Woolworths Ltd v The Commissioner of Police
[2013] WASC 413
•15/11/13
WOOLWORTHS LTD -v- THE COMMISSIONER OF POLICE [2013] WASC 413
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 413 | |
| Case No: | GDA:2/2013 | 14 NOVEMBER 2013 | |
| Coram: | EDELMAN J | 15/11/13 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | WOOLWORTHS LTD THE COMMISSIONER OF POLICE |
Catchwords: | Liquor licensing Application for a liquor store licence Application refused by the Liquor Commission Failure by the Liquor Commission to afford procedural fairness to Woolworths |
Legislation: | Evidence Act 1906 (WA) Liquor Control Act 1988 (WA) |
Case References: | Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510 FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 Giretti v Commissioner of Taxation (1996) 70 FCR 151 Hancock v Executive Director of Public Health [2008] WASC 224 Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Lisafa Holdings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 Minister for Immigration and Citizenship v Szgur [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506 R v Nutter [1988] 2 Qd R 581 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Sullivan v Department of Transport (1978) 20 ALR 323 Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Titan v Babic (1994) 49 FCR 546 University of Ceylon v Fernando [1960] 1 All ER 631 Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram : MR J FREEMANTLE (CHAIRPERSON)
- MS H COGAN (MEMBER)
MS B LONSDALE (MEMBER)
File No : LC 12 of 2013
Catchwords:
Liquor licensing - Application for a liquor store licence - Application refused by the Liquor Commission - Failure by the Liquor Commission to afford procedural fairness to Woolworths
Legislation:
Evidence Act 1906 (WA)
Liquor Control Act 1988 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr J A Thomson SC & Ms R L Conder
Respondent : Mr P D Spragg
Solicitors:
Appellant : Cullen Babington Hughes
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110
Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Giretti v Commissioner of Taxation (1996) 70 FCR 151
Hancock v Executive Director of Public Health [2008] WASC 224
Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Lisafa Holdings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225
Minister for Immigration and Citizenship v Szgur [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506
R v Nutter [1988] 2 Qd R 581
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Sullivan v Department of Transport (1978) 20 ALR 323
Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Titan v Babic (1994) 49 FCR 546
University of Ceylon v Fernando [1960] 1 All ER 631
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227
Table of Contents
Determinations by the Liquor Commission under the Liquor Control Act 6
The requirement of procedural fairness in the Liquor Control Act 8
The application and its determination by the Liquor Commission 10
The intervention by the Commissioner of Police 12
The reasons of the Liquor Commission 13
The appeal to this Court and the additional evidence 14
Ground 1: Procedural fairness in relation to the geographical area 16
(i) Representations and reliance on locality prior to the hearing 18
(ii) Discussion of locality at the Liquor Commission hearing 20
(iii) The role of locality after the hearing 23
Consideration of ground 1 23
(i) Whether the Liquor Commission should have confined itself to the manner in which
the case had been presented prior to the hearing 24
(ii) Whether the Liquor Commission should have adjourned the proceedings 29
(iii) Overall conclusion on ground 1 33
Ground 2: Procedural fairness in relation to the Pereira Article 34
Conclusion 39
- EDELMAN J:
Introduction
1 This is an appeal by Woolworths from a decision of the Liquor Commission. The Liquor Commission denied Woolworths a liquor licence for a proposed 'Dan Murphy's Joondalup' liquor store in Edgewater near Joondalup. Woolworths appeals from that decision. Woolworths says that the Liquor Commission denied it procedural fairness in two ways:
(i) by relying upon a broader 'locality' in its consideration of the proper development of the liquor industry (s 5(1)(c) of the Liquor Control Act 1988 (WA)) than the 3 km radius from the proposed site which Woolworths had assumed as the locality in its application; and
(ii) by relying upon matters contained in an article which was described as the Pereira Article.
2 Woolworths submitted that it was not given notice, or adequate notice, of either (i) or (ii). I do not accept the submissions by senior counsel for Woolworths in relation to (i). But no notice at all was given in relation to (ii). This was a matter which might have made, and might make, a difference to the outcome of the application. The appeal should be allowed on this ground.
3 These reasons are structured as follows:
Determinations by the Liquor Commission under the Liquor Control Act: [4] - [14].
The requirement of procedural fairness under the Liquor Control Act: [15] - [24].
The application and its determination by the Liquor Commission: [25] - [31].
The intervention by the Commissioner of Police: [32] - [35].
The reasons of the Liquor Commission: [36] - [43].
The appeal to this Court and the additional evidence: [44] - [51].
Ground 1: Procedural fairness in relation to the geographic area: [52] - [121].
Ground 2: Procedural fairness in relation to the Pereira Article: [122] - [145].
Conclusion: [146] - [156].
Determinations by the Liquor Commission under the Liquor Control Act
4 The licensing authority for an application or matter to be determined by the Liquor Commission under the Liquor Control Act is the Liquor Commission.1
5 Sections 38(1) and 38(2) of the Liquor Control Act provide that an applicant for the grant of a licence 'must satisfy the licensing authority that granting the application is in the public interest'.
6 Section 33(1) of the Liquor Control Act provides that subject to the Act, the licensing authority has an absolute discretion to grant or refuse an application under the Act on any ground, or for any reason, that it considers in the public interest.
7 Section 33(2)(a) provides that an application may be refused, even if the applicant meets all the requirements of the Act.
8 The matters to which the Liquor Commission may have regard in determining whether granting an application is in the public interest include, but are not limited to, the following matters listed in s 38(4):
(a) the harm or ill-health that might be caused to people, or any group of people, due to the use of liquor; and
(b) the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated; and
(c) whether offence, annoyance, disturbance or inconvenience might be caused to people who reside or work in the vicinity of the licensed premises or proposed licensed premises; and
(d) any other prescribed matter.
9 There has not been any other matter prescribed under s 38(4)(d).
10 In relation to the breadth of the concept of the 'public interest' by which the Commission makes its determination, Buss JA explained the following in Woolworths Ltd v Director of Liquor Licensing:2
It is not uncommon for statutes to provide that a decision-maker shall or may take certain action if 'satisfied' of the existence of specified matters.3 The expression 'in the public interest', when used in a statute, imports a discretionary value judgment.4 If the statute provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion by reference to the criterion of 'the public interest' will ordinarily be confined only by the scope and purposes of the statute.5
11 Section 5 of the Liquor Control Act sets out primary and secondary objects of the Act. Under s 5(2), in carrying out its functions under the Act, the Liquor Commission 'shall have regard to the primary objects of the Act and to certain secondary objects'.
12 Under s 5(1) of the Act, the primary objects are as follows:
(a) to regulate the sale, supply and consumption of liquor; and
(b) to minimise harm or ill-health caused to people, or any group of people, due to the use of liquor; and
(c) to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
13 The secondary objects described in s 5(2) include facilitating the use and development of licensed facilities, reflecting the diversity of the requirements of consumers in the State; providing adequate controls over the sale, disposal and consumption of liquor; and providing a flexible system, with as little formality or technicality as may be practicable, for the administration of the Act.
14 Under s 5(3), if, in carrying out any of its functions under the Act, the licensing authority considers that there is any inconsistency between the primary objects and the secondary objects, the primary objects take precedence.
The requirement of procedural fairness in the Liquor Control Act
15 As all counsel submitted, it is uncontroversial that the Liquor Commission is bound by the requirements of procedural fairness.6 But the requirements of procedural fairness and the content of a duty of procedural fairness are not monolithic.
16 In Kioa v West,7 Mason J said that where statute makes provision for a decision to be made, in the making of the decision 'the application and content of ... the duty to act fairly depends to a large extent on the construction of the statute'. The reference to 'construction' of the statute must be understood broadly in the process of ascertaining the content of the 'duty' to 'act fairly'. It will include implications to be drawn from the text, and context, of the statute including 'the scope and purpose of the statutory enactment'.8 As Kitto J explained, 'what that procedure is to be in detail must depend on the nature of the tribunal' and full effect must be given 'to the particular statutory framework within which the proceeding takes place'.9
17 In Minister for Immigration and Citizenship v Li,10 a joint judgment of Hayne, Kiefel and Bell JJ recently enunciated the central role of construction of the statute in determining the content of a requirement to act reasonably in the exercise of statutory discretionary power. Their Honours emphasised that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably11 and that the legal standard of reasonableness must be the standard indicated by the true construction of the statute.12
18 Many of the procedural processes for decision making by the Liquor Commission in the Liquor Control Act emphasise the informality, desire for efficiency and power of the Liquor Commission to control its own procedure. For instance, the Liquor Commission is required to deal with an application 'on its merits, after such inquiry as the [Commission] thinks fit'.13 The Liquor Commission is required to act 'without undue formality'.14The Liquor Commission is to act 'as speedily and with as little formality and technicality as is practicable'.15 The Liquor Commission may 'obtain information as to any question that arises for decision in such manner as it thinks fit'.16 The Evidence Act 1906 (WA)does not apply to the proceedings.17 And the Liquor Commission 'is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that the licensing authority adopts those rules, practices or procedures or the regulations make them apply'.18
19 Each of these matters emphasises the statutory intention that the Commission exercise its powers expeditiously, efficiently and without undue formality. These concerns must also be understood in the context of the broad nature, described above, of the Commission's discretionary power to decide applications by reference to the public interest.
20 These goals of expediency, efficiency and informality are not unbounded. The Liquor Control Act refers to undue formality. Although the Liquor Commission should act without regard to technicalities and legal forms, it must also 'act according to equity, good conscience and the substantial merits of the case'.19 In addition, there is an express obligation in s 16(11) as follows:
Subject to subsections (8) and (9) and section 30, the licensing authority shall ensure that each party to a proceeding before it is given a reasonable opportunity to present its case and, in particular, to inspect any documents to which the licensing authority proposes to have regard in making a determination in the proceedings and to make submissions in relation to those documents. (Emphasis added).
21 Section 16(8), s 16(9) and s 30 broadly concern the usually private nature of the hearing; the power of the Liquor Commission in private hearings to give directions as to matters including the persons who may be present; the publication and disclosure of evidence; and confidential police information.
22 Senior counsel for Woolworths pointed to a decision of the Full Federal Court in which it was explained that the duty of procedural fairness will ordinarily require:20
(i) that a party affected by a decision be given the opportunity of ascertaining the relevant issues;21 and
(ii) that a decision maker identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made, and that a decision maker advise of any adverse conclusion which has been arrived at and which would not obviously be open on the known material.
23 The High Court of Australia has approved the formulation of (i) as an ordinary incident of procedural fairness,22 and has suggested that there may yet be cases which 'would yield to analysis' in terms of (ii).23
24 I accept that both of these matters are incidents of procedural fairness encompassed by the structure of the Liquor Control Act, and implications from its terms, including the express terms of s 16(11) which required the Liquor Commission to ensure that Woolworths had a reasonable opportunity to present its case and a reasonable opportunity to make submissions in relation to documents to which the Liquor Commission proposed to have regard.
The application and its determination by the Liquor Commission
25 On 19 December 2011, Woolworths made an application for a conditional liquor licence for the Dan Murphy's store.24 Woolworths also sought development approval to use the premises as a liquor store.25
26 Between 19 January 2012 and 7 February 2012, various persons made objections to the application. The Liquor Commission concluded that none was made out. The objections were struck out under s 74 of the Liquor Control Act.26
27 On 1 February 2012, the Commissioner of Police lodged a notice of intervention.
28 On 17 July 2012, the Director of Liquor Licensing, acting under s 24 of the Liquor Control Act, referred the application to the Liquor Commission for hearing and determination.27
29 On 5 September 2012, the Liquor Commission wrote to Woolworths. In that letter, the Liquor Commission made various programming directions for submissions prior to the hearing. The Liquor Commission also explained that in accordance with its procedures, 'all material which the Commission will have regard to in these applications will be available for viewing by the parties to the proceeding at the offices of the Liquor Commission' except for redacted parts of four specified documents.28
30 On 19 November 2012, the Liquor Commission, constituted by three members, conducted its hearing of the application. The parties represented before the Liquor Commission were Woolworths and the Commissioner of Police (as intervener).
31 The material before the Liquor Commission was voluminous. On behalf of Woolworths, the Liquor Commission received a substantial Public Interest Assessment as well as the following:
(i) a report and supplementary report by MGA Town Planners;
(ii) a report by Canstar Blue on the consumer survey results;
(iii) a report by Caporn Services on Health and the Environment;
(iv) a 'secret shopper survey';
(v) a summary of survey questionnaires to which 40 responses were given;
(vi) a petition register, signed by 1,675 customers in support of the application;
(vii) details of the nature of the vicinity (radius of 200 m) and the locality (an assumed radius of 3 km) of the premises and details of roads and traffic and parking in the vicinity and the locality, together with relevant plans and maps including a plan of the centre;
(viii) details of the demographics and social health of the locality and the 12 existing packaged liquor outlets in the 3 km locality (of which one is a 'club' licence);
(ix) details of the size of the premises (trading area of approximately 1,128 m2 which include a 'fine wine' retail area of 168 m2, a cool room area of 71 m2 and a non-trading area of 259 m2 comprised of storage, offices, plant room and staff amenities;
(x) a code of conduct, harm minimisation policy (management plan), house management policy, the applicant's responsible buying charter and the applicant's policy relating to 'secondary supply'; and
(xi) statements of 'witnesses', essentially in support of the application.
The intervention by the Commissioner of Police
32 The Commissioner of Police intervened in the proceedings. The Commissioner did not do so to object to the grant of the licence. But nor did he support the grant of the licence. He made submissions before the Liquor Commission, drawing the attention of the Commission to various matters which were relevant to the broad assessment of the public interest that the Liquor Commission was required to undertake.
33 As the Liquor Commission explained, the Commissioner of Police did not support the application for two reasons:29
(1) There were already sufficient liquor outlets in the area to satisfy the requirements of the public; and
(2) If the application were to be granted it would likely negatively impact on the amenity of the locality.
34 As to (2), the Liquor Commission summarised the grounds of the Commissioner of Police's intervention as including that 'a small percentage change in availability and access to alcohol through liquor stores is likely to have an impact on alcohol related harm in the local community' and the police database 'reveals that there is already existing alcohol related harm occurring within the area of the proposed premises'.30
35 On the appeal to this Court, the Commissioner of Police maintained the stance that he did not object to the grant of a licence. Instead, his counsel made legal submissions in the absence of any other party or contradictor.31 Those submissions were of considerable assistance to the Court.
The reasons of the Liquor Commission
36 On 28 March 2012, the reasons of the Liquor Commission were delivered by the Chairperson. The application for a liquor licence was refused.
37 The Liquor Commission concluded,32 in Woolworths' favour, that there was no proposed liquor store within a 3 km radius which provided customers with:
(i) a wide variety of choice from a range of retail packaged liquor;
(ii) excellent facilities in well configured purpose built premises;
(iii) responsible price competitiveness; and
(iv) very high management standards.
38 The Liquor Commission referred to the locality guideline published by the Director of Liquor Licensing which, the Liquor Commission said, referred to a radius of 3 km from the proposed liquor outlet. However, the Liquor Commission concluded that since Woolworths' application was for a 'destination' liquor store, the purpose of which is to draw custom from a much wider geographical area, the concept of locality in this context meant the geographical area from which the proposed Joondalup store might be expected to draw custom.33
39 Consequent upon this wider approach to locality, the Liquor Commission found that it was not consistent with the proper development of the liquor industry to establish a Dan Murphy's style liquor store in the proposed location.34 The Liquor Commission explained that there are 'other large outlets providing a diverse range of product through Dan Murphy's Currambine and Woolworths Joondalup as well as a number of other convenience liquor stores in the locality'.35
40 The finding by the Liquor Commission concerning the inconsistency of the proposed outlet with the proper development of the Liquor Industry was preceded by a reference in par [53] to the first primary object of the Liquor Control Act being to regulate the sale, supply and consumption of liquor.36 After the finding about the inconsistency of the proposed outlet with the proper development of the liquor industry the Liquor Commission explained that37
[i]n addition to the Commission's comment at para 53, it is relevant to note the findings of a widely published and generally accepted body of academic research that has found a strong correlation between outlet density and alcohol related harm.
41 The Liquor Commission then referred to findings of a recent report entitled 'Access to Alcohol Outlets, Alcohol Consumption and Mental Health'. The lead author is Mr Gavin Pereira and the report was described in oral submissions at the hearing of the appeal as the Pereira Article.
42 The Liquor Commission said that the Pereira Article had found the following matters.
(i) The number of liquor stores in the neighbourhood was weakly associated with total alcohol consumption, but more strongly associated with harmful consumption.
(ii) There was strong evidence for a small association between residential exposure to liquor stores and harmful consumption of alcohol.
(iii) There was some support for a moderate sized effect on hospital contacts for anxiety, stress and depression.
43 The Liquor Commission also described the supplementary discussion in the Pereira Article concerning potential pathways between alcohol outlet density and mental health and the effect of outlet density on availability of discounted alcohol to those already predisposed to harmful alcohol consumption.
The appeal to this Court and the additional evidence
44 Section 28 of Liquor Control Act provides Woolworths with a right of appeal to this Court against the Commission's decision to refuse its application. Section 28(2) provides that no appeal lies against a decision of the Liquor Commission constituted by three members, except to the Supreme Court on a question of law.
45 Woolworths relies on two grounds of appeal. Each is considered separately.
46 Woolworths sought to adduce additional evidence in support of these grounds of appeal. That evidence was in the form of two affidavits from counsel who acted for Woolworths before the Liquor Commission. The evidence was significant in four respects.
47 First, the evidence included the Director of Liquor Licensing's 'Policy Directive' for liquor licence applications.38 This Policy Directive was referred to in the reasons of the Liquor Commission39 and it is relevant for this appeal.
48 Secondly, counsel before the Liquor Commission described his lack of notice that the Liquor Commission proposed to consider the public interest question by reference to a locality which was beyond the 3 km radius of the proposed site. In addition, he described previous applications in which he had been involved before the Liquor Commission involving proposed Dan Murphy's liquor stores which had relied on a 3 km radius.40 The lack of prior notice of this issue by counsel has some relevance, as I explain below. I am also prepared to accept that counsel's reasonable expectations about how the hearing might proceed, based on other hearings, also have relevance, although counsel before the Liquor Commission could not have expected that the Commission would necessarily follow the same approach as it had done on previous applications.
49 Thirdly, the evidence included a description of the evidence, or type of evidence, that Woolworths would have obtained and adduced in response to the Pereira Article and to the expansion of the locality to beyond the 3 km radius if Woolworths had been provided notice of these issues prior to the hearing.41 This evidence is relevant to the question, considered below, of whether a denial of natural justice would have made a difference at the original hearing, or whether the same result would inevitably follow on a new hearing.
50 Fourthly, the evidence explained that Woolworths has a lease over the site of the proposed premises, conditional upon the grant of a liquor licence, and a right to occupy the premises until December 2014. This is a matter relevant to the utility of this appeal because s 37(5) of the Liquor Control Act provides that a liquor licence of the type sought is subject to the condition that the licensee occupies, and retains a right to occupy, the licensed premises to the exclusion of others.
51 The application to rely upon this evidence, for these purposes, was not opposed. In light of these four aspects of the evidence and their relevance to the issues in this appeal, I granted Woolworth's application to rely on the additional evidence.
Ground 1: Procedural fairness in relation to the geographical area
52 As described above at [37], the Liquor Commission concluded that there was no proposed liquor store within a 3 km radius which provided customers with the benefits of the proposed store including the extent of choice, the nature of the facilities, the price competitiveness and the management standards.42
53 The first ground of appeal alleges that the Liquor Commission denied procedural fairness to Woolworths by relying on a wider geographical area than a 3 km radius for its consideration of the proper development of the liquor industry.
54 Although the Liquor Commission made findings in favour of Woolworths in relation to matters within an area of a 3 km radius, the Liquor Commission explained that its finding that these services were unavailable in the locality only applied if 'locality is narrowly defined geographically'. The Liquor Commission continued:43
The locality guideline published by the Director refers to a radius of 3km from the liquor outlet (Joondalup being more than 15 kms from Perth CBD). However the present application is for a liquor store described by the applicant as being a "destination" liquor store the purpose of which is to draw custom from a much wider geographical area.
55 The Liquor Commission explained that 'the concept of locality in the context of an application for a destination liquor store means the geographical area from which the proposed Joondalup liquor store might be expected to draw custom' (emphasis in original).44
56 The first ground of appeal focusses upon par [55] of the Liquor Commission's decision. That paragraph involved the following finding:45
the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry are currently adequately catered for in this locality by the existing providers of packaged liquor services.
57 The Liquor Commission explained that the existing providers to which reference was made in par [55] are 'Dan Murphy's Currambine and Woolworths Joondalup as well as a number of other convenience liquor outlets in the locality'.46
58 This was not the ultimate conclusion of the Liquor Commission. But it was an essential step in the process to that conclusion. The ultimate conclusion, expressed in the final two paragraphs of the reasons of the chairperson, was that it was not in the public interest to grant the application.
59 Woolworths' first ground of appeal complains that
(i) the Liquor Commission did not provide any or any adequate notice to Woolworths that the Commission proposed to consider the proper development of the liquor industry in any wider geographical area, and thereby denied procedural fairness to Woolworths; and
(ii) had the Liquor Commission provided adequate notice to Woolworths that the Liquor Commission proposed to consider the proper development of the liquor industry in any wider geographical area, Woolworths would have adduced further evidence regarding this issue which would have been materially relevant to the Liquor Commission's conclusion.
60 In order to assess whether procedural fairness was denied to Woolworths, it is pertinent to consider representations about locality which were made by the Liquor Commission to Woolworths at three stages: (i) prior to the hearing; (ii) at the hearing; and (iii) subsequent to the hearing.
(i) Representations and reliance on locality prior to the hearing
61 On 9 January 2012, Woolworths received a reply from the Director of Liquor Licensing in response to its liquor licence application.47 The letter from the Director of Liquor Licensing to Woolworths referred to a Public Interest Assessment to be prepared by Woolworths to address the matters in s 5 and s 38(4) of the Liquor Control Act.
62 In the letter, the Director also explained that Woolworths was required to undertake various actions including providing notice of the application to a number of bodies and institutes 'which may be situated in the locality of the proposed premises' (emphasis added). The Director explained that locality 'is defined as the area surrounding the licensed premises or proposed licensed premises as specified by the licensing authority, which is most likely to be impacted by an application if granted'.
63 The Director of Liquor Licensing has a 'Policy Directive' for liquor licence applications. The Policy Directive is designed to provide guidance on the possible content of Public Interest Assessment submissions by an applicant 'and the issues that an applicant should consider, including the reports decision makers may have regard to in forming their decisions'.48 It also provides that the licensing authority 'may request further information from the applicant should it be determined that specific aspects of the [Public Interest Assessment] need more consideration'.49
64 The Policy Directive defines locality with the near-identical words to those used in the letter from the Director of Liquor Licensing to Woolworths.
65 Counsel for the Commissioner of Police submitted that there was some ambiguity in the description of locality in the Policy Directive because prior to defining locality as the area surrounding the proposed licensed premises, the Policy Directive says that 'applicants must provide details regarding the community in the vicinity of the licensed premises (or proposed licensed premises) and any amenity issues in the locality'.50 Counsel for the Commissioner of Police submitted that the reference to amenity issues confined the reference to 'locality' in the Policy Directive to matters arising under s 38(4)(b) of the Liquor Control Act: 'the impact on the amenity of the locality in which the licensed premises, or proposed licensed premises are, or are to be, situated'. Counsel submitted that the Policy Directive was not concerned with the area surrounding the proposed licensed premises for the purposes of matters including 'the proper development of the liquor industry' under s 5(1)(c).
66 I do not accept this submission. The reference to locality in the Policy Directive as it was to be understood by Woolworths must be read together with the letter from the Director of Liquor Licensing to Woolworths. The letter from the Director used the near-identical definition and referred also to the objects in s 5 prior to the general comments about locality. The proper construction of those documents is that the 'locality' to which Woolworths' attention was directed is the area surrounding the proposed licensed premises for all purposes relevant under the Liquor Control Act. As counsel for the Commissioner of Police properly conceded, this was also the sense in which the Liquor Commission had understood the reference to 'locality' in the Policy Directive.51
67 In schedule 2 of the Policy Directive, the Director of Liquor Licensing provides that the 'locality definition' for Joondalup is a 3 km radius.52 This radius applies generally unless, depending on the nature of the application, the licensing authority determines that a broader locality should apply. The Policy Directive says that where53
an applicant considers that a licensing authority's determination of the locality in accordance with the policy is not suitable having regard to its intended nature of the business, the applicant may make submissions as to the appropriate size of the locality to the specific nature of the proposed business.
68 Woolworths relied upon the locality being a radius of 3 km from the site of its proposed liquor store54 in the following ways:
(i) Woolworths commissioned, and relied upon, a 15 May 2011 secret shopper survey based on a 3 km radius locality.55
(ii) Woolworths prepared and submitted a Public Interest Assessment dated 16 December 2011 which proceeded on the basis, '[i]n accordance with the Licensing Authority's policy' that the relevant locality was an area within a 3 km radius.56
(iii) Woolworths commissioned a February 2012 report from MGA Town Planners based on a locality of 3 km radius57 and a supplementary September 2012 report from MGA Town Planners also based on a locality of 3 km radius.58
(ii) Discussion of locality at the Liquor Commission hearing
69 The hearing before the Liquor Commission was held on 19 November 2012. It was not lengthy. It is transcribed in 27 pages of transcript.
70 At the commencement of the hearing, counsel for Woolworths asked the chairperson if there were any issues that the members of the Liquor Commission considered to be important so that he could address those. The chairperson replied:59
... taking account of the police intervention and the issues raised there, this is not going to be one where there are serious levels of harm, the Department of Health would not intervene. So harm is only going to be, I suspect, more of a peripheral issue than a central and turning issue.
The real issue, as I see it, and I think my fellow Commissioners, is that Dan Murphy's is establishing these large 1300, 1400, 1500-metre stores as destination liquor stores. There is a store less than five kilometres away which is classed as a destination liquor store. Therefore, the issue is: in the proper development of the liquor industry, do we really want large 1500-metre liquor stores put every four or five kilometres around the suburban area. So I think this really turns on the issue of the proper development of the liquor industry more than any other.
...
That is not to say ... that we are discounting the issues that the police have raised ...
71 The store which the chairperson described as fewer than 5 km away is the Dan Murphy's store in Currambine.60
72 In the context of his submissions concerning locality, counsel for Woolworths explained that there was 'difficulty' for him because 'How far do you take your radius when you're dealing with a Dan's?' He said 'So we've really concentrated on this'.61
73 The chairperson explained that he understood the difficulty but explained that if the size of the proposed store was 400 m2 then62
we would be saying, 'It doesn't matter what is at Currambine,' but 1500 metres [the proposal was actually 1300 m2], you say, 'Hang on, you're selling this as a major destination liquor store. Why do you need a major destination liquor store five kilometres away?' Five kilometres is relevant in that context because of the pure size of this.
74 The chairperson then confirmed with counsel that he was making himself clear. Counsel said that he understood and, on instructions, counsel explained that the 'general trade area' for a Dan Murphy's is a 5 km radius 'but as far as 10'. He accepted that 'Currambine would be included, but Currambine would overlap with this one'.63 The Chairperson also asked counsel 'Why do you need a major destination liquor store five kilometres away from Currambine?'64
75 On this appeal, senior counsel for Woolworths submitted that despite these exchanges, the Liquor Commission had not given notice to Woolworths that the Liquor Commission might consider a radius broader than 3 km for the purposes of assessing matters such as the proper development of the liquor industry. I do not accept this submission.
76 The exchanges between the Commission and counsel quoted above, at the start of the hearing, put counsel on notice that the Liquor Commission was contemplating a broader radius for all purposes of locality. Counsel at the hearing before the Liquor Commission also understood the exchanges in this sense. In his affidavit he explains that at the time of the hearing he 'estimated that it would have taken several months to obtain the further evidence necessary to address the new matters which the Liquor Commission raised at the hearing and then to have the application listed for a further hearing'.65
77 Although counsel was confronted with this issue possibly for the first time at the hearing, he was able to address some issues arising from the larger radius almost immediately. Seven examples are given below.
(i) Counsel explained, after taking instructions, that the trade radius for a Dan Murphy's store was between 5 and 10 km, so the trade radius for the Currambine store would overlap with the proposed Joondalup store.66
(ii) Counsel also explained that 5 km was the distance 'as the crow flies' but, after taking instructions, he explained that the driving distance was 7.7 km.67 He provided a map.68 He referred to a decision in the Licensing Court where a judge explained that anything more than a return trip of 14 km is not convenient.69
(iii) During the hearing the Liquor Commission asked counsel questions about the time taken to drive that distance. He answered that the best estimate was 12 minutes one way.70
(iv) Counsel also submitted that Currambine has quite a different demographic from Joondalup, with an immigrant population and its own big shopping centre. But there were limits to the submissions that counsel was able to make without notice. He said that he had not prepared to deal with whether the two suburbs 'pull from a different area in terms of the demographics'.71
(v) Counsel was also asked about 'the developed area that would perhaps logically migrate to Currambine, that area which would logically go to Joondalup, and how difficult the road system is when we're starting to talk about this issue of destination, how much effort [one would] make to go to a destination liquor store.'72 Counsel offered to mark that area on the map.73
(vi) Later in the hearing counsel was asked about the size of Dan Murphy's in Currambine and the size of the proposed Dan Murphy's in Joondalup. Counsel explained that both were 1,300 m2; not the biggest.74
(vii) Counsel also referred the Liquor Commission to witness statements from six witnesses who said that they did not want to shop in Balga or Currambine.75 He explained that the Dan Murphy's in Balga is 11.1 km by road.76
(iii) The role of locality after the hearing
78 On 22 November 2012, three days after the hearing, the solicitors for Woolworths wrote to the Liquor Commission. They explained their understanding that the chairperson of the Liquor Commission had perceived the physical distance between 'large format' liquor stores as being an important matter for the grant of a licence. They said that 'in order for there to be absolute certainty on this issue' they had instructed MGA Town Planners to prepare a map of the area and to predict with accuracy the distances between the various Dan Murphy's outlets. They enclosed that advice from MGA Town Planners.77 That advice included information that the road distance between the proposed Joondalup store and the existing Currambine store is 6.1 km (12.2 km round trip) with eight sets of traffic lights in between.78
79 The information provided by Woolworths to the Commission after the hearing was relied upon by the Commission in its reasons for decision.79
Consideration of ground 1
80 In order to decide whether the Liquor Commission denied procedural fairness to Woolworths by relying on a wider locality than a 3 km radius from the proposed store it is necessary to ask what the Liquor Commission should have done in order to ensure that Woolworths had a reasonable opportunity to present its case on this issue. Senior counsel submitted that there were two options open to the Liquor Commission.
81 The primary way in which senior counsel said that the Liquor Commission should have dealt with the issue was to have confined its consideration of the case to the manner in which it had been prepared by Woolworths. The alternative way in which senior counsel said that the Liquor Commission should have proceeded was to have adjourned the proceedings.
82 I do not accept either submission. Each is considered separately below.
(i) Whether the Liquor Commission should have confined itself to the manner in which the case had been presented prior to the hearing
83 The Liquor Commission was concerned that in the context of an application for a destination liquor store, a 3 km radius for the relevant 'locality' was not appropriate. Its own Policy Directive provided that 'depending on the nature of the application, the licensing authority [the Liquor Commission] may also determine a broader locality'.80 Woolworths' application involved a proposed store which it described as a 'destination' liquor store,81 that is, a store intended to draw custom from people coming to it as a destination. The Liquor Commission ultimately concluded that the consideration of the proper development of the liquor industry (an object of the Liquor Control Act) required consideration of a locality with a radius greater than 3 km.
84 The submission by senior counsel for Woolworths would ultimately mean that the Liquor Commission should nevertheless have confined itself to a consideration of those matters within a 3 km radius because that was the way the case was prepared by Woolworths82 even though:
(i) the Liquor Commission formed the view at the start of the hearing that a wider radius than 3 km might be necessary for the assessment of the proper development of the liquor industry;
(ii) the Liquor Commission enunciated that view to counsel for Woolworths; and
(iii) the Liquor Commission's own Policy Directive provided that depending on the nature of the application, it might determine that a broader locality should apply.
85 Arguably, if the Liquor Commission had adopted the approach which senior counsel suggested was required then the Liquor Commission would have fallen into jurisdictional error. But, in any event, no sufficient reason was provided by senior counsel for why the Liquor Commission should have taken this approach.
86 Perhaps unsurprisingly the searches, and researches, of senior counsel, and several junior counsel disclosed no authority where the requirements of procedural fairness have ever been construed to require a tribunal to take so limited an approach.83 I have no doubt that those searches were extremely thorough. I have found no such authority either. I doubt that any exists.
87 Senior counsel suggested that a 'critical factor' which should have led the Liquor Commission to have confined itself to a 3 km radius was that if the application did not succeed by late March or early April this year, the application would become nugatory because the lease for the proposed premises might have expired.84 This submission is incorrect.
88 Counsel for Woolworths before the Liquor Commission had explained to the Liquor Commission that Woolworths had 'a commercial problem'. He explained that its 'timeline for access' to the premises was March-April 2013 and 'then the landlord bangs us on the head or they cancel'.85 In affidavits on this appeal, counsel before the Liquor Commission reiterates only that there were 'significant problems' with the possible lapse of Woolworth's lease for the proposed premises in early March 2013.86
89 As it turned out, the landlord may have 'banged' Woolworths 'on the head' but the landlord did not 'cancel' Woolworths' lease. Woolworths now has the right to occupy the premises until December 2014.87
90 Even if commercial considerations could have been decisive for the Liquor Commission to be under a novel procedural duty to abstain from inquiring about, and relying upon, matters not raised prior to the hearing, there was not sufficient evidence before me which demonstrated that Woolworths would have been unable to produce adequate supplementary evidence on the matters it wished to address by, say, the end of January 2013.
91 Senior counsel for Woolworths pointed to the fact that a new report from MGA Town Planners was commissioned on 30 July 2013 and completed on 20 September 2013. But there was no evidence concerning whether it could have been concluded faster, in circumstances of greater urgency. Nor was there any evidence concerning whether it would have been sufficient for the report to have been abbreviated in some aspects to expedite delivery.
92 Further, even if commercial considerations were relevant to the asserted, but novel, procedural duty, and even if there were evidence that Woolworths could not have obtained sufficient evidence in order reasonably to present its case, there was no evidence that the Liquor Commissionwas aware that the time frame was too tight for Woolworths reasonably to present its case. How was the Liquor Commission to know the time which it would take for Woolworths to commission further expert evidence, perhaps from the same experts, on an urgent basis? How was the Liquor Commission to know the particular expert evidence which Woolworths considered necessary reasonably to deal with the issues which the Liquor Commission had raised? Further, as I have mentioned, at the oral hearing before the Liquor Commission counsel addressed questions on the subject of a broader radius very well. Subsequent to the oral hearing further written information was also provided by Woolworths' solicitors and received by the Liquor Commission.
93 Senior counsel for Woolworths then submitted that there was no evidence upon which the Liquor Commission could consider a radius of more than 3 km as relevant to matters such as the proper development of the liquor industry. He said that 'there is in fact no evidence about the diversity of product available from … Dan Murphy’s Currambine save for a very general statement in some of the police evidence'.88 This submission did not form an independent 'no evidence' ground of appeal. Instead, it was relied upon in support of the argument for the novel procedural duty which in this case was said to have required the Liquor Commission to confine its consideration of the locality to one with a radius of 3 km.
94 I do not accept that there was a complete absence of evidence concerning the finding by the Liquor Commission that there were 'other large outlets providing a diverse range of product through Dan Murphy's Currambine and Woolworths Joondalup as well as a number of other liquor stores in the [wider] locality'. The police report to which senior counsel referred related to the application for the liquor store licence for the Joondalup premises. Paragraph 2 of that report says:89
Woolworth Limited have recently opened a Dan Murphy's liquor store in the neighbouring suburb of Currambine, which is located 7.9 kilometres from the proposed new premises. As such, if people wanted access to specialty and more boutique alcoholic beverages, then this select customer base will have access to such products at the Currambine store. Therefore, whilst a proportion of the new store will be focused at providing a specialty service, a large proportion of the store will provide more stock standards/generic wines and beers which are readily available in all the other pre-existing local liquor stores.
95 During the hearing before the Liquor Commission, counsel described Dan Murphy's Currambine as having a floor space of 1,300 m2.90 The Liquor Commission also had the following evidence before it, including evidence from which inferences might be drawn about the content and nature of the product offering at Dan Murphy's Currambine:
(i) Woolworths' Public Interest Assessment which said that the 'Premises, as a Dan Murphy's, will offer the full range of Dan Murphy's services and facilities'.91
(ii) Dan Murphy's Fine Wine Guide92 and Dan Murphy's 'Recommended Cellar Release Wines' Guide93, both of which describe different wines available for purchase at Dan Murphy's stores.
(iii) An extract from Woolworths' 'Project WLG' Market Research dated 1 December 201094 which contains diagrams referring to the range of product supplied by Dan Murphy's stores and statements that 'Dan Murphy's is the only brand shoppers express genuine loyalty towards'.95
(iv) The results of the Canstar Blue Consumer Survey96 which include a table showing Dan Murphy's as having a five-star (the highest) rating for 'Range'.
(v) Dan Murphy's 'Discovery Guide' which provides a detailed guide of wines available at Dan Murphy's stores.97
(vi) A copy of an article entitled 'Outstanding Retailer of the Year 2012: Dan Murphy's'98 which contains the following:
· A statement of Mr Stephen Kulmar (retail consultant) that Dan Murphy's 'delivers the most dominant and well-considered product offering on the market'.99
· A reference of Mr Martin Smith, general manager of Dan Murphy's, to '[the] combination of a great product range with staff who know their stuff and a determination to make it available to the general public'.100
· A statement that the judges of the 'Outstanding Retailer' award 'raved about its wide range of product, nothing that the store stocked a good selection of overseas product that could be difficult to find elsewhere'.
(vii) A witness statement from Mr Martin Smith, general manager of Dan Murphy's Liquor stores,101 which describes the store configuration, layout and range of product of Dan Murphy's stores as 'unsurpassed by any competitor in Australia';102 states that 'Dan Murphy's outperforms all other packaged liquor outlets in terms of store facilities, services and product range';103 describes in pars 6.1 - 6.8, the Dan Murphy's product range;104 and to which is annexed a customer letter referring to the 'great range' of products available105 and a list of white wines available at Dan Murphy's stores.106
96 Senior counsel for Woolworths submitted that the Liquor Commission was required to confine itself to a 3 km radius because it did not provide to Woolworths the 'metes and bounds' of the alternative locality upon which it relied.107 I do not accept that the Liquor Commission was required to be so specific about the boundaries of its locality. Nothing in the Liquor Control Act requires such specificity. In any event, the definition of locality adopted by the Liquor Commission was the geographical area from which the proposed store might be expected to draw custom. Counsel for Woolworths had explained at the hearing before the Commission that this geographical area for the trade radius of Dan Murphy's was 5 to 10 km.
97 The matters raised by senior counsel for Woolworths, either singly or in combination, do not support the recognition of the novel procedural duty requiring the Liquor Commission, in the circumstances of this case, to confine itself to consideration of the proper development of the liquor industry within a 3 km radius of the proposed store.
(ii) Whether the Liquor Commission should have adjourned the proceedings
98 An alternative argument made by senior counsel for Woolworths was that the Liquor Commission denied procedural fairness by failing to adjourn the hearing to permit Woolworths to address public interest issues arising from the application of a locality with a radius beyond 3 km.
99 Section 16(1)(c) of the Liquor Control Act permits the Liquor Commission to adjourn a hearing, of its own motion, or on application. The question of whether the failure to adjourn a hearing will amount to a denial of procedural fairness will often be 'fact heavy'.108
100 Two decisions featured heavily in the written and oral submissions of counsel. Ultimately, those decisions and their contrasting results illustrate the dependence of the application of principles of procedural fairness upon particular facts.
101 The first case was Sullivan v Department of Transport.109 In that case, the Full Federal Court heard an appeal from a decision of the Administrative Appeals Tribunal. The Tribunal refused to renew Mr Sullivan's commercial pilot's licence and radiotelephone operator's licence. A key issue was Mr Sullivan's medical fitness. Mr Sullivan was unrepresented in the Tribunal. Mr Sullivan had told the Tribunal that he wanted to call a witness, Dr Evans. Mr Sullivan said that Dr Evans had told him that Dr Evans would attend the hearing. But Dr Evans was not there. Mr Sullivan explained that without Dr Evans he would be unable to substantiate an argument that a particular medical standard is open to wide interpretations.110
102 One of the grounds of Mr Sullivan's appeal was that the Tribunal should have alerted Mr Sullivan to his power to apply for an adjournment of the proceedings, or should have adjourned the hearing to allow Mr Sullivan the opportunity to call Dr Evans as a witness, and obtain evidence from him. Dr Evans was an important witness. Smithers J went so far as to say that if Mr Sullivan were to 'present his case reasonably it was essential that Dr Evans be called as a witness'.111
103 Although the Full Court allowed the appeal, a majority of the Full Federal Court dismissed this ground. Deane J, with whom Fisher J agreed on this point, held that there was nothing to suggest that Mr Sullivan was under any misapprehension about his ability to apply to adjourn the proceedings. Deane J also explained the following:112
A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity for adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans’ attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probably that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity y of properly presenting his case even though the party in question has not expressly sought an adjournment.113 In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible tasks of ensuring that party takes the best advantage of the opportunity to which he is entitled.
104 The contrasting decision relied upon by senior counsel for Woolworths in this appeal is the more recent decision of the Full Federal Court in Civil Aviation Safety Authority v Ovens114 which distinguished the decision in Sullivan.
105 In Civil Aviation Safety Authority v Ovens, Mr Ovens appealed from a decision of the Administrative Appeals Tribunal. The Administrative Appeals Tribunal had affirmed a decision of the Civil Aviation Safety Authority to require a safety pilot as a condition of Mr Ovens' class 2 medical certificate. Both at first instance in the Federal Court, and in the Full Federal Court, it was held that the decision making process of the Administrative Appeals Tribunal had denied procedural fairness Mr Ovens.
106 The reason for the denial of procedural fairness to Mr Ovens was that his case had been conducted on the basis that he had complied with the United States Federal Aviation Administration's protocol. The Civil Aviation Safety Authority, which disputed Mr Ovens' claim, did not make any reference to its own policy or 'published protocol', until re-examination of its final witness, immediately prior to closing submissions.
107 The Federal Court and Full Federal Court held that the denial of procedural fairness had occurred because Mr Ovens had not been given the opportunity to consider matters such as the following:
(i) whether the published protocol should be applied at all, and if so in what respects;
(ii) whether the published protocol should be applied to his circumstances;
(iii) whether it was appropriate to devise a specific protocol for him;
(iv) whether evidence would be relevant to the three matters above; and
(v) whether submissions were relevant to the four matters above.
108 Several relevant circumstances, as described by the Federal Court and Full Federal Court, were as follows:
(i) Mr Ovens did not appreciate the effect of the tender of the published protocol. As the trial judge held, and the Full Court affirmed, 'it is understandable that Mr Ovens did not appreciate the effect of the tender of the published protocol' because neither the authority nor the Tribunal made explicit the effect of receiving the protocol into evidence.115
(ii) The possible significance of the published protocol to the Tribunal decision was not appreciated by Mr Ovens.116
(iii) Mr Ovens did not have the opportunity within the time frame of the hearing fully to appreciate or to consider the criteria in the published protocol and the way in which the evidence could be directed to those criteria.117
109 In the circumstances of the present case none of the three matters described above in Civil Aviation Safety Authority v Ovensapplies.
110 For the following reasons I do not consider that Woolworths was denied procedural fairness solely on the basis that the Liquor Commission considered a wider view of locality than a 3 km radius from the proposed site.
111 First,as I have explained, the issue of locality was raised by the Liquor Commission at the very outset of the hearing. Throughout the hearing it was apparent that the Liquor Commission was considering a possible locality beyond a 3 km radius.
112 Secondly,counsel before the Liquor Commission did not apply for an adjournment, nor did he apply to adduce further evidence.
113 The fact of legal representation, or lack thereof, is a relevant consideration to the question of procedural fairness arising from the failure to offer an adjournment or the opportunity to make further submissions.118 It must have been apparent to the Liquor Commission that counsel for Woolworths was extremely experienced. He drew from that experience in his submissions before the Commission on a number of matters.In his affidavit before this Court counsel explained that he is a solicitor who has practised in the liquor licensing jurisdiction for 30 years.119 This is a case where it was not the function of the tribunal to advise the parties who appeared before it.120
114 Thirdly,the Liquor Commission might reasonably have formed the view that counsel did not apply for an adjournment, nor did he apply to adduce further evidence, as part of what senior counsel described as a 'strategic decision' for commercial reasons.121 If so, then why should the Liquor Commission second-guess a strategic choice made by counsel?
115 It may be that if counsel for Woolworths had sought an adjournment, or if he had sought to adduce further evidence, then such an application for adjournment would have been granted. All the indications are that the Liquor Commission would have granted the adjournment application. The policy of the Liquor Commission is that 'the applicant may make submissions as to the appropriate size of the locality to the specific nature of the proposed business'. Further, the Liquor Commission had received, and referred in its reasons to, the further evidence about locality provided by Woolworths after the hearing.
116 Fourthly, although it would have been more desirable if counsel for Woolworths had been provided with notice prior to the hearing that the Liquor Commission was considering a locality with a radius of more than 3 km, when the matter was raised at the hearing counsel was able to answer many of the questions on this issue from the Liquor Commission. Counsel also provided further information after the hearing which the Liquor Commission accepted and relied upon.
117 Fifthly,the scope of the Liquor Control Act must be considered in deciding whether it was procedurally unfair for the Liquor Commission not to adjourn the hearing or to offer counsel an opportunity to adduce further evidence on a matter raised by the Liquor Commission. The emphasis also on informality, efficiency and speed militate against requiring the Liquor Commission to offer, without request, a delay to the proceedings to enable further matters to be addressed.
118 There will be cases like Civil Aviation Safety Authority v Ovens which require a unilateral decision by a tribunal to adjourn proceedings (or offer to adjourn proceedings) or invite further evidence. But this was not one of them. In all of the circumstances of this case, I consider that the Liquor Commission discharged its procedural duty to ensure that Woolworths had a reasonable opportunity to present its case to respond to issues relating to the proper development of the liquor industry involving an assessment of locality with a radius beyond 3 km.
(iii) Overall conclusion on ground 1
119 At the start of the hearing of Woolworths' application before the Liquor Commission, the Commission identified to Woolworths the issue which became critical to its decision. This issue was the application of a wider radius for locality for the purpose of determining the proper development of the liquor industry. The Liquor Commission's Policy Directive had indicated to Woolworths that depending on the nature of the application the Liquor Commission might determine that a broader locality would apply. Although it was unfortunate that Woolworths was only notified of this critical issue at the time of hearing, counsel for Woolworths understood the significance of the issue. Woolworths subsequently introduced some limited additional evidence on the point. It did not seek to introduce any more evidence. The Liquor Commission was not required to abstain from considering matters concerning a wider radius in assessing the proper development of the liquor industry or unilaterally adjourn the hearing.
120 The first ground of appeal was notionally a ground of appeal independent of the second ground. It was the subject of separate submissions although it was common ground that there was substantial overlap between the first and second grounds of appeal.
121 The first ground, as an independent ground of appeal, and considered independently of the matters raised in the second ground, is dismissed.
Ground 2: Procedural fairness in relation to the Pereira Article
122 The primary matter relied upon in the second ground of appeal is the absence of notice given to Woolworths about the Pereira Article.
123 As I explained above, the obligation of procedural fairness imposed duties on the Liquor Commission including to advise Woolworths of any adverse conclusion which would not obviously be open on the known material, and the opportunity to make submissions in relation to documents to which the Liquor Commission proposes to have regard.
124 As the Liquor Commission explained, the Commissioner of Police had brought 'to the attention of the Commission certain areas of potential harm and ill-health as a relevant consideration in the application'.122 Woolworths had tendered reports, including statistical analysis, in relation to whether there was reliable evidence that increased liquor outlet density corresponded with risks of harm to members of the surrounding community.123 Counsel was not asked to address any of these matters. The Pereira Article was a significant contradiction of evidence relied upon by Woolworths. But the Liquor Commission did not give Woolworths any notice of, or any opportunity to make submissions in relation to, the Pereira Article. This amounted to a breach of the rules of procedural fairness in circumstances in which reliance was placed by the Liquor Commission upon the Pereira Article.125 A breach of procedural fairness will not always require an order for re-hearing. In particular, in Stead v State Government Insurance Commission,124the High Court explained that
an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
126 However, as the High Court also said:125
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact ... However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
127 In overturning the Full Court, the High Court later explained that126
if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
128 It has been said that the effect of the decision in Stead is to ask whether 'the lack of procedural fairness could not have affected the outcome'.127 There is, however, some tension between, on the one hand, the first passage quoted above from the High Court and, on the other hand, the latter two passages. The first passage looks forward to a new hearing while the latter two passages look backwards to the previous hearing.
129 It will usually be sufficient simply to ask whether the lack of procedural fairness could not have affected the outcome. However, in light of the subtle differences in the passages quoted above in Stead, I prefer to follow the approach of Lindgren J (with whom Jenkinson J agreed) in Giretti v Commissioner of Taxation.128 That approach is that although the application of one or the other of the two passages will generally lead to the same result, an appellate court will not order a re-hearing if either the denial of procedural fairness would have made no difference at the previous hearing or if it would make no difference at a new hearing.
130 As mentioned above at [33] - [34], the Commissioner of Police did not support the application for two reasons. Those reasons were (i) the sufficiency of existing liquor outlets in the locality and (ii) the negative impact on the amenity of the locality if the application were granted. The two reasons are closely related, especially by reference to the concept and meaning of 'locality'.
131 In extremely helpful submissions, counsel for the Commissioner of Police isolated the only issue relevant to this ground as being whether the Liquor Commission relied upon the Pereira Article.129 Three paragraphs of the reasons of the Liquor Commission support the Commissioner of Police's submission that the Liquor Commission did not place significant emphasis on the Pereira Article.
132 The first is par [46] where, after referring to the Dan Murphy's store in Currambine, located 6.1 km away,130 the Liquor Commission explained that131
[t]his application effectively turns on whether the Commission is satisfied on the evidence that establishing another "destination" liquor store in such proximity [of the Currambine store] is in the public interest in keeping with the intent of object 5(1)(c) of the Act.
133 The second relevant paragraph is par [54] where the Liquor Commission concluded that establishing a Dan Murphy's style liquor store in this location is not consistent with the proper development of the liquor industry.
134 The third relevant paragraph is par [62] of the Liquor Commission's reasons. That paragraph reads as follows:
Whilst this report has not been the basis of the determination, the findings of the report are relevant and assist in determining the likelihood that harm is occurring or will occur.
135 Read in isolation, these paragraphs might suggest that the Pereira Article was not a matter which affected the Liquor Commission's decision. However, I do not accept the submission of the Commissioner of Police that the remarks about the Pereira Article were akin to obiter dicta and did not form part of the Commission's reasoning. When the reasons of the Liquor Commission are read as a whole, the Pereira Article was a relevant matter to the Liquor Commission's consideration. If Woolworths had been afforded procedural fairness by being given the opportunity to respond to the Pereira Article, then the outcome of the application might not have been the same.
136 My reasons for rejecting the submission of the Commissioner of Police that the remarks about the Pereira Article were akin to obiter dicta and did not form part of the Commission's reasoning are as follows.
137 First,as to whether the matters in the Pereira Article were a factor in the Liquor Commission's reasoning, it is hard to see why these matters would have been mentioned if they were not a factor.
138 Secondly, the Liquor Commission would not have described the findings in the report as 'relevant' if the Liquor Commission did not consider that they were to be taken into account.
139 Thirdly, as explained above at [11] - [12], one of the objects to which the Liquor Commission was required to have regard in making a determination about the public interest was 'the harm or ill-health that might be caused to people, or any group of people, due to the use of liquor'. In Executive Director of Health v Lily Creek International Pty Ltd,132 Ipp J (with whom Owen and Miller JJ agreed) said that as a matter of statutory interpretation, the possibility, rather than probability, of harm or ill-health is a matter relevant to the consideration of public interest in all the circumstances.
140 The Liquor Commission's description of the findings in the Pereira Article as matters which 'assist in determining the likelihood that harm is occurring or will occur' is a reference to this consideration in the assessment of the public interest.
141 Fourthly,and especially in light of the first three matters above, the reference by the Liquor Commission to the Pereira Article not being 'the basis of' (emphasis added) its determination does not exclude the possibility that the matters raised in the Pereira Article constituted a factor, even a significant factor, in its conclusion. The reference to 'the basis of' is best understood to mean that the Pereira Article was considered by the Liquor Commission but that it was not the most important, or the critical, factor in the determination.
142 Fifthly,in the paragraph in which the Liquor Commission expressed its ultimate conclusion, par [63], the chairperson explained that133
[t]he addition of another 'destination' liquor store at the proposed location will significantly increase outlet density to the extent that the Commission is not persuaded that it is in the public interest to approve the application.
143 This ultimate conclusion drew directly from the language of 'outlet density' used by the Liquor Commission in discussing the Pereira Article in par [60]. In other words, the paragraph which expressed the Liquor Commission's ultimate conclusion was a paragraph which immediately followed the Liquor Commission's discussion of the Pereira Article and which was expressed using the same language as the discussion of the Pereira Article.
144 Sixthly,as I have mentioned, the matters of concern in the Pereira Article are not independent of the considerations of the proper development of the liquor industry within the locality. As an example, the matters of concern in the Pereira Article require consideration of matters including outlet density and liquor availability in relation to a consideration of the potential harm or ill-health caused to people by the use of liquor in the broader possible locality. If Woolworths had been afforded procedural fairness in relation to the Pereira Article then it is apparent from the evidence on this appeal that its response to the Pereira Article might have included material concerning the nature of outlet density and liquor availability in a broader location.134
145 It is possible that if Woolworths had been afforded procedural fairness, by being provided an opportunity to respond to the matters raised in the Pereira Article, then the result might still have been the same. It is also possible that the result might be the same on any referral of this matter to the Liquor Commission. But I cannot conclude that the result would be the same on either basis, or that the lack of procedural fairness could not have affected the outcome.
Conclusion
146 Although I have dismissed the first ground of appeal, the exasperation felt by Woolworths is understandable. After considerable time and expense in preparing an extremely substantial case, much of which was based on a locality of a radius of 3 km, the size of the locality under consideration was altered, and only at the oral hearing several months before an important commercial deadline. But it must be remembered that the Director of Liquor Licensing's Policy Guideline left open the possibility that depending on the nature of the application the Liquor Commission might determine that a broader locality would apply. It is likely that this issue was only noticed by the Liquor Commission once all of Woolworths' materials in its application had been considered.
147 As to the second ground of appeal, I have concluded that the Liquor Commission did not afford Woolworths procedural fairness in relation to one aspect of its decision. I did not reach this conclusion easily. As counsel for the respondent correctly pointed out, it is not appropriate to examine the reasons of the Liquor Commission in minute detail, searching for error as though combing through the words of the decision-maker with 'a fine appellate toothcomb, against the prospect that a verbal slip will be found warranting the inference of an error of law'.135 Further, in this case, the Liquor Commission considered a vast amount of material and delivered a cogent and clear written judgment expeditiously, especially taking into account the intervening holiday period after the hearing. But, reading the reasons of the Liquor Commission as a whole, Woolworths was denied procedural fairness by not being given the opportunity to respond to a matter where its response might have affected the outcome.
148 Section 28(5) of the Liquor Control Act provides for the powers of this Court on an appeal under the Act, including to
(a) affirm, vary or quash the decision appealed against; or
(b) make any decision that the Commission could have made instead of the decision appealed against; or
(c) send the decision back to the Commission for reconsideration in accordance with any directions or recommendations that the Court considers appropriate,
and, in any case, may make any ancillary or incidental order the Supreme Court considers appropriate.
149 Woolworths sought orders, if this appeal were allowed, granting it a liquor licence. Alternatively, Woolworths sought to have the matter remitted to the Liquor Commission.
150 My understanding of the oral submission by senior counsel for Woolworths was that a liquor licence should be granted by this Court only if this Court were to find that the Liquor Commission was required to confine itself to a consideration of a locality with a 3 km radius from the proposed store. That ground of appeal was rejected.
151 In any event, there are numerous reasons why this type of order might not be appropriate.
152 One consideration in relation to whether this Court should make a determination in place of the Liquor Commission is that the appeal books ran to more than 1,000 pages, and I did not receive any submissions on this appeal about any of that material save for the aspects in which procedural fairness was said not to have been afforded to Woolworths. I also did not receive any submissions concerning the appropriate conditions to be imposed on any licence awarded.
153 Another difficulty in making any determination in place of the determination of the Liquor Commission is that for some matters of evidence Woolworths has only indicated the type of evidence which it would have sought, and would seek, to put before the Liquor Commission if it had not been denied procedural fairness. The evidence itself in relation to these matters is not all before me.
154 Further, I did not receive any submissions about the circumstances in which it would be appropriate for an appellate court, upon a conclusion of a denial of procedural fairness, to exercise a broad discretion to substitute its decision for that of a specialist tribunal, rather than to remit the matter.
155 If the appropriate order is for remittal of the matter to the Liquor Commission, then there may also be issues concerning any directions or recommendations to be made to the Liquor Commission.
156 I will hear from counsel in relation to the terms of the orders to be made to give effect to these reasons. I have provided these reasons to the parties by email to expedite the process of conferral as to the appropriate orders.
1Liquor Control Act 1988 (WA) s 3.
2Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 [48].
3 See Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118 (Gibbs J).
4 See O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson & Gaudron JJ).
5 See O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson & Gaudron JJ).
6Hermal Pty Ltd v Director of Liquor Licensing [2001] WASCA 356; Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 [61] (Buss JA).
7Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584.
8FAI Insurances Ltd v Winneke[1982] HCA 26; (1982) 151 CLR 342, 368 (Mason J); Minister for Immigration and Citizenship v Li [2013] HCA 18 [24]; (2013) 297 ALR 225 (French CJ).
9Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 503 - 504 (Kitto J); University of Ceylon v Fernando [1960] 1 All ER 631, 637 (Lord Jenkins for the Privy Council).
10Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225.
11Minister for Immigration and Citizenship v Li [2013] HCA 18 [63]; (2013) 297 ALR 225, 246 [63].
12Minister for Immigration and Citizenship v Li [2013] HCA 18 [67]; (2013) 297 ALR 225, 247 [67].
13Liquor Control Act s 33(2).
14Liquor Control Act s 16(1)(a).
15Liquor Control Act s 16(7) (c).
16Liquor Control Act s 16(1)(b)(i).
17Liquor Control Act s 16(7).
18Liquor Control Act s 16(7).
19Liquor Control Act s 16(7).
20Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 - 592 (the Court).
21 See also Lisafa Holdings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391, 406 (Mahoney JA).
22Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, 162 [32] (Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ).
23Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, 166 [49] (Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ). And see Minister for Immigration and Citizenship v Szgur[2011] HCA 1; (2011) 241 CLR 594, 598 - 599 [9] (French CJ & Kiefel J).
24 1 AB 29 - 32.
25 2.1 AB 296 - 300.
26 Reasons of the Liquor Commission [2], [27]; 1 AB 5, 10
27 1 AB 175.
28 1 AB 177.
29 Reasons of the Liquor Commission [15.5]; 1 AB 8.
30 Reasons of the Liquor Commission [15.2], [15.3]; 1 AB 7.
31 Submissions of the Commissioner of Police [9]; Woolworths v Director of Liquor Licensing [2012] WASC 384 [21] (Heenan J).
32 Reasons of the Liquor Commission [31]; 1 AB 10. See also Reasons of the Liquor Commission [10], [33], [36]; 1 AB 6, 11.
33 Reasons of the Liquor Commission [31] - [32]; 1 AB 11.
34 Reasons of the Liquor Commission [55]; 1 AB 14.
35 Reasons of the Liquor Commission [54]; 1 AB 14.
36 Reasons of the Liquor Commission [53]; 1 AB 14.
37 Reasons of the Liquor Commission [58]; 1 AB 14.
38 Affidavit of Mr Crocket , sworn 23 September 2013, GDC 1 pages 9 - 23.
39 Reasons of the Liquor Commission [13], [31]; 1 AB 6, 10.
40 Affidavit of Mr Crocket, sworn 23 September 2013 [14] - [15].
41 Affidavit of Mr Crocket, sworn 23 September 2013 [39] - [41].
42 Reasons of the Liquor Commission [30] - [31]; 1 AB 10. See also Reasons of the Liquor Commission [10], [33], [36]; 1 AB 6, 11.
43 Reasons of the Liquor Commission [31]; 1 AB 10 - 11.
44 Reasons of the Liquor Commission [32]; 1 AB 11.
45 Reasons of the Liquor Commission [55]; 1 AB 14.
46 Reasons of the Liquor Commission [54]; 1 AB 14.
47 1 AB 163 - 164.
48 Affidavit of Mr Crocket, sworn 23 September 2013, GDC 1 page 9.
49 Affidavit of Mr Crocket, sworn 23 September 2013, GDC 1 page 11.
50 Affidavit of Mr Crocket, sworn 23 September 2013, GDC 1 page 12.
51 Reasons of the Liquor Commission [31] - [32]; 1 AB 10 - 11.
52 Affidavit of Mr Crocket, sworn 23 September 2013 [8], GDC 1 page 23.
53 Affidavit of Mr Crocket, sworn 23 September 2013, GDC 1 page 12.
54 Affidavit of Mr Crocket, sworn 23 September 2013 [11].
55 2.2 AB 424 [1.1], 427 [4.1] - [4.3].
56 1 AB 65, 71, 83, 125.
57 2.2 AB 568 [3.1], 591 [8.1], 597 [9.2].
58 2.4 AB 983.
59 2.4 AB 1099.
60 2.4 AB 1100.
61 2.4 AB 1101.
62 2.4 AB 1102.
63 2.4 AB 1102.
64 2.4 AB 1102.
65 Affidavit of Mr Crocket, sworn 23 September 2013 [36].
66 2.4 AB 1102.
67 2.4 AB 1104.
68 2.4 AB 1105.
69 2.4 AB 1104.
70 2.4 AB 1107.
71 2.4 AB 1105.
72 2.4 AB 1105.
73 2.4 AB 1105.
74 2.4 AB 1110.
75 2.4 AB 1111.
76 2.4 AB 1112.
77 2.4 AB 1092 - 1093.
78 2.4 AB 1095.
79 Reasons of the Liquor Commission [13.5]; 1 AB 7.
80 Affidavit of Mr Crocket, sworn 23 September 2013, GDC 1 page 12.
81 1 AB 51, 77.
82 ts 10.
83 ts 11.
84 ts 12.
85 2.4 AB 1124.
86 Affidavit of Mr Crocket, sworn 23 September 2013 [33] - [35].
87 Affidavit of Mr Crocket, sworn 13 November 2013 [5(a)].
88 ts 8.
89 2.4 AB 1129.
90 2.4 AB 1110.
91 1 AB 51.
92 2.1 AB 187 - 214.
93 2.1 AB 215 - 217.
94 2.1 AB 227 - 245.
95 2.1 AB 235.
96 2.1 AB 245.
97 2.1 AB 258 - 294.
98 2.1 AB 301 - 304.
99 2.1 AB 303.
100 2.1 AB 303.
101 2.2 AB 516 - 552.
102 Par 4.1.
103 Par 4.5
104 2.2 AB 521 - 524.
105 2.2 AB 537.
106 2.2 AB 540 - 553.
107 ts 27.
108Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418, 425 [32] (the Court).
109Sullivan v Department of Transport (1978) 20 ALR 323.
110Sullivan v Department of Transport (1978) 20 ALR 323, 340 (Deane J).
111Sullivan v Department of Transport (1978) 20 ALR 323, 331.
112Sullivan v Department of Transport (1978) 20 ALR 323, 343.
113Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506.
114Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418.
115Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418, 423 [26].
116Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418, 423 [26].
117Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418, 423 [26].
118 Eg Titan v Babic (1994) 49 FCR 546, 555 (the Court).
119 Affidavit of Mr Crocket, sworn 23 September 2013 [2].
120R v Nutter [1988] 2 Qd R 581, 583 (Connolly J).
121 ts 57.
122 Reasons of the Liquor Commission [11]; 1 AB 6.
123 2.4 AB 997 - 1044; 2.4 AB 1046 - 1089.
124Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 - 146 (the Court).
125Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145.
126Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147.
127Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418, 425 [35] (the Court).
128Giretti v Commissioner of Taxation (1996) 70 FCR 151, 165.
129 ts 50.
130 Reasons of the Liquor Commission [38]; 1 AB 11.
131 Reasons of the Liquor Commission [46]; 1 AB 12 - 14.
132Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510, 516 - 517 [28]. Compare the common law position now: Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537.
133 Reasons of the Liquor Commission [63]; 1 AB 15.
134 See especially Affidavit of Mr Crocket, sworn 23 September 2013 [39] - [41].
135Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 291 (Kirby J); Hancock v Executive Director of Public Health [2008] WASC 224 [70] (Martin CJ).
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