New South Wales Supreme Court CITATION : Penna v The Liquor Administration Board & Anor [2001] NSWSC 681 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12266/01 HEARING DATE(S) : 09/08/01 JUDGMENT DATE : 9 August 2001 Domenico Penna (Appl) PARTIES : The Liquor Administration Board (1st Resp) Fairfield City Council (2nd Resp) JUDGMENT OF : Kirby J COUNSEL : S B Austen QC/I A N Lawry (Appl) EX PARTE Slater & Elias (Appl) SOLICITORS : I V Knight, Crown Solicitor (1st Resp) Kencalo & Ritchie (2nd Resp) CATCHWORDS : Appeal against decision of Liquor Administration Board - Denial of Natural Justice LEGISLATION CITED : Liquor Act, 1982 CASES CITED : Wilkie & Anor v Attorney General for NSW & Liquor Administration Board (Foster J, unreported, 9/12/86) DECISION : Ref para 17 Extempore - Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Thursday 9 August 2001 12266/01 - DOMENICO PENNA v THE LIQUOR ADMINISTRATION BOARD & ANOR JUDGMENT 1 HIS HONOUR: Mr Domenico Penna is a hotelier, that is to say, he holds a liquor licence in respect of premises known as shop 2, 485 Cabramatta Road, Cabramatta. I gather these premises are to be known as the Cooks Hill Hotel. 2 On 20 December 2000 the Licencing Court granted a conditional application to Mr Penna to remove the licence from other premises to the premises at Cabramatta. According to the Board's judgment, prior to the fitting out of the proposed hotel, an application was made by Mr Penna under s171F(2) of the Liquor Act 1982 for the imposition of a condition to permit the keeping of fifteen gaming devices at the premises. Such an application could not be considered unless the requirements of Pt 11 Div 1A of the Liquor Act 1982 were complied with. 3 Mr Penna arranged for a company, Design Collaborative Pty Ltd, to prepare a social impact assessment of the likely impact on the local community of granting the application. I gather that the application proceeded without a hearing. 4 The Fairfield City Council became involved. It prepared a submission dated 9 April 2001 in opposition to Mr Penna's application. On 17 April 2001, the Secretary to the Liquor Administration Board wrote to the solicitors for Mr Penna enclosing a copy of the Fairfield City Council's submission. His letter included the following invitation: "Should you wish to respond to the submission, you are requested to respond within 14 days of this letter." 5 Mr Penna did wish to respond. On 2 May 2001 his solicitors, Messrs Slater & Elias, wrote to the Board indicating that the author of the Design Collaborative report, Mr George Smith, had drafted a response which would shortly be forwarded to the Board. The letter from the solicitors then included the following: "We also note that Kencalo & Ritchie, the solicitors for the Fairfield Council, request a right to respond to Mr George Smith's response. We are not sure how far this should be taken, insofar as Mr Smith allowed to respond to the response of the Council themselves. We would respectfully submit that Mr George Smith's response should be the end of the submissions and that the Board proceed on that basis." 6 The position taken by Mr Penna's solicitors was not unreasonable. It was their expectation, according to the submissions that are being made to me, that were the Fairfield Council to be given permission by the Board to respond to the fresh submission to be prepared by Design Collaborative Pty Ltd (Mr George Smith), that they would be given the opportunity to prepare a rejoinder. 7 The Fairfield Council did in fact respond to the further submission by Design Collaborative Pty Ltd. The response dated 21 May 2001 was prepared by consultants on behalf of the Council. It is an elaborate document. It runs for some twenty-seven pages, including references. It addresses in detail the various comments by Design Collaborative Pty Ltd. 8 The document was submitted to the Board. However, on this occasion it was neither served upon the solicitors for Mr Penna by the solicitors acting for the Council, nor by the Secretary to the Board. It therefore did not come to the notice of Mr Penna. Notwithstanding his solicitors' request in their letter of 2 May 2001, he was not given an opportunity respond. 9 Ultimately on 22 June 2001, the Liquor Administration Board determined Mr Penna's application by refusing it. In the course of the judgment, the Board identified the material which it had considered in reaching its decision. That material was as follows: · Volumes 1 and 2 of the social impact assessment dated March 2001. · Submissions on behalf of Fairfield City Council dated 9 April 2001. · Comments on submissions in response prepared by Design Collaborative Pty Ltd dated May 2001. · Letter from Design Collaborative Pty Ltd dated 30 April 2001 and attached annexures. · Further submissions in response on behalf of the Fairfield City Council dated 21 May 2001. 10 It is the last of these documents which is the subject of complaint in the summons which has been issued in this Court by Mr Penna. The summons makes the following claims and seeks the following orders: "1. A declaration that the first defendant had no jurisdiction at the time to make the determination which is purported to make on 22 June, 2001. 2. A declaration that the plaintiff was denied procedural fairness. (a) by failure to respond to a written Submission made by the plaintiff as contained in a letter of that date dated the 2 May, 2001 from Slater & Elias, solicitors for the plaintiff; and. (b) by failure by the first defendant to afford the plaintiff the opportunity to respond to the "Submissions in Response" by the second defendant dated 21 May, 2001. 3. An order that the determination of the first defendant made on 22 June, 2001 be quashed. 4. A declaration that the plaintiff is entitled to respond to the second defendant's "Submissions in Response" dated 21 May, 2001. 5. An order that the first defendant hear and determine the application made by the plaintiff when the law so allows. 6. Costs. 7. Such further order as may be appropriate. GROUNDS: 1. The first defendant was at the time prevented by the terms of the Liquor Amendment (Approved Gaming Devices) Regulation 2001 from making its determination. 2. The first defendant failed to observe the rules of procedural fairness not affording the plaintiff an opportunity to respond to the second defendant's "Submissions in Response" dated 21 May, 2001. 3. The first defendant was in error in approaching the application made by the plaintiff as one which should only be granted if it is established that it is unlikely that there would be a detrimental impact on the local community as a result of granting the application." 11 The matter came before me as the duty judge on Monday 6 August 2001. On that occasion, the Fairfield City Council appeared, as did counsel for Mr Penna. There was a submitting appearance on behalf of the Board. The representative of the Fairfield Council indicated that he had instructions on behalf of his client to consent to the making of the declaration sought in paragraph 2 and had nothing to say in opposition to grounds 1 and 3. The Council would submit to such order as the Court was prepared to make, save as to an order that the Council pay the costs associated with the application. The council then sought to withdraw and was given permission to do so. 12 The hearing was then adjourned until today, Thursday 9 August 2001. It has proceeded ex parte with Mr Penna represented by Mr Austin QC and Mr Lawry of counsel. I indicated at the outset that in the absence of a contradictor, I felt some diffidence in making declarations in terms of paragraph 1 and indeed dealing with grounds 1 and 3 in the grounds which accompany the summons. 13 It appears to me that there may be things that could be said in opposition, especially to ground 3, and it was therefore desirable that steps be taken to have the Attorney General appoint a contradictor, or at least to draw to the attention of the Board the absence of a contradictor to permit them the opportunity of reconsidering their position. It did appear to me, however, that there was some substance in the suggestion which underlies ground 1 that the Board inadvertently may have overlooked regulation 46AA(3) of the Liquor Amendment (Approved Gaming Devices) Regulations 2001 made on 19 April 2001. That Regulation is in these terms: "The Court or the Board cannot, while this clause is in force, determine an application made to it by a hotelier before the commencement of this clause to impose, vary or evoke a condition of the hotelier's license so to authorise the acquisition, keeping, or the use or operation of more approved gaming devices than were lawfully acquired, kept in the hotel and used or operated in a hotel immediately before the application was made." 14 However, since it appears to me that the matter can be dealt with by reference to ground 2, I do not believe it necessary for me to make any final determination in respect of that ground, or indeed, ground 3. 15 Turning to ground 2, it is essentially a complaint that the Board failed to observe the rules of natural justice in that it failed to apprise Mr Penna of material which was put in opposition to his application and to which the Board ultimately had reference when making its decision. It has been determined that the Board is bound by the rules of natural justice in dealing with issues under s74 (Wilkie & Anor v Attorney General for New South Wales and Liquor Administration Board (Foster J, unreported, 9/12/86, page 10). 16 The document prepared by the council responding to the further submission of Design Collaborative Pty Ltd is clearly an important document. The terms of the judgment by the Board make it plain that it was taken into account, and, indeed, on some issues accepted in respect of the matters which required determination. I am informed that the plaintiff, at any further hearing, would wish to respond to that document. Indeed, that was the course foreshadowed by his solicitors in the letter of 2 May 2001. 17 For these reasons, it seems to me that it is appropriate to make the following Orders and Declarations: 1. I make a Declaration that the plaintiff was denied procedural fairness; (a) by failure to respond to a written submission made by the plaintiff as contained in a letter of that date, dated the 2 May, 2001 from Slater & Elias, solicitors for the plaintiff; and (b) by failure by the first defendant to afford the plaintiff the opportunity to respond to the "Submissions in Response" by the second defendant dated 21 May, 2001. 2. I make an Order that the determination of the first defendant made on 22 June 2001 be quashed. 3. I make a Declaration that the plaintiff is entitled to respond to the second defendant's "Submissions in Response" dated 21 May, 2001. 4. I make an Order that the first defendant hear and determine the application made by the plaintiff when the law so allows. 5. I make no order as to costs. ******* Last Modified: 08/13/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.