Richardson & Anor v Smith & Anor [2002] NSWSC 720

New South Wales Supreme Court

CITATION : Richardson & Anor v Smith & Anor [2002] NSWSC 720 CURRENT JURISDICTION: Supreme Court FILE NUMBER(S) : SC 12083/02 HEARING DATE(S) : 27/09/02 JUDGMENT DATE : 27 September 2002

Michael Sinclair Richardson (First Plaintiff) PARTIES : Michael David Ragan (Second Plaintiff) Anthony Charles Leybourne Smith (First Defendant) Licensing Court of New South Wales (Second Defendant) JUDGMENT OF : Whealy J at 1

LOWER COURT Licensing Court NSW JURISDICTION : LOWER COURT 204995/02 FILE NUMBER(S) : LOWER COURT D Armati, D Collins, D Kok JUDICIAL OFFICER :

J. Costigan (Plaintiffs) COUNSEL : S. Austin QC/S. Balafoutis (First Defendant) Submitting Appearance for Second Defendant Angela Frost (Plaintiffs) SOLICITORS : Back Schwartz Vaughan (First Defendant) IV Knight (Second Defendant) CATCHWORDS : Liquor Act 1982, s 36 (6) - Moratorium legislation - refused premises - extent of moratorium LEGISLATION CITED : Liquor Act 1982 (as amended) (NSW) DECISION : Order the plaintiffs' summons be dismissed. Order the plaintiffs to pay the defendants' costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WHEALY J

FRIDAY 27 September 2002

12083/02 – Michael Sinclair RICHARDSON & ANOR v Anthony Charles Leybourne SMITH & ANOR

JUDGMENT

1 HIS HONOUR: Mr Anthony Leybourne Smith is the business manager, licensing, for Woolworths Limited. By an application lodged in the Licensing Court of New South Wales on 18 April 2002, Mr Smith sought an order granting removal of an off-licence retail from premises situated at the corner of Bong Bong and Smith Streets, Bowral to premises described in the application as Woolworths Supermarket in the Highland Fair complex at Bowral. The licence sought to be removed, so it seems, had been in existence for many years. In more recent times it appears it had been operated by Franklins in the Franklins Fresh supermarket located close to the Oxley Mall at Bowral. It further appears Woolworths acquired the right to remove this licence as part of a broader acquisition of Franklins supermarkets and liquor stores. 2 As indicated above, the area to which Woolworths wishes to move the licence is within the Woolworths supermarket. This itself is within the Highland Fair shopping complex. Highland Fair is a comparatively large shopping complex containing a Woolworths supermarket with seventeen checkouts and having a number of small shops facing Bong Bong Street and car parking. The material before me suggests that the supermarket commenced trading in November 1997. It has apparently been quite successful. 3 The plaintiffs are hoteliers in or near the Bowral shopping centre. In that capacity they objected to the application made by Mr Smith on behalf of Woolworths. 4 On 27 June 2002 a Full Bench of the Licensing Court assembled to hear argument in relation to the objection which had been taken to the application. The ground of objection was as follows: "That the Court has no jurisdiction to grant the application because the applicant is applying to remove an off-licence (retail) to the premises or part of the premises to which the removal of a licence was refused within the period of two years that next succeeds the refusal. The refusal was handed down by the Licensing Court of New South Wales on 5 February 2002." 5 It is common ground that on 5 February 2002 the Full Bench of the Licensing Court had, in an extensive earlier decision, refused a series of applications. These had included an application which had been brought by Mr Smith for the grant of a new licence and alternatively for the removal of a country licence to premises which were in each case described as shop 9, corner of Banyette and Bong Bong Streets, Bowral and to be known as Woolworths Liquor. 6 In the same series of refusals the Licensing Court had refused alternate applications which had been brought on behalf of Coles Myer for a licence in the Oxley Mall at Bowral. It seems that all the applications had been heard together and that there were common objectors to both Woolworths' and Coles' applications. The successful objectors to those applications, included the present plaintiffs. The applications were, in essence, refused on the ground of objection provided for in s 45(2) of the Liquor Act 1982 (as amended). This is commonly referred to as the "needs" objection. The formal finding of the Court was that each of the applicants had failed to overcome the needs test, that is that each had not met the onus placed upon him by the statute to establish that the needs of the public in the neighbourhood of the premises to which each application related "cannot be met by facilities for the supply of liquor existing in and outside, the neighbourhood." 7 The argument heard by the Licensing Court on 27 June 2002 was however confined to the narrow ground of objection taken by the plaintiffs to the present application, which I have set out at para 2 of these reasons. The matter agitated at the hearing arose in the context of the provisions of s 36(6) of the Liquor Act 1982 (as amended). The section is in the following terms: "36(6) Where an application for the grant or removal of an off-licence to sell liquor by retail is refused upon an objection taken on the grounds specified in s 45(2) being upheld, application may not within the period of two years that next succeeds the refusal be made for the grant of such a licence relating to or the removal of such a licence to (a) the premises or any part of the premises in relation to which the grant of a licence was refused or (b) the premises or any part of the premises to which the removal of a licence was refused." 8 Separate decisions were given by each of the three members of the Full Bench of the Licensing Court. The Chairperson, Mr David Armati, after a detailed analysis, came to the conclusion that the application was not precluded from being made by the provisions of s 36(6). Mrs Daphne Kok came to the same view and gave her own reasons. As I read those reasons, it appears to me that she essentially agreed with the ultimate reasons expressed by the Chairperson. The third Magistrate, Mr Dennis Collins, after an examination of the history of the section and its predecessor, came to the conclusion that the application was in fact prohibited by the legislation. 9 As a consequence of the majority decisions, the application was allowed to proceed. It was then adjourned until 8 July 2002. On that day the Court records indicate that the application was granted and conditions of an interim and permanent nature were endorsed on the licence. It is my assumption that the temporary conditions were predicated upon the basis that part of the supermarket would have to be reconstructed to make it suitable for the sale of liquor. As well, it would be necessary to have the licence transferred from Mr Smith's name to that of a suitably qualified liquor store manager. 10 The summons filed on behalf of the plaintiffs was lodged on 30 July 2002. The following relief was sought: "1 A declaration that the determination of the second defendant made on 2 July 2002 and forming part of its adjudication made on 8 July 2002 was erroneous in law. 2. An order that the determination and the adjudication based on it be quashed. 3. A declaration that the conditions imposed by the second defendant on 8 July 2002 were imposed in error (sic) at law. 4. An order that the adjudication imposing the conditions be quashed. 5. An order that the terms of the condition imposed by the second defendant on 8 July 2002 be expunged. 6. An order that the application of the first defendant be remitted to the second defendant to be dealt with according to law. 7. Costs. 8. Any further orders as may be appropriate." 11 The grounds upon which the relief was sought is stated in these terms: "1. The second defendant was in error in its interpretation of s 36(6) of the Liquor Act 1982 when it held that the proposed licensed premises of the first defendant, being the Woolworths supermarket situate at Banyette and Bong Bong Streets Bowral were not the premises or any part of the premises in relation to which a new grant and a removal of a licence was refused on 5 February 2002. 2. The second defendant was in error in imposing conditions upon the licence in the terms adopted by it in furtherance of its erroneous interpretation referred to in ground 1." 12 It is agreed between the parties that the subject appeal is an appeal on a question of law pursuant to s 146 of the Liquor Act 1982 (as amended). It is further agreed that the sole question of law to be determined is the one that I have identified, namely, the proper construction of s 36(6) of the Liquor Act. The defendants have taken no point and have not argued other than that the plaintiffs are entitled to succeed if the plaintiffs establish that the majority decision of the Licensing Court was erroneous in point of law. 13 The parties have provided me with both written and oral submissions. I should acknowledge the assistance those submissions have given me. In addition I should further acknowledge that I have been much assisted by the helpful discussion contained in the separate decisions published by each of the members of the Licensing Court of New South Wales. 14 The essential submission made on behalf of the plaintiffs is contained in the written submissions by Mr Costigan and repeated before me in the oral submissions he made today. It may be summarised as follows - the plaintiffs say that the learned magistrates fell into error in construing s 36(6) by not adopting a literal or grammatical construction of the subsection but rather by importing into the section the word "licensed" before the word "premises" in circumstances where there was no requirement or justification as a matter of statutory construction so to do. 15 In the written submissions Mr Costigan argued that the Licensing Court had in effect adopted a "purposive" test and then imported into the statute a word, namely "licensed" premises; and that in so doing the scope of the legislation was artificially limited and incorrectly amended. 16 In oral submissions today Mr Costigan took me in detail to the decision of the learned Chairperson and Mrs Kok and contrasted the dissenting decision of Mr Dennis Collins. 17 In my view, however, the majority decisions of the Licensing Court were correct in reaching the conclusion they did, namely that s 36(6) did not prohibit the making of Mr Smith's present application. I shall state my reasons briefly. 18 First, so far as the decision of the Chairperson is concerned, while it is true his Worship devoted considerable attention to a statement of a number of principles of statutory incorporation, including those which relate to the necessity in some cases to adopt a purposive construction, I am satisfied on a fair reading of his Worship's decision that he ultimately concluded that all that was necessary in the present case was to examine the literal and grammatical meaning of the words of the subsection. At p 6 of the decision his Worship said: "Starting therefore with the consideration of what are the ordinary or natural meaning of the word premises as it is in s 36(6). One can look really no further than a simple meaning such as that in the Concise Oxford Dictionary of house, building with grounds and appurtenances. Be that as it may, what did or what does s 36(6) focus upon. As I have said it focuses upon premises for which the removal was refused or any part of the premises for which the removal was refused. Importantly, it does not refer to licensed premises, as I have already said, but more importantly s 36(6) focuses upon the premises or part of the premises relevant to the previous application." 19 At p 7 his Worship said: "In my view, that provides a clear and positive meaning to the word premises or part of premises. That is it is for the whole of the premises for the sale of liquor or part of the premises for the sale of liquor and clearly ignores parts of other premises where no sales of liquor may take place."