents

here other than the second respondent, which would

justify a removal pursuant to what is called the

first part of section 49A.	They failed in that
view. His Honour ordered the removal.	In the

Full Court, the only ground argued by the parties
was that there was not any evidence to prove the

necessary matters in the first part of section 49A.

His Honour Mr Justice Dowsett who wrote the

judgment of the Court dealt with that briefly in

two parts of his judgment. I refer first to

page 26 of the record where he said, at the second

paragraph:

Before us, the appeal proceerled largely

upon the basis that the evidence before the

learned judge at first instance was directed

towards the question of whether or not the

proposed new site was preferable to the former

site. Authority, including the previous

decisions of Carter DCJ to which I have

referred and of this Court in the LENNON's

case to which I have also referred establish

that the exercise required by sub-s (1) is

to identify whether or not the situation of the premises renders them unsuitable in the

way there prescribed. Insofar as the question

for consideration by his Honour was the question

of the conditions precedent to removal, then

I think there may well have been much in

Mr Douglas's argument.

And then he deals, on the next page, page 27 of

the record, with the basis upon which he would

decide the case and says, at point 6 of the page: In a way, the basis upon which I would

decide this case was not argued before us,

as both sides accepted the practice which

has been established in the Licensing Court

over the years.

Just pausing briefly there, in an affidavit which

was filed, we believ~,yesterday by the respondents

to the appeal, of Glendon Francis Young, which

I hope Your Honours have, two points are made:

the first is the point with respect to perfecting the judgment of the Full Court - I will deal with

that briefly in a moment; the second point is

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made with respect to paragraph 3 of our outline

of our grounds of appeal, which appears as exhibit B

to Mr Young's affidavit, and particularly at

paragraph 3 where we argued under section 49A(l):

The Licensing Court has to be satisfied

that the licensed premises by reason of

their situation either -

and so on. Your Honours, that was no more than

a restatement of what was accepted by the parties

both at the Licensing Court and as His Honour

Mr Justice Dowsett said in the Full Court.

Your Honours, what the essence of the new

tests laid down by the Full Court is: there are

certainly two hearings but at the first the objector
to the removal of the licence from the old site
has no right to be heard whereas previously the

interpretation of the Licensing Court - and, we

would also submit, Your Honours, in the LENNONS

case of the Full Court was that there was such
a right for an objector to be heard; that has been

taken away.

Your Honours, the attitude of appeal courts

to courts below them deciding matters such as this
without argument, without matters being raised

before them, has been discussed on a number of

occasions. Might we refer firstly to the decision

of the House of Lords in HADMOR PRODUCTIONS V

HAMILTON, (1982) 2 WLR 322 - and I meant to get

the authorized report but I have handed up the

Weekly Law Report to Your Honours in any event,

(1983) 1 AC - and the passage in the book we have
given Your Honours is at page 337.

This was one of two caseB we can find where Lord Denning, to use his own word, was rebuked

by the House of Lords for doing his own res€arch,

again in his own words. This is the latter one.

His Lordship, Lord Diplock, at page 337, the passage

beginning just under letter D:

Under our adversary system of procedure,

for a judge to disregard the rule by which

counsel are bound has the effect of depriving
the parties to the action of the benefit of

one of the most fundamental rules of natural

justice: the right of each to be informed

of any point adverse to him that is going

to be relied upon by the judge and to be given

an opportunity of stating what his answer

to it is. In the instant case counsel for

Hamilton and Bould complained that Lord Denning MR

had selected one speech alone to rely upon

out of many that had been made in the course

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of the passage of what was a highly

controversial Bill through the two Houses

of Parliament; and that if he, as counsel,

had known that the Master of the Rolls was

going to do that, not only would he have

wished to criticise what Lord Wedderburn had

said in his speech in the House of Lords,

but he would also have wished to rely on other

speeches disagreeing with Lord Wedderburn
if he, as counsel, had been entitled to refer

to Hansard.

MASON CJ: There is no doubt that if a party is denied the

opportunity of presenting submissions on an issue

which is resolved adversely to him there is a denial

of natural justice which would warrant the grant
of special leave to appeal, if that was all and

perhaps it is a little surprising that in the

circumstances of this case the Full Court did not

offer your client the opportunity of presenting

submissions on the fourth point.

MR DOUGLAS:  Or, indeed, the other side as well, Your Honour.

MASON CJ: Yes, that is right. Indeed, one might have expected

that perhaps the matter would be restored to the

list for further argument but you are now confronted

with a decision against you. The question is:

is the decision on the point wrong? In other words,

there is no point in granting you special leave

to appeal if you are bound to fail in the appeal.

MR DOUGLAS:  Your Honour, we say two things to that: in fact

we won the appeal because the appeal was allowed

and the order of the court below was set aside

and the matter remitted to that court for further
hearing but on the basis on which the Full Court

now says it is to be heard which, we submit, is

wrong. We submit that the scheme of the section,

and might we take you to it, contemplates that

an objector is entitled to object to both the removal

from and the removal to.

MASON CJ:	Yes.	Would you elaborate that argument for us?
MR DOUGLAS:	Yes.	May I take you to section 49A.

Subsection (1), Your Honours, deals with the first

leg, so to speak:

If the Licensing Court is satisfied that the

licensed premises of a licensed victualler

by reason of their situation no longer meet

the needs of the public and the requirement
of the neighbourhood wherein they are situated

or the needs of that neighbourhood in cases

where -

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certain criteria are met -

the Licensing Court may upon the application

of the licensee and the owner of the premises

remove the license to such other site -

The next part which His Honour seems to rely upon

really is the part beginning over the page. Leaving

aside the formalities in the first two paragraphs

on that page, the section provides, in subsection (1),

that:

The Licensing Court -

(a) shall not hear and consider an application

..... why the license should not be removed -

unless show cause has been shown -

in the prescribed manner .....

(b) shall not determine to remove .....

(i) until it has heard and considered any

objection ..... by the Local Authority -

shall·not determine to remove -

(ii) if it upholds any objection or

representation made.

His Honour read that to mean that the only person

entitled to object at that stage is the local

authority and in doing so he must, in our submission,

have inserted before the word "made" and after 11 representation 11 in (ii) the word 11 so 11 • We would

submit, however, it is more than fairly arguable
when you turn to subsection (4) on the next page,

which is the general provision as to objections,

that such an interpretation was not necessarily

open to him.

Subsection (4) reads: 

An objection to the removal of a license

pursuant to this section -

which must include, we would submit, the removal

from and the removal to. His Honour describes

it in two removals -

may be made only by or on behalf of -

(a) the Local Authority -

we accept that -

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(b) an elector -

then, the person in our client's· position -

(c) an owner or licensee of existing licensed

premises situation in the neighbourhood in

which that site is situated.

There is no doubt that Mr Whitehouse does fit that

criteria. And then it specifies in:

(4A) An objection shall be lodged -

within a certain time -

give to the applicant a copy -

and then, may we take you down to clauses (4C)
and (4D). (4C) perhaps not so importantly but

(4D):

The Licensing Court shall not determine to

remove a licensed victualler's license under

this section -

referring to the whole of the section -

(a) until it has conducted the hearing referred

to in subsection (4C) or if there are no

objections to be considered until after the
date specified as the last day for their lodgment

in the published pursuant to subsection (3) - I will take you back to that -

(b) if it upholds an objection duly made 1n

accordance with subsection (4A) -

I have referred Your Honours to that -

(c) until it is satisfied that -

(i) the premises to which it proposes to

remove the license and the accommodation and

essential services ..... are complete and in

good order and condition;

(ii) upon removal of the license to those

premises the licensee will be able to commence

forthwith to carry on therein -

Your Honours, we say that it is not necessarily

so that subsection (1) - it is very hard to describe

it, Your Honours - (l)(a) on the second page of what

we have given you because there is already a (l)(a)

on the previous page.

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MASON CJ: It is on page 87 of the statute.

MR DOUGLAS:  On page 87, yes. The precedure in that, if

you like, subparagraph for hearing in the Licensing

Court necessarily excludes the hearing at that

stage of objections on behalf of persons other

than the local authority. The way His Honour disposes

of that is dealt with briefly by His Honour, firstly,

at page 24 of this record - 24 numbered in the

top right-hand corner. His Honour summarizes his

view of the section and then says:

When the section is seen in this light,

it readily appears that there is no question

of a "preliminary" hearing.	The issues heard
at the two hearings are quire distinct.	The

first is concerned with the need for removal;

the second is concerned with the appropriateness

of the proposed premises for removal thereto.

The only party other than the applicant who

is entitled to be heard on the initial application
is the local authority. This is no doubt

because, given the stringent circumstances

in which removal is to be permitted, it would

be inappropriate for a variety of regular

patrons to be heard in opposition to the removal
of licensed premises, such opposition being

based simply upon their own convenience.

But it may or may not be, with respect, maybe for

other cogent reasons.

It was no doubt thought that the local

authority would be the body most likely to

represent adequately the local interest.

Whil§t_ it might be appropriate to hear such

a representative body in opposition to an

application which will, after all usually

be motivated by the financial needs of the

licensee, it would be inappropriate to expect

such an applicant to have to meet the objections

of patrons who perceive themselves to have

something approaching a proprietary interest

in the location of their local hostelry.

Might we just refer back, again, then to the beginning of the section which deals with needing to show:

that the licensed premises of a licensed

victualler by reason of their situation no

longer meet the needs of the public and the
requirements of the neighbourhood -

which would seem to contemplate, in our respectful submission, objections from people from the public or in the neighbourhood distinct from the local

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authority referred to later on in the same

subsection. Your Honours, in our submission,

either the interpretation given by the Licensing Court to it is the correct interpretation - over the last 12 years - or an interpretation similar to His Honour's but which contemplates the hearing

of objections by objectors at the first stage is

correct. But we submit that the interpretation

given to it which precludes persons airing their

objections on the first hearing to the removal

from the site is a wrong interpretation of the

section. Your Honours, that question, as we say,

Tl2	was not ventilated at the appeal.
WILSON J:	What is the point of successive hearings if what

you say is right?

MR DOUGLAS:  We would not contend for successive hearing

so to speak. We contend for the first proposition

that there is a hearing before the Licensing Court

which makes a preliminary determination subject

to objections which is the procedure followed by

His Honour Judge Broad. In other words, the court,

on the basis of the application, determines to

remove it subject to cogent objections. Then there

is one hearing, in effect, of the objections.

MASON CJ:  But that seems a rather strange procedure, does

it not, to have a prima facie hearing first of
all followed by a final hearing in which objections

are considered.

MR DOUGLAS:  But it might be so - perhaps a better way of

putting it is this; that any interpretation of

the section which precludes an objector from a

hearing with respect to the first removal is an

incorrect interpretation. That is what His Honour

has done. He has allowed him in only at the stage

when it is a foregone conclusion that the licence

has been removed from point A, it is only a question

of where it goes at point B, be it the site chosen
or some other site.	And the first part of the

section, he says, is met only by the local authority

objecting if it wishes so to do. And we submit

that the general effect of subsection (4) to allow

objections cannot be overridden by the provisions
in the latter part of subsection (1) because it

contemplates in its broad terms objections being

made to both removals if they are fairly described

as that.

Your Honours, we cannot take it much further

than that. The other authorities on the list,

Your Honours, are similar cases where the courts have

intervened in cases where argument was not presented below because the Court did its own research and

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the last one, Your Honours, is the second CODELFA

case which deals with, we would submit, quite a

different situation. It is a case where, after
the decision in CODELFA, the parties came back
to the Court, or one of them did, seeking to expunge

certain of the orders the Court made.

MASON CJ: Yes, but that is a very different case, is it

not?

MR DOUGLAS:  A very different point, we would say, Your Honour,

yes. We would, perhaps, deal with that if necessary.

Your Honours, the earliest time that Lord Denning

was rebuked, as he said himself, was in 1958 in

the case of RAHIMTOOLA V NIZAM OF HYDERABAD.

WILSON J:  Your emphasis on the rebukes of Lord Denning is

to encourage us to rebuke the Full Court, is it?

MR DOUGLAS:  Oh no, Your Honour. I am just saying that that

is the word he used, of himself. He used that

word of himself in the case of GOLDSMITH V SPERRINGS

LIMITED,(1977) 1 WLR 478 at 486 where His Lordship

said:

I have been rebuked before for doing my

own researches. In particular in

RAHIMTOOLA V NIZAM OF HYDERABAD (1958)

AC 379. But -

unchastised, he said:

there is good precedent for it.

And he goes on to say why he was correct.

MASON CJ: Well, it seems more and more like an invitation

for us to chastise somebody else.

MR DOUGLAS: It is not meant that way, Your Honour. It is

an invitation for Your Honours to hear the matter,

hear the substance of the argument on the appeal

before the Full Court. We submit it would be inappropriate to send it back to the Full Court. They have expressed

a view on it already, a final view as to their

interpretation of the section. It is inappropriate

for it to go back there.

Your Honour, finally, might we say as to the

second point raised in thB affidavit of Mr Young,

the third member of the court, Mr Justice Dowsett,

left Australia within a couple of days of this

judgment being handed down and is still away and

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the time limit has gone for appealing, of course,

to this Court. We lodged an appeal in time but,

in any event, Your Honour, the rule which we perceive

to be contemplated there and upon which

reliance may be had in the second CODELFA case
appears to be a rule to apply to final appeal courts

as distinct from intermediary appeal courts but

we will deal with that if we have to, Your Honour.

MASON CJ: Yes, well, we will hear what the respondent has

to say.

MR COOPER: If the Court pleases, may we move immediately

to what we perceive to be the principal ground
which is sought to have the matter dealt with as

appropriate for special leave and that is the grounds

in grounds 1 to 3 of the draft notice of appeal

which, in our submission, raise justone issue, n8:mely
whether the Full Court was correct in holding that

the rights of an objector to object and to appear

to be heard given by subsection 49A(4) and
subsection 49C respectively of the LIQUOR ACT are

limited to those matters which properly and relevantly

relate to the establishment of the licence on a

proposed new site and an inquiry as to those matters

by the Licensing Court. May we submit, Your Honours,

that the decision of the Full Court on this issue

was correct and it is certainly attended with

sufficient ground to grant special leave. Secondly,

it does not demonstrate any misapplication of any

principle in the approach taken by the court to

the task of interpretation of the statute or in the interpretation reached. Thirdly, it raises

no question of general public importance as it

is limited to the operation in the future of the

practice and procedure in determining applications

under a local statute. Fourthly, it does not impact

upon or place in jeopardy any existing or future

licence nor limit any right to object to protect

any legitimate and relevant interest.

Your Honours, if we go to the decision specifically,

in our submission, the essence of the Full Court

decision was this, that there are two applications,

one designed to persuade the Court that removal

of the existing licence is desirable and the second,

to consider the appropriateness of the site to

which removal is proposed. The right of objection

does not arise until the first application is

determined in favour of the applicant. Thirdly,

the notice calling for objections relates to the
operation or establishment of a licence at the
new site. Fourthly, the rights of objectors relate

to the new site only and from that part of the process that relates to the second application

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and, thirdly, on a proper analysis of the different

applications and the different types of objector

rights, the old practice was wrong.

In our submission, that analysis is supported

by the wording in the structure of section 49A.

The first proposition is supported by the wording

of section 49A(l) which deals with the application

to remove that requires a degree of satisfaction.

The second part is supported by the opening words

of section 49A(2) which indicates that:

In considering the merits of such an application the Licensing Court shall

not be bound by the application as to
the site or premises to which it is
sought to remove the license or as to
the accommodation or services to be
provided in connexion with the premises

to which it is sought to remove the

license.

The next step, in the next paragraph of the subsection

is important, Your Honours, because it requires

as a condition precedent to the next step that:

If the Licensing Court is satisfied that a

license should be removed pursuant to this

section -

Once satisfied, the commission is instructed or

is to:

Determine the accommodation, services and

other matters considered by it to be

necessary at the site to which it

proposes -

and we stress at that point it is at this stage

that the Licensing Commission itself chooses and

proposes an alternative site at which to re-establish

the license -

to remove the license and shall prepare

specifications thereof and the following

subsections of this section shall apply

with respect to the removal of the license.

So that the analysis to that point is that as

between the two aspects of the removal, that is,

a degree of satisfaction and then removal to a

new stage, all of the procedures prior to the

final paragraph of subsection (2) of the section

relate to the question of the court being satisfied.

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What foll~ws in subsection (3) and subsequently, relates to the new site if the application is to proceed further. If we go back to the provisions

relating to - in paragra?hs (a) and (b) of the

fourth paragraph of subsection (1), in our submission,

it is clear that there is a statutory right to

the local authority which has relevant jurisdiction

over the site from which removal is sought and

that there are rights of objection given to the

local authority in relation to removal from that

site.

Your Honours, we would ask you to note in

(b)(i) and (ii) of that paragraph that there are

limitations placed on the court in coming to a

decision until the objection process has been

completed or if the objection - and we submit

in the context, that is the objection of the local

authority is upheld. These restrictions in almost

exact terms are repeated over in paragraph 49A(4D)(a)
and (b) and they provide a fetter on the licensing

Court in relation to the second approval. If we may

return Your Honours to subsection (3) of the section.

MASON CJ: Subsection which?

MR COOPER:  Sorry, 49A(3). The Cummission, having been directed

so as to speak, to choose a site and set a specification,

then requires:

The applicant to publish twice within a period

fixed by the Commission in a newspaper that

circulates in the neighbourhood a notice in a

form approved by the Commission calling for

objections to the removal of the license to the

site proposed.

And it is at that point, in our submission, that the

objections when they are called for - - -

MASON CJ:	We need not trouble you further.
MR COOPER	Thank you, Your Honour
MASON CJ:	Mr Douglas, do you wish to reply?
MR DOUGLAS:	No, Your Honour.
MASON CJ:	The Court is of opinion that the decision of the

Full Court of the Supreme Court is not attended with sufficient doubt to justify the grant of special leave to appeal.

MR COOPER:  I would ask for costs, if Your Honour pleases.

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MASON CJ: You cannot resist an order for costs, can you,

Mr Douglas?

MR DOUGLAS:	No, Your Honour.
MASON CJ:	The application is refused, with costs.

AT 3.35 PM THE MATTER WAS ADJOURNED SINE DIE

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