WILSON v MADDEN [1992] NSWCA 274

WILSON v MADDEN

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KirBY P, MAHONEY and HANDLEY JJA 8 November 1991, 5 June 1992

[1992] NSWCA 274

LIQUOR — transfer of spirit merchant licence — application refused — appeal to Supreme Court — appeal allowed — application remitted to Licensing Court "for determination in accordance with the decision of' the Supreme Court — upon remission, Full Bench of Licensing Court reverses earlier decision — grants application for removal of licence upon the basis that the needs of the public in the neighbourhood of the premises are not satisfied by existing facilities — reverses earlier finding of fact — private objectors lodge appeal to Supreme Court — assert that Licensing Court was not empowered under the remittal to change its threshold factual determination — complain of want of procedural fairness in making the change without due notice to them — held (1) Upon remittal of the proceedings to the Licensing Court that court was empowered and required to review findings of fact. Hampson v Whitehouse 1971 2 NSWLR 194 (CA); Martin v Green and Others 1984 1 NSWLR 148 (CA) applied; (2) There was no breach of the requirements of procedural fairness, as fresh evidence of the facts was received and counsel addressed on the facts; (3) Accordingly, leave to appeal from the decision dismissing the appeal on the merits refused and appeal from the order dismissing the summons for relief for alleged want of procedural fairness also dismissed. Discussion by Mahoney JA and Handley JA (Kirby P concurring) of the powers of the Licensing Court where, following an appeal, proceedings are remitted to that court for determination in accordance with the decision of the Supreme Court under s146 of the Liquor Act 1982.

ADMINISTRATIVE LAW — procedural fairness/natural justice alteration of decision of tribunal following remittal of proceedings to the tribunal after successful appeal to Supreme Court — reversal of earlier decision on facts — whether issue adequately raised on remittal — whether injustice occasioned by the procedure followed held: Having regard to the terms of the order of remittal; the admission of fresh evidence; and the terms of counsel's address it was clear that a review of the fact-finding was being sought so that no procedural unfairness was occasioned. Liquor Act 1982, s45(2), 145, 146(2), 146(5).