HART AND ORS v BELL AND ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and CRIPPS JJA 6 November 1992, 6 November 1992 [1992] NSWCA 107 LIQUOR — certificate by liquor Administration Board — refusal of certificate for on-licence — consideration of irrelevant grounds — decision set aside and remitted for consideration without regard to such grounds. ADMINISTRATIVE LAW — judicial review — administrative action — irrelevant consideration. LIQUOR — proper approach to appeals from specialist administrative authority. LIQUOR — certificate by Liquor Administration Board in application for on-licence — Board declines certificate — cites three grounds (a) applicant's premises purpose-built for use and subsequent license applicant; (b) grant contrary to the "principles of Act", the premises being premises suitable for licensing as an hotel; and (c) adverse impact upon existing licensed premises in the neighbourhood — application for judicial review to Supreme Court (Sully J) succeeds on (a) and (b) — on appeal to the Court of Appeal — held: (1) No error was shown in the decisions by Sully J on (a) and (b) and such decisions should be affirmed: (2) Appeal dismissed with costs. LIQUOR — appeal to Supreme Court — proper approach to — need for appropriate regard to specialist nature of statutory bodies administering liquor law — need to avoid over-refined examination of reasons of administrators — Martin v Green [1984] 1 NSWLR 148 (CA) applied. ADMINISTRATIVE LAW — judicial review of administrative action — decision of Liquor Administration Board to refuse certificate preliminary to application to Licensing Court for on-licence of premises — whether decision invalidated by consideration of irrelevant matters — held: (affirming Sully J): It was. Liquor Act 1982, s18(4), s74(A. Appeal dismissed with costs. Kirby P I approach the resolution of this appeal from orders of Sully J with a full appreciation of three principles which should govern the approach of this Court. First, the appeal to the Supreme Court from the Licensing Court is limited to correcting errors in law. See Liquor Act 1982, s146. Judicial review to the Liquor Administration Board is limited in a like way. Secondly, the Court will give appropriate respect to the exercise of jurisdiction by a specialist administrative body allowing a proper leeway for the exercise of the administrator's powers as he or she thinks fit. See Mark v Green and Ors [1984] 1 NSWLR 148 (CA), 151. Thirdly, the Court will not approach its functions with a view to combing through the reasons of the administrative body in a way which is artificial, unduly technical or excessively hypercritical. See Cross v McHugh and Ors [1974] 1 NSWLR 500 (CA), 503. I have listened to counsel for the appellants expressing his criticisms of the reasons of Sully J for the orders which he made. Counsel said everything that could possibly have been said in his clients' cause. However, I have come to the conclusion that the appeal should be dismissed, essentially for the reasons which Sully J expressed at first instance. 2 UNREPORTED JUDGMENTS One argument that caused me to pause was the submission that Sully J had fallen into error by implying that the exercise of the discretion by the Board here in question was to be confined to matters expressly stated in the relevant section of the Liquor Act (s74A). Certainly, if that point had been made good, it would have disclosed an error on Sully J's part. It would have required consideration by this Court of the relief then appropriate. The donee of a statutory power is obliged to exercise the power for the purpose of the grant of power. That purpose may be ascertained, not merely from an examination of the actual language of the statute or other legislation but also by deriving the purpose of the grant of power from the implications of the statute or the purposes of the statute which would properly take the administrator beyond the precise words used. The passages complained of in Sully J's reasons, to which exception was taken, were: "Tt seems to me that, had Parliament intended to create such an obligation, nothing would have been simpler than to have said so by, for example, inserting an appropriate requirement in s74A(2)." and: "That certification involves a process of judicial evaluation according to criteria which are themselves contained within s74A." I see in neither of these passages any hint that his Honour approached the task before him in the error of believing that the exercise of the discretion reposed in the Board had to be spelt out in terms in the section. On the contrary, the whole approach which his Honour took was, in my view, impeccable. The reasons which his Honour gave for the orders which he made could not be improved on by this Court. I will, therefore, not attempt to do so. The appeal should be dismissed. The appellants must pay the respondents' costs. Meagher JA I agree with the orders proposed by the President. I also agree withsome melancholy, that the President could not improve upon Sully J's reasons. Cripps JA I agree with Meagher JA. Kirby P: Necessarily this will mean that the matter will go back to the Board for determination according to law, including upon reconsideration of the matter which, before Sully J, it was determined that the Board had correctly taken into account in its administration of s74A of the Act. The orders of Sully J are confirmed. This Court orders that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: SB Austin QC/JB Costigan Solicitors for the appellant: Dunhill Madeen and Butler Counsel for the respondent: AG Whealy QC/IL Lawry Solicitors for the respondent: Phillips Fox