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). Kirby P I agree with Handley JA. Mahoney JA I agree with the judgment of Handley JA. The application before the court, as argued, involved two main questions: whether the Full Bench of the Licensing Court, on the remission of the application to it by the Supreme Court, was entitled to consider and if necessary to change factual findings previously made by it; and whether, in what it did, the Licensing Court infringed the requirements of natural justice. The summons was appropriately amended to allow both these matters to be raised. The first matter raises questions of general application. Mr Whealy QC, for the appellants, in one of the ways in which he put the matter to the court, submitted that there had, in the first consideration of the matter by the Licensing Court, been a "threshold" question of fact. The application to the Licensing Court was for the removal of a retail off-licence from premises at Pyrmont to premises proposed to 2 UNREPORTED JUDGMENTS be set up at Queanbeyan at or near the Woolworths supermarket there situated. It had, in the initial consideration of the matter by the Licensing Court, beer argued that the licence would be available to meet the needs of those members of the public who patronised not merely the Woolworths supermarket but also another supermarket nearby (conveniently described as "Jewel"). Mr Whealy QC submitted that there had been, on the initial consideration of the matter, a "threshold" question, viz, whether the customers of Jewel would, in general, be likely to go to the proposed licensed premises. That, it was accepted, would be relevant in determining the needs of the customers of Jewel, as part of the public whose needs were in question. Mr Whealy submitted the Licensing Court's initial finding had been that the Jewel customers would not go to and use the premises to which the licence was proposed to be transferred and that this indicated that the licence was not required to meet, at least, the needs of that section of the public. On the appeal to the Supreme Court against the initial determination, Sully J concluded that there was no error in law in that decision. His Honour upheld the appeal on other matters and ordered that the application be "remitted to that Court for determination in accordance with the decision of this Court". Mr Whealy's main submission in this regard was that, on its consideration of the application as remitted to it, it was not open to the Licensing Court to reconsider that "threshold" question and to arrive at a different conclusion. The nature of the "determination" to be undertaken by the Licensing Court when a matter is remitted to it under s146 of the Liquor Act 1982 raises issues of general importance. An appeal to the Supreme Court from an adjudication of the Licensing Court lies "on a question of law": s146(1). $146(2) provides: "146(2) On the determination of an appeal under subs(1), the Supreme Court shall: (a) remit the matter to the Licensing Court for determination in accordance with the decision of the Supreme Court; or (b) make such other order in relation to the appeal as it thinks fit." In the ordinary case, the Supreme Court will, as Sully J did, merely "remit the matter to the Licensing Court for determination in accordance with" the Supreme Court's decision. $146 does not in terms provide that, in the course of that determination, the Licensing Court can, must, or may entertain further evidence. In Martin v Green (1984) 1 NSWLR 148, the court considered the position under the 1912 Act: at 155-6. It may be that the Supreme Court may, when remitting a matter to the Licensing Court, make a special order limiting what the Licensing Court can or may do in this regard. It is not necessary to consider that question in the present proceeding. No such order was made by Sully J. $146(5)(b) provides some indication that, when the matter is remitted to the Licensing Court, the Licensing Court may "grant leave for further evidence to be called by a party to the proceedings", the assumption being that, except with such leave, further evidence may not be called. In the present case, further evidence was in fact tendered to and accepted by the Licensing Court. This was done by agreement or at least without objection. Mr Holt QC, for the respondents, submitted that that evidence required the Licensing Court to make a reassessment of the facts and, in particular, to reassess, in the light of the new evidence, the "threshold" question of fact. I am inclined to the view that this submission is correct. However, the matter was argued before the Licensing Court and, in my opinion, the Licensing Court understood and the URJ WILSON v MADDEN (Handley JA) 3 parties acted on the basis that that Court should re-examine that question. It did so and arrived at a different opinion from that arrived at upon the original hearing. Mr Whealy QC, in this submission, contends that in doing so the Licensing Court was in error in law. I do not think that submission should be accepted. Whatever be the limits of what, in relation to findings of fact, the Licensing Court may do in respect of a matter remitted to it under s146, there is in my opinion no error of law if it re-examines issues of fact in respect of matters raised for decision by fresh evidence tendered by the parties as in this case. Mr Whealy QC submitted alternatively that there was a failure by the Licensing Court to make clear to the appellants that reconsideration of this matter was to be undertaken. For the reasons indicated by Handley JA, I do not think that this submission should be accepted. I agree with the orders proposed by Handley JA. Handley JA The proceedings before the Court arise from an application by the first opponent for the transfer of a spirit merchant's licence from premises at Pyrmont to the Woolworths supermarket at Queanbeyan. On 27 October 1989 a Full Bench of the Licensing Court, by majority, refused the application. The applicant appealed to the Supreme Court pursuant to s146 of the Liquor Act 1982. On 23 March 1990 Sully J allowed the appeal and made an order that "the plaintiff's application to the Licensing Court is remitted to that Court for determination in accordance with the decision of this Court." The application was further heard by the Full Bench on 26 duly 1990 and on 12 October it decided unanimously to grant the application. The private objectors then appealed to the Supreme Court and at the same time sought prerogative and declaratory relief arising from an alleged denial of natural justice by the Full Bench. On 10 May 1991 Abadee J dismissed the appeal and refused the other relief. The private objectors appealed to this Court as of right from the decision refusing prerogative and declaratory relief and sought leave to appeal from the rest of the decision as required by s101(1)(j) of the Supreme Court Act. This Court heard both proceedings together. I shall refer to the claimants in the summons for leave to appeal as the appellants. The appellants submitted that the Licensing Court made two errors of law and alternatively or in addition that they were denied procedural fairness by that Court. The application for removal was objected to on the ground in s45(2) of the Act "that the needs of the public in the neighbourhood of the premises to which the application relates can be met by facilities for the supply of liquor existing in, and outside, the neighbourhood." The Full Bench found in the first hearing that the public in the neighbourhood comprised the population of Queanbeyan and its rural hinterland amounting to some 25,000 people. The Woolworths supermarket is situated on the north western side of Queanbeyan close to the Jewel's supermarket some distance from the town centre. The other major shopping centre is the Riverside Plaza which included a Grace Bros department store and a Coles New World supermarket. The Plaza was located in the central business district some 400 metres from Woolworths. The Grace Bros store did not sell food lines but had a liquor department. The Coles supermarket some 150 metres from Grace Bros included a Liquorland outlet. In addition there were various hotels and liquor stores with off-licences located elsewhere in Queanbeyan or in nearby areas of the Australian Capital Territory. 4 UNREPORTED JUDGMENTS The applicant's case was that a substantial proportion of the population used the Jewels and Woolworths supermarkets resulting in some 22,000 customer visits per week to both stores. Adequate parking space existed in the vicinity. Neither had an outlet for the sale of liquor and the closest outlets located in Riverside Plaza were beyond easy walking distance. Woolworths was the only trader in its supermarket, and it could not provide for all the shopping requirements of its customers. There was for example no newsagent, chemist, bank or building society within that centre. The majority did not consider that the "sector of the public in the neighbourhood who are patrons of the Jewels supermarket can be regarded as having a reasonable demand or expectation of an additional liquor store adjacent to the Woolworths site." They also decided that "a facility to serve the Woolworths' customers alone in this site would not constitute a reasonable demand or expectation viewed objectively" and accordingly they refused the transfer. Sully J allowed the applicant's appeal because he considered that: "\.. the majority... having rejected that part of the plaintiff's case which depended upon the impact of the Jewel store and its customers failed to evaluate according to law the needs of the members of the public who were regular customers of the Woolworths supermarket, notwithstanding their finding of fact that the number of such customers was very large in proportion to the estimated total number of the public in the neighbourhood." When the Licensing Court resumed the hearing on 26 July 1990 counsel for the applicant tendered further evidence in the form of an affidavit which established that Grace Bros had announced its intention of closing the liquor department in its store and counsel for the objectors tendered further evidence in the form of a statement by Grace Bros that this department would not be closed for two years and that the off-licence would then be offered to the Coles supermarket in the Riverside Plaza. This completed the additional evidence. Counsel then addressed. In its reserved decision the majority held that the order for removal should be granted. They said: «*.. When the matter came before the Court Mr Holt, senior counsel for the applicant, stressed again the evidence of witnesses called by the applicant who stated that they shopped at both the Jewels and the Woolworths stores. The Court has re-examined that aspect of the applicant's case and it is apparent that notwithstanding the Court's views the evidence was to the contrary.... We accept that a licence adjacent to the Woolworths supermarket would meet the reasonable demands and expectations of the patrons of that supermarket, and would provide an additional convenience to the patrons of the Jewels store.... We note... that together these two stores provide some two-thirds of the grocery and other food needs of Queanbeyan.... The Woolworths shoppers constitute a substantial section of the public in the neighbourhood.... The convenience to the shoppers of Jewels... may be considered... when considering the reasonable demands and expectations of the rest of the public in the neighbourhood. When we measure the reasonable demands and expectations of those sections of the public, taken together with the reasonable demands and expectations of the rest of the public in the neighbourhood... against the capacity of the existing facilities to satisfy them, we now find cause to reconsider the conclusion we reached on the last occasion. We have given close consideration to all of the evidence and the new material in respect of the Grace Bros licence and have come to the conclusion that the applicant has discharged the onus." URJ WILSON v MADDEN (Handley JA) 5 The appellants' submissions before Abadee J, repeated in this Court, were that it was not open to the majority to reverse factual findings made in their first decision and that they fell into the error referred to by Hutley JA in Martin v Green (1984) 1 NSWLR 148 at 152 of treating themselves as bound by statements on purely factual issues made by Sully J. The appellants also submitted that they had been denied natural justice because the majority, before reversing the findings of fact, should have given them notice that this was being considered. In my opinion the majority of the Licensing Court were entitled to reverse findings of fact made by them in their first decision. The orders made by Sully J involved the first decision being set aside and the proceedings remitted "for determination in accordance with the decision of this Court." The appeal to the Supreme Court succeeded on the ground that the majority had erred in law in failing to properly consider whether the needs of the public who shopped only at Woolworths could be met by the existing facilities. $146(2) may have authorised orders setting aside the majority decision only on issues directly affected by that error and remitting the proceedings only for redetermination of those issues. Compare Russell on Arbitration 19th ed (1979) at 426 - 7, 490 - 494. However even if s146(2) authorises orders of this nature, and I express no opinion on that question, no such orders were made. Following the orders that were made the position in my opinion is that, in the words of Moffitt P in Martin v Green (1984) 1 NSWLR 148 at 154, "the magistrates' jurisdiction was to rehear the case and hence review the facts." See also Hampson v Whitehouse (1971) 2 NSWLR 194 at 199 - 200. The first decision having been wholly set aside on appeal it ceased to have any binding force and could not ground any issue estoppel. There is no substance in the appellants' second submission. The majority of the Licensing Court must have been well aware of the decision of this Court in Martin v Green (1984) 1 NSWLR 148 with its emphasis on the duty and freedom of the Licensing Court to form its own conclusions on issues of fact and policy without being bound in any way by expressions of opinion by Judges of the Supreme Court. In any event all that Sully J relevantly said was: "I cannot say that it was not open to the majority to come to that conclusion of fact. " This was in no sense a direction or even suggestion that this conclusion be reversed. In my opinion therefore the majority were entitled to reconsider their earlier findings of fact and to come to different conclusions and they did not err in law in doing so. The summons for leave to appeal should be dismissed with costs. There is also no substance in the submission that there was a denial of natural justice. At the resumed hearing before the Full Bench on 26 July 1990 counsel for the private objectors addressed first. When counsel for the applicant addressed he referred extensively to the evidence given at the original hearing by lay witnesses that they shopped at both Jewels and Woolworths and he emphasised that this evidence had not been subject to any cross-examination. He said: " So what I am really saying, your Worships, is that this tends on evaluation of the need for a licence at Woolworths to bring in Jewel because in fact the uncontradicted evidence of 4/7ths of the witnesses is they shop at both. So you really are looking back at the figure of something like 22,000... in a place the size of Queanbeyan. " 6 UNREPORTED JUDGMENTS There can be no doubt therefore that counsel for the private objectors was then well aware that the majority of the Full Bench were being invited to review and reverse the relevant findings of fact. However he made no submissions in reply, and did not seek an adjournment to make such submissions or call further evidence. In these circumstances I am satisfied that the private objectors were not denied procedural fairness. The appeal from Abadee J's decision to this effect should therefore be dismissed with costs. The following formal orders should be made: 1. Summons for leave to appeal dismissed with costs. 2. Appeal dismissed with costs. Counsel for Appellants (Claimants): AG Whealy QC / I Lawry, Instructed by: Freehill Hollingdale and Page Counsel for Respondents (Opponents): WJ Holt QC / SB Austin Counsel for the 1st Respondent (Opponents): K Kinninmont Counsel for the 2nd-Sth Respondents (Opponents): State Crown Solicitor's Office