Wilson & Ors v Madden

[1992] HCATrans 363

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S78 of 1992

B e t w e e n -

LAWRENCE WILLIAM WILSON, COLES

MYER LIMITED, ANDREAS MICHAEL

TABERNER, PATRICIA RAE

GILLIGAN, GRACE BROS PTY LTD

and GARRY FRANCES O'DONNELL

Applicants

and

NERRYELLEN JOY MADDEN,
SUPERINTENDENT OF LICENCES,

CECIL ROY BRAHE, JAMES LAURENCE

SWANSON and PHILLIP HARVEY

Respondents

Application for special leave

to appeal

MASON CJ

Wilson 1 10/12/92

DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 DECEMBER 1992, AT 12.21 PM

Copyright in the High Court of Australia

MR A.G. WHEALY, QC: In this matter, if the Court pleases, I

appear with my learned friend, MR I.A.N. LAWRY, for

the applicants. (instructed by Freehill

Hollingdale & Page)

MR S.B. AUSTIN, QC:  I appear, Your Honours, with my learned

friend, MR J.F. KILDEA, for the respondents.

(instructed by Kenneth Hal Kinninmont).

MASON CJ:	Mr Whealy.
MR WHEALY:	If Your Honours please. Your Honours, we have

provided a list of authorities and I have, in any

event, four copies of the only two cases referred
to in the decision, which is the subject of the
application, together with a copy of the section of

the Liquor Act.

MASON CJ:	It is a question of construction of the statute, is it not?
MR WHEALY:	It is, in fact, a matter which has as its

context the Liquor Act, Your Honours, but it is not

a matter that is particularly confined to

the construction of section 146 of the Liquor Act, that section being in the same form as a number of

statutes which provide for appeals limited to

questions of law. As Your Honour sees from the

section, it provides for an appeal for a person

aggrieved on a question of law and provides in

subsection 146(2) that:

On the determination of an appeal ..... the

Supreme Court shall:

(a) remit the matter to the Licensing Court

for determination in accordance with the
decision of the Supreme Court.

That is the only relevant limb of the section that operates in the present case and it is - - -

GAUDRON J: But it is "the matter". It is not bits and

pieces of the matter; it is not issues. It is the

matter that is remitted.

MR WHEALY:  Yes, that is so, Your Honour, although our

submission has been throughout this case that the

parameters or confines of what is to happen to the

case when it goes back before the primary or

inferior tribunal are circumscribed by the opinion

of the court. If I might just give Your Honour an

example of what I mean by that: that in the

standard case where there is simply a set of facts

found by an inferior tribunal, or court, and a

determination made, the statement of the existence

Wilson 2 10/12/92

of an error of law will not normally require that

the facts be re-evaluated.

On the other hand, there may be cases where

the error of law is so manifest and so contrary to

the correct construction that the relevant facts

may not have been examined at all and in such a

case the remitter of the matter to be determined in

accordance with the opinion of the court will

require that the factual situation be completely

re-evaluated. Now, within those two extremes, and

particularly - - -

GAUDRON J: Well, you say "require" but why do you say that

rather than "permit of"?

MR WHEALY:  Because the governing principle is that the

inferior court must act in accordance with the decision of the superior court. Your Honours,

could I perhaps - - -

GAUDRON J: But it may be acting in accordance with if it

acts in a manner which is permitted by.

MR WHEALY:  Yes. Well, Your Honour, we do submit the matter

is of general importance, but notwithstanding

having put it in that way, no doubt each case, with

the appropriate response from the inferior court,

will differ according to the matter that is

remitted to it and the expressions of opinion
regarding that matter. Where you have multiple

issue litigation, such as in the present context,

one could well imagine the superior court informing

the court below that certain issues, for example,

the case might involve two issues; one, whether

particular premises were in the immediate vicinity

of a place of public education and, secondly,
whether there was a need for the facility of a

licence sought in the application.

In the superior court, the court may say that

there was no error of law in relation to the first

question and that it was an open matter for the

court to find, but find an error of law in relation

to the second issue. Upon the remitter of that

matter to be determined in accordance with the

decision of the court, it would be our respectful

submission that it would not be open or permitted -

in fact it would be contrary to the decision of the

superior court for the inferior court to address

anew as if there were a rehearing de novo, the

issue upon which it had been found that there was

no error of law.

On the other hand, it would be the duty of the

inferior court to act in accordance with the

supreme court's decision to redetermine or

Wilson 10/12/92

re-evaluate the matter in which an error had been

found, and it is in that sense that I put to

Your Honour that the parameters of the duty of the inferior court are determined by the opinion of the supreme court which itself may deal with multiple issues without there being any need for separate

orders to be made in respect to those issues.

The point of general importance that the

applicant would submit arises, is this: whether

the finding by a superior court of error of law,
entitles the court or tribunal below, to which the
opinion is remitted, to approach the matter de

novo, or whether, on the other hand, the tribunal must regard itself as bound to operate within the

confines of the opinion expressed by the superior

court.

Now, Your Honours, the way in which that

matter arises in the present case, of course, is in

relation to the Liquor Act and to a particular

circumstance in the Liquor Act, but we would

respectfully submit that it would have general

application to every type of appeal, whether that
created by a New South Wales statute, or more

broadly by Commonwealth legislation or by the

legislation of other States, and the expression of

opinion that emerges from the decision of the Court

of Appeal here is encapsulated in

Mr Justice Handley's decision at page 98, at

line 10, and it is a decision with which

Mr Justice Kirby agreed, and he said:

In my opinion the majority of the

Licensing Court were entitled to reverse

findings of fact made by them in their first

decision.

He went - at the bottom of the page at line 25, he

said:

the position in my opinion is that, in the

words of Moffitt Pin Martin v Green (1984)

NSWLR 148 at 154, "the magistrates'

jurisdiction was to rehear the case and hence

review the facts."

DEANE J: Mr Whealy, can I divert you?

MR WHEALY:	Yes.
DEANE J:	Can I refer you to page 93, the paragraph in the

middle of that page and there is a paragraph to the

same effect in Justice Handley's judgment, pages 99

to 100? Well now, why, in the circumstances of

this case, with all its background, does not what

is said in those paragraphs produce a consequence

Wilson 10/12/92

that it would be quite contrary to the interests of

the administration of justice to grant leave to appeal for the purpose of setting off yet a new

round of these interminable proceedings?

MR WHEALY:  May I answer it this way, Your Honour, that we

lost the appeal because of the matters that

Your Honour has referred to, especially, perhaps,

the matters that Mr Justice Mahoney refers to in

page 93. We - - -

DEANE J: Except that would not be involved. I mean, that

lies before one comes to the question, "What is the

effect of section 46?"

MR WHEALY:  Your Honour, if I am right in submitting to the

Court that, with great respect, Their Honours were

wrong in relation to the two matters that are

mentioned there, we would not have lost the appeal,

in my respectful submission. Secondly, the very

same matters, if incorrectly determined by the

court, are the only matters which muddy the water

and make this an inappropriate matter for special

leave, which I concede they would, if they are

viewed as even prima facie correct, but we

respectfully submit they are not, even on a prima

facie level, correct statements of what happened in

this litigation and that, therefore, the point

which I submit is a proper one for leave, stands

really unperturbed by those considerations, or may

stand unperturbed by those considerations.

If, on the other hand, Your Honour is of the

view that at even the most prima facie of levels

those matters do stand in my way of success then,

of course, I would accept what Your Honour says to

me. And I say that they do not perturb the general

point or they do not literally muddy the waters of
the point that is sought to be raised in the
appeal.

DEANE J:  I was not suggesting that that would prevent the

question under section 146 being dealt with.	I was
simply suggesting it is a strong ground for refusing leave.

MR WHEALY: Well, Your Honour, I would concede that. The

way in which the litigation proceeded did result in

a situation where the pure question of law

otherwise thrown up must appear at least clouded by

those matters. Nevertheless, I submit that if

Your Honours were of the view after looking at the

matter just a trifle more closely that those

matters, at least at a prima facie level, had no

substance to them, Your Honours might then perceive

that this was an appropriate matter notwithstanding

for the grant of special leave.

Wilson 10/12/92

GAUDRON J: But is not that matter unrelated to the terms of

section 146, in any event, given that - - -?

MR WHEALY: It is unrelated to it, yes.

GAUDRON J: But there is power to receive fresh evidence.

MR WHEALY:	Yes, that is true.
GAUDRON J:	You say that is only in relation to the discrete

issue that was the subject of the appeal.

MR WHEALY:  Yes, precisely, Your Honour. It had nothing to

do with what has been called here "the threshold

question" which was whether the people from one

part of the shopping area of Queanbeyan were likely

to move to another in order to do their liquor

shopping there. That fact was found in our favour

at the preliminary hearing; the magistrate saying

that in no circumstances would people make that

journey because it was inconvenient for them to do

so.

GAUDRON J:	Then I wonder why you tendered the evidence.
MR WHEALY:	The evidence that was tendered arose necessarily

in relation to the second point. That was the

evaluation for the need for a licence at the

proposed site having regard to the location and

existence of liquor outlets already existing.	One
of those outlets was going to close down - - -

GAUDRON J: What you are saying is that although there are

different issues which bear on the ultimate result,

one may be determined by reference to

considerations or facts at one time, six months

beforehand; another by reference to facts at a

later time, and so on.

MR WHEALY:  No, Your Honour, with respect, I am not saying

that.

GAUDRON J: That must follow.
MR WHEALY:	I am saying that the question of whether there

was going to be a likely closure of licence in the

township obviously had an effect on whether there

was a need for a new licence in the township. That

was the issue to which it was tendered. That was

the basis on which it was accepted and that is the basis on which the lower court utilized that fact.

It was never tendered, never addressed, never

utilized by the court below as bearing upon the

issue of whether people would find it convenient to

walk from the place, I think, called the Jewel

Supermarket to the Woolworths Supermarket. It did

not bear on that. It had no bearing on that

Wilson 6 10/12/92

whatsoever. It was not relevant to it and it was

not accepted on the basis of being relevant to that

issue.

What the court had found was that people would

not walk from one place to the other because it was

inconvenient and, Your Honours, as to the second

point, that Mr Justice Mahoney raises at page 93,

His Honour says that in his opinion the court:

understood and the parties acted on the basis

that that Court should re-examine that -

threshold question. Now, if they did, then I

agree, as Mr Justice Deane has put to me, that that

would remove this from the position of being an

appropriate matter for special leave, but it is our

respectful submission, shortly put, that a cursory

examination, which commences at page 112 of the

appeal book, and sets out the manner in which the

matter did proceed before the Licensing Court, when

the matter was remitted to it, shows, not only was

that not so, but the position was treated totally

in the opposite manner. And if I may take

Your Honours to that page, 112, line 25, where the

submission of mine begins by reference to

Mr Justice Sully's decision who had said:

"I cannot say that it was not open to the

majority to come to that conclusion of fact".

That was the fact as to whether people who shopped

at Jewels would go to Woolworths or not. Then at

page 115 at line 45, the ,3ubmission is taken up

again, repeated with the words:

The first one as I have said, he refused to

intervene and he said, your Worships, was a finding of fact, that this licence would in

fact not be convenient to Jewels customers.

He refused to interfere with that finding.

And then, on the next page 116, line 13, where the

submission was put that what the court had to do:

that the court has to evaluate ..... the needs of the members of the public who are regular

customers of the Woolworths supermarket.

That has nothing to do with the people who shopped

exclusively at Jewels. There was no repost from
the court about that statement - that those
statements which indicated the way in which

Mr Justice Sully's decision was to be read and it was not really a question of putting submissions to

them, but to tell them that that was what the

decision required them to do.

Wilson 10/12/92

My learned opponent at the time was

Mr Holt, QC, and his submission on the point is to

be found at page 123 at line 25 and Your Honours

will see that he accepted that as the position as

we did and as the court did, but what he said about

it was this, he says:

when the court is evaluating the members of

the public who are regular customers of

Woolworths Supermarket, you don't just take that figure that -

was talked about - that should read 10,950 persons,

not dollars - customers, because, he says:

the evidence of -

some of the witnesses -

was that they shop at Woolworths and they also

shop at Jewel.

More significantly, the second-next sentence, where

he said:

I don't cavil and can't cavil at that finding

of fact ..... that people wouldn't -

if I may interpolate or summarize, move from Jewels

to Woolworths. But he said that does not mean:

they don't shop in both -

and at the bottom of page 124 and the page at 125 -

the last sentence at 124 line 50, Mr Holt said:

So what I'm really saying, your Worships, is that this tends on evaluation of the need for

a licence at Woolworths to bring in Jewel

because in fact the uncontradicted

evidence ..... is they shop at both.	So you
really are looking back at the figure of
something like 22,000 -

and not 11,000. And that submission, Your Honours,

recognized and accepted that for those people who

shopped at Jewels and who did not shop at

Woolworths and about whom there had been a finding

that they would not go to Woolworths to buy liquor,

and in respect of which factual findings - the

supreme court had said there was no error of law

and it was an open finding - those submissions

accepted that proposition precisely, but sought by,

with great respect, an argument that, of course,

could not be sustained, to argue that perhaps the numbers could be swelled by looking at people who

shopped at both facilities but, of course,

Wilson 10/12/92

mathematically that was an argument which would

people had shopped at Jewel also shopped at	have led to an absurd result, because if all of the remained at 11,000 and not 22,000. It was
mathematically impossible for that submission to be
correct, and with very great respect, their learned
magistrates did not accept it.

That is not what they did. What they did,

Your Honours - they did not accept that confession

and avoidance of the position accepted by Mr Holt,

but what they did do at page 32, at line 10, was to

say:

The Court has re-examined that aspect of the

applicant's case -

and, fairly read, that referred to the matters that

were in the preceding paragraph, namely whether of

not people would go from Jewels to Woolworths if

they did not otherwise shop at Woolworths, and the

court said:

it is apparent that notwithstanding the

Court's views -

which I read to mean original views -

the evidence was to the contrary.

So that they reversed themselves by re-examining

the evidence on a matter which was not remitted to

them. Now, as Your Honour says to me, of course,

the matter is remitted. There is no doubt about

that but, what has to be done when the matter is to

be remitted is the question raised by this appeal

and, in my respectful submission, although it is

only Mr Justice Handley's statement of the law on

the matter, at page 98, whilst it is perhaps a very

light leaf that drops into the pond of general

litigation, the State does have the capacity to

create ramifications for litigation generally

because there are many appeals of this kind and, in

my respectful submission, if Your Honours accept
what I have said, that the two matters that stood

in our way and caused us to fail in the Court of

Appeal, at a prima facie level, may be seen in the

light in which I have put them, thus leaving the

central point undisturbed, it would be our

submission that this is an appropriate case for

leave.

MASON CJ:  The Court need not trouble you, Mr Austin.

The question sought to be argued in the

proposed appeal is whether the Licensing Court,

Wilson 9 10/12/92

after a decision given by it is set aside by the hearing further evidence to reverse findings of

fact in the decision so set aside. The Liquor Act

does not contain a provision specifically dealing

with that particular question. Whether such a

power is to be implied as a matter of construction

of the Act, though it is of some importance in the

context of licensing matters, is, in the

circumstances of this case, including its long

history, not a question which this Court considers

it appropriate to take up. The application for

special leave to appeal is therefore refused.

MR AUSTIN:	I make an application for costs.
MASON CJ:	You do not resist that?
MR WHEALY:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 12.47 PM THE MATTER WAS ADJOURNED SINE DIE

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